Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Howarth of Newport Excerpts

Tuesday 24th January 2012 Lords Chamber

[Lord McNally]

Yes. I have been one of the strongest supporters of post-legislative scrutiny, and I am just putting it in place in terms of the Freedom of Information Act. The Justice Committee in another place has just taken from the Ministry of Justice a full assessment of how that Act has been working and will then take evidence. I would have thought it inconceivable that such post-legislative scrutiny would not examine the issues relating to clinical negligence.

[Lord Howarth of Newport]

I apologise to the Committee that I was not able to be here at the beginning of this debate. In the Minister’s view, does the legislation as drafted provide the flexibility to enable the Lord Chancellor to respond constructively and effectively to such findings as a review might produce at a suitable interval?

[Lord McNally]

Yes. If it did not, presumably we would bring forward primary legislation to correct it, but that is the parliamentary process.

--- Later in debate ---

[Lord Beecham]

The Minister expects us to be grateful for this activation of a pretty redundant provision. I cannot say that we are and clearly the noble Lord, Lord Thomas, is not either. Of course, the noble Lord’s example would no longer apply because civil legal aid would not be available for the personal injury case to which he referred, but it would occur in other cases. In one of these exceptional cases or if, for example, there is a move on clinical negligence, a huge slice of not only general damages but also—as I understand the Minister—special damages accrued to the date of the hearing might be taken. In a clinical negligence claim, that is potentially a very substantial sum. The noble Lord, Lord Thomas, is absolutely right. Successful claimants are being asked here to substantially help underwrite the costs of the system. That is not something that successful claimants should be asked to do.

We will revert to this when we come to Part 2. It seems that the burden has shifted from losing parties, and in particular losing defendants, to successful defendants. The Minister refers to the fact as if it were common knowledge that this would be moved. Maybe I have missed something—and so has the noble Lord, Lord Thomas. Neither of us seems able to recall this proposal being ventilated in debates—not in this House or Committee, or generally as part of this process. I am certainly not happy with this. We may well revert to it on Report. If it activates a provision that was laid down in 1999, it should not be done. As my noble friend will confirm, I was critical from time to time of the previous Government’s policy, particularly in relation to criminal justice and criminal legal aid. Had I known about this aspect, I might have been critical at an earlier date—presumably with no effect, either. This is not something we can let pass.

[Lord Howarth of Newport]

If this provision is activated, as the Minister told us that the Government intend it should be, would the likely effect be that damages awards were increased by the courts to ensure that claimants got appropriate damages and at the same time, unfortunately, to underwrite the requirement that part of the proceeds of damages should go to boost the funds of the Ministry of Justice?