Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Wallace of Tankerness Excerpts

Wednesday 7th March 2012 Lords Chamber

[Lord Beecham]

My Lords, some nerve damage is being sustained by the noble Lord. Let us, however, concentrate on the issue, which is rather more important than claiming credit for amendments; namely, the future of patients who undergo clinical negligence and who have claims. We have heard much talk about equality of arms in litigation. I fear that what the Sophies of this world may face is more akin to a farewell to arms. That is the danger we face if legal aid is not extended.

There is a hierarchy of amendments before us tonight. Of course I endorse the Government’s amendment, as far as it goes. Equally, we support the amendment of the noble and learned Lord, Lord Lloyd. However, for us the best amendment—because it effectively embraces both the others—is that tabled by the noble Baroness, Lady Grey-Thompson. We wish her well should she decide to test the opinion of the House at an appropriate moment.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I think that it is evident to the House that we have had a very important, serious-minded and sensitive debate. I listened to many of the speeches at Second Reading when many of these points were aired, not least on perinatal and neonatal injury. I also responded to the debate in Committee when, again, passion and concern was expressed in all parts of the House.

The debate benefited from noble Lords’ experience. My noble friend Lady Eaton referred to her personal and professional experience. My noble friends Lord Faulks and Lord Carlile have professional experience in the legal sphere, as has the noble Lord, Lord Clinton-Davis. While I anticipate that I am not going to be able to bring succour to all those who spoke, I hope that in responding to the debate I may indicate that this is an issue that the Government have treated seriously, and on which they have sought to respond to many concerns expressed in earlier debates. We believe that the provisions that we are putting in place provide a proper means of addressing these important issues.

Concerns were expressed at Second Reading and in Committee about the serious and complex cases involving brain-damaged babies for whom a conditional fee agreement might not be able to be secured, and thus they would need to rely on exceptional funding under Clause 9, which could leave their families in an uncertain position. For that reason, the Government brought forward Amendment 68. I welcome the fact that it was welcomed by the noble Lord, Lord Beecham, on the opposition Front Bench, and by my noble friends Lord Faulks and Lord Thomas of Gresford. My noble friend Lord Carlile said that it was a moment—perhaps a very rare moment—of ministerial bliss this evening; and the noble Lord, Lord Wigley, accepted that it was a significant concession. As I indicated, it was brought forward in recognition of the concerns raised, and to put beyond doubt that legal aid will remain available for babies who suffer brain injury at birth that will lead to a lifetime of care needs.

We recognise that in these cases there are difficulties in obtaining funding through CFAs because of the extent and expense of the investigations required. We stated that we expected to spend about £6 million on legal representation in clinical negligence cases that merited exceptional funding through Clause 9; and we said that we expected a significant proportion of the £6 million to be spent on serious infant brain-damage cases. Given that fact, we decided that it would be appropriate to bring these cases back in scope. We hope that this will provide certainty to families and make the application process more straightforward.

The amendment provides funding for claims for medical negligence causes of brain injury as a result of which a child is severely disabled. I listened to, and understood, the inevitable concerns expressed about where one should draw a line, and I will say something about that. The noble Lord, Lord Howarth, spoke very briefly but with a weight of personal experience, and asked whether we could identify the issues of principle that underpinned the amendment. Our intention is to cover cases of medical negligence where the child is most vulnerable: during its time in the womb, during delivery and immediately afterwards. For that reason, the amendment provides for funding in cases where negligence occurs in the period beginning with the mother’s pregnancy and continuing until eight weeks after birth. We recognise that premature babies are in a particularly vulnerable situation. That is why the amendment also provides that where a baby is born prematurely, the eight-week period will be taken to start from the point at which the mother would otherwise have begun her 37th week of pregnancy.

Because our intention is to cover birth and pregnancy-related negligence, we have had to draw the line at some point after birth. The amendment refers to the eight-week period because it is in the first few weeks of life that a child is at their most vulnerable. This period is also one in which postnatal medical care is expected to take place. It is also provided for in the guidance from the National Institute for Health and Clinical Excellence entitled Routine Postnatal Care of Women and their Babies. In cases where negligence occurs beyond the eight-week point, there will remain a safety net in the form of the exceptional funding scheme under Clause 9. I will say more about that when I address the amendments tabled by my noble friend Lady Eaton and the noble Baroness, Lady Grey-Thompson. I will address the question of whether the failure to fund would amount to a breach of the individual’s rights under the European Convention on Human Rights.

It is important to stress that exceptional funding decisions will necessarily be taken by the director on a case-by-case basis. My noble friend Lord Carlile asked if there could be a multi-party action to satisfy the Clause 9 criteria. He will be among the first to recognise that it is difficult and possibly unwise to speculate about hypothetical cases. However, in principle it would be possible. Each application would be assessed against the criteria, and it may well be appropriate to fund the lead case in a claim if there is a requirement for it to be funded under, for example, Article 6 considerations. It may be the case that other claims could then progress on a CFA basis. The question would turn on the individual case, but there could be a lead case where failure to fund it would amount to a breach.

My noble friend Lady Hamwee asked what was meant by enforceable European Union rights. They are rights to legal aid which might have direct effect in domestic law. An example would be rights enshrined under Article 47 of the European Union Charter of Fundamental Rights, which provides the equivalent of Article 6 protection in cases falling within the scope of European Union law.

Amendment 13, moved by the noble and learned Lord, Lord Lloyd of Berwick, seeks to bring into scope civil legal services for obtaining multiple expert reports in medical negligence cases. He indicated that government Amendment 68 would provide legal aid for cases where the most expensive and extensive medical reports would be required, and that his amendment would cater for the remainder. However, we believe that it would not be limited to the remainder of those cases that are presently funded by legal aid. Solicitors currently have to choose whether to use a legal aid route or a CFA route to fund a case. Only 18 per cent of cases where the funding method is known use legal aid. As my noble friend Lord Thomas of Gresford indicated, some 82 per cent of cases proceed down a conditional fee agreement route.

The amendment would open up legal aid to many cases that are funded by way of CFA, and could mean that lawyers who currently have to carry the no-win no-fee risk to get their success fee could apply for legal aid to cover the expert report in every case where their client is financially eligible, and still get their no-win no-fee success fee in respect of their other legal costs. This is not a fair balance for the taxpayer. It could also result in a significant expansion of the legal aid scheme. The taxpayer should not be required to pay where these cases have already been taken forward and paid for by alternative means. The position would also be limited to those who are financially eligible for legal aid. That would mean that those who are outside that eligibility—which could be many people—would have no assistance in funding expert reports in criminal negligence cases.

I recall that in Committee the noble and learned Lord presented a torrent of figures, and I indicated that we would look at them. I encouraged officials to look at them and I know that there was some engagement, that he met my noble friend Lord McNally and that there were exchanges on these figures. In this situation, we must agree to differ. The Ministry of Justice analysts carefully reviewed the calculations. We sought to explain the Ministry of Justice’s calculations. The matter is very technical; I have tried to get my head round both sets of figures.

--- Later in debate ---

[Lord Clinton-Davis]

If there is no consensus between the experts, what happens then?

[Lord Wallace of Tankerness]

It is very evident. We want to encourage joint expert reports, but clearly there will be cases when that is not possible because there is a division of opinion. In our debates on Monday evening, the noble and learned Baroness, Lady Butler-Sloss, indicated some of the very conflicting expert reports in cases she had heard about shaken baby syndrome. That is not clinical negligence, but it is clearly an example of conflicting reports. Nevertheless, where it is possible to go towards joint expert reports, it should be encouraged.

My noble friend Lord Thomas of Gresford also quite properly drew attention to the fact that while we have quite rightly focused on some of the very serious cases and consequences of clinical negligence, in many cases of clinical negligence the damages could be under £20,000. Your Lordships may be aware that the Government have recently announced the extension of the low-value claims process for personal injury claims. We are working closely with the National Health Service Litigation Authority and claimant lawyer representatives to set up a pilot for dealing with low-value clinical negligence cases. These discussions are ongoing. They will be a valuable way of trying to identify ways in which some of the lower value cases can be dealt with.

My noble friend drew the attention of your Lordships’ House to the scheme in Wales under the NHS Redress Act 2006. Clearly that is something we would look at, although I note that it is tied in with a complaints and concerns regime and does not necessarily replace the existing judicial system. Claimants are still free to pursue a claim. I have always thought that it is one of the strengths of devolution that different ways are found in different parts of our United Kingdom to address issues such as this. It is only right that we look at the experience in different parts of the United Kingdom, and if there is something to learn we should be willing to learn it.

I am obliged to refer to government Amendments 26 to 30 and 58 to 67. They are technical in nature. My noble friend Lord McNally has written to all Peers describing their detail, so I do not propose to detain the House further.

We have listened to very strong representations in earlier debates about clinical negligence in the context of perinatal and neonatal cases. We have sought to address it through conditional fee agreements, which are increasingly part of the way in which clinical negligence cases are dealt with, and through the exceptional funding. We are ensuring that there is provision in other cases. As I have indicated, I regret that we have not been able to have a meeting of minds with the noble and learned Lord, Lord Lloyd of Berwick. I will place the Ministry of Justice’s calculations in the Library of your Lordships’ House. When those who wish to look at them have done the calculations and wish to come back to us, we will seek to give them a response. In these circumstances, I ask the noble and learned Lord to consider withdrawing his amendment.

[Lord Lloyd of Berwick]

My Lords, I address only my own amendment. It is very limited in scope and is designed to save money. I am very grateful for the support of the noble Lords, Lord Wigley, Lord Newton and Lord Faulks, the noble Baronesses, Lady Mallalieu and Lady Finlay, and other noble Lords. It seems to me that they have demonstrated conclusively that the financial argument in favour of this amendment is irresistible. It is simply not good enough for the Minister to say by way of answer that we must agree to differ on the figures. The figures supporting the case that I have put forward were put before the Government on 2 March. Indeed, they have had similar figures since we were in Committee, but they have not answered these and it is now 7 March.

If the Government are as serious as they keep on saying they are about saving money, they ought to accept this amendment. Even on their own figures, they would save £6.2 million. I wish to test the opinion of the House.