Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Eaton Excerpts

Wednesday 7th March 2012 Lords Chamber

[Baroness Eaton]

My Lords, I speak in support of Amendment 46. As noble Lords know, this amendment seeks to protect access to legal advice, and when necessary to legal representation at tribunals and in court for all children under the age of 18. It seeks to maintain the system as it is at present, working reasonably well at low cost and protecting the rights of the most vulnerable children in the land. I strongly support the Government’s determination to drive down the deficit and attack waste in public expenditure wherever it is found. However, I also strongly support policies that do not create mountains of red tape and do not push unbudgeted costs on to local authorities.

It is because we must do everything possible to reduce the deficit that I cannot support the proposals to remove legal aid from 6,000 children every year, as would happen if the Bill passed without amendment. That would cause enormous knock-on costs to the public purse that will far outweigh the £6 million to £7 million that the Ministry of Justice believes it can save from its legal aid budget. As a matter of principle and conscience, I cannot support a proposal that will see a child go into the courtroom alone to argue his or her case against a barrister paid for by the taxpayer. This is what will happen in hundreds of cases every year where children find that they must contest decisions about their lives taken by the Home Office, education authorities and social housing providers.

By removing legal aid for welfare benefits advice to children in their own names, the Ministry of Justice believes that it will save £260,000 a year. This is at a time when there has been a complete failure to collect £1.5 billion in fines to be paid by criminals.

There can be no doubt that if a child has suffered harm because of a decision made by a public authority, and if the child is unable to challenge that decision, there will be consequences and damage to that child’s life which the rest of society and the taxpayer will ultimately pay for. We will reap what we sow.

We should remember that the ministry’s own impact assessments, published in support of the Bill, admitted that it created a risk of “increased criminality” and increased costs to other government departments and local authorities. When the Justice Select Committee in the other place asked the ministry to quantify these unintended costs it received a reply that should give us all pause for thought. The ministry’s response to the consultation on the Bill says:

“The lack of a robust evidence base means that we are unable to draw conclusions as to whether wider economic and social costs are likely to result from the programme of reform or to estimate their size”,

and that it is,

“not possible to quantify accurately these wider costs”.

In other words, we are flying blind.

The Bill asks us to support spending reductions that even its authors cannot say will ever be achieved. The legal aid budget reductions have the extremely unusual distinction of making some of the most hardened supporters of spending cuts feel very uneasy. I put myself in that category. The noble Lord, Lord Tebbit, says he fears the cuts to legal aid for children in medical negligence cases go too far. The chief executive of the TaxPayers’ Alliance, Mr Matthew Elliot, says:

“Almost everyone who has looked at these particular cuts thinks that too many of them will end up costing taxpayers more than they save”.

We must listen to the people and organisations who are going to be left to pick up the pieces if children cannot get help with their legal problems.

I would like to tell noble Lords about some of the detail as it will affect local authorities and children in immigration cases. Last year there were 2,490 immigration cases involving children in their own right. These will mainly be children who are not living with their parents, sometimes after escaping difficult family circumstances, or having been victims of trafficking. On Report in the other place, the Justice Minister said:

“Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them, whose role would include helping the child to gain access to the same advice and support as a child who was permanently settled in the UK. They could also offer assistance with filling in forms and explaining terms, and give emotional support”.—[Official Report, Commons, 31/10/11; col. 689.]

So here we have a knock-on cost of the kind the ministry says that it cannot quantify accurately.

The Local Government Association, of which I am a vice-president, says:

“Transferring responsibility to councils in this manner, without consideration of the funding implications and at a time when they are already processing reductions in funding for children's services, will place resources under considerable pressure. This will have a particularly detrimental impact on the most vulnerable children who make up the largest portion of children placed in emergency or short-term care”.

The example which the Local Government Association gives of children who will be affected in this way are children who have been trafficked into the UK from other EU states, who cannot claim asylum. It is hard to think of a more desperate or vulnerable group of children. The Department for Communities and Local Government knows very well that there will be extra costs to local authority social services departments if legal aid is withdrawn from these children.

I would like to ask the Minister this evening to inform the House about the precise level of costs that will be borne by local authority social services departments, which they will then claim back from his department via the DCLG in a tangle of expensive, time-consuming and wholly avoidable red tape.

My question to the Minister and noble Lords on all sides is: how is it that we are keeping legal aid for about 35,000 cases every year involving children in their own right, but withdrawing it from 6,000 children with civil justice problems? They will all be very similar children—trusting, scared, brave and deserving of our protection. The Government have gone a long way towards maintaining civil legal aid for most children; they need move only a few steps further to protect legal aid for all of them.

[The Lord Bishop of Exeter]

My Lords, I speak as the father of a daughter with Down’s syndrome, who over the years has had to face complex welfare benefit issues. My own experience has taught me that it is not only the severely disabled for whom welfare support is complex—it can be even more so for those who suffer from a range of disabilities, each of which may in itself be classed as mild. There have been times when my daughter has been let down by the system and then, being extremely vulnerable, she has needed those able to act as advocates on her behalf.

My daughter, though, is one of the fortunate ones. She comes from a supportive family, has reasonably articulate parents and a mother who has used both her personal and professional expertise to support advocacy networks and provide advocacy support for others. What of those who do not have such resources available to them? Many of them depend for legal and procedural advice on not-for-profit agencies such as Citizens Advice. Such organisations provide essential help to ensure that disabled people have access to the benefits and support to which they are entitled, but these agencies also need support in the vital work that they do.

What Amendments 11 and 12 seek to achieve is important in providing the safety net that will enable such access and support to continue. If either were to be accepted, it would offer provisions much narrower in scope than those in existing legislation but would ensure that the resources were there for those who face both disability and, additionally, the kind of complex welfare benefits issues that arise from their disability, in order to be able to challenge decisions that adversely affected them through review, supersession or appeal.

As the noble Baroness, Lady Doocey, has pointed out, we are at a time of unprecedented upheaval in the welfare system; I see that day to day for myself. I do not criticise that; in fact I am in favour of much of that change and I understand it. Amid such wholesale change, though, with its attendant impact on the lives of some of the most vulnerable in our society, safeguarding the minimal access to legal aid in these circumstances is more important and necessary, rather than less.

I turn to Amendments 21 and 46, both of which I support. I do not add much to the weight of words that we have already heard in support of them, but I want to return to the Minister’s assurance, which has already been quoted, that as far as possible the intention of the Government is that where children are involved, legal aid will still be provided. We have also heard that on the basis of the Legal Services Commission’s data for 2009-10, around 6,000 children under 18 will no longer receive legal aid, including cases regarding immigration, welfare and education.

In that context, I return to the assurance offered by the Government that, for cases that would be excluded from the scope of legal aid, there would be a safety net in the form of the exceptional funding scheme. However, that in itself raises a number of questions. How adequately will “exceptional” be defined? Will it be driven by need or by available funding? Will there be rights of appeal? What will its real impact be?

We have heard how the Children’s Society estimates that just over 4,000 cases for under-18s will be excluded from scope and not receive exceptional funding, yet, according to the Government’s own estimates, ensuring that all children under 18 had access to legal help and, crucially, representation would cost just £10 million—a relatively small cost for a very great gain. However, if legal aid is not to be available in these circumstances, where exactly are alternative sources of funding to come from?

--- Later in debate ---

[Baroness Grey-Thompson]

My Lords, I will speak to Amendment 15, which is in my name and in the names of the Baroness, Lady Finlay of Llandaff, the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Beecham. As my noble and learned friend Lord Lloyd said, this amendment seeks to retain clinical negligence cases within the scope of legal aid. It is completely non-discriminatory, is not based on age or condition and saves money.

The Government have so far argued vigorously that many cases would be funded by the proposed exceptional funding mechanism and that it was not necessary to guarantee this by retaining them in scope. While it is an improvement to have the situation clarified and legal aid guaranteed for at least this small band of cases, that is, in effect, all that the Government have provided—clarification and a guarantee of what was already on the table.

I am pleased that the Government have moved forward on the retention of obstetric cases in scope, as opposed to relying on the exceptional funding route. This is very positive. In its statement announcing the change of approach, the Ministry of Justice said:

“We also agree that clinical negligence claims in obstetrics cases which result in severe disability must receive legal aid”.

It went on to say:

“A safety net will continue to exist for other more serious and complex clinical negligence cases where there is a human rights issue”.

This safety net is the same one that we were told meant that there was no need to retain even the obstetric cases in scope for legal aid because exceptional funding would take care of them. It is perhaps logical to conclude that exceptional funding is no more of an adequate safety net for other highly complex and deserving cases than it was for obstetric cases. Just about every clinical negligence case is complex, which is why, over time, successive Governments have agreed that clinical negligence needs to be kept in scope for legal aid. Not only would taking most clinical negligence cases out of scope result in higher costs to the taxpayer overall, but those costs will still be there but pushed somewhere else. Even more worrying, many people will be denied access to justice.

The independent report by King’s College London identified that the unintended consequences of taking clinical negligence out of scope for legal aid would be almost three times the projected saving for the Ministry of Justice budget—costs of £28.5 million set against a “saving” of £10.5 million. These clinical negligence cases which are not in scope for legal aid will in future be able to take their cases forward either through no-win no-fee agreements or with the benefit of exceptional funding. Under the new system, even if an expert report deems a claim to be valid, there is no guarantee that the claimant will receive representation under a conditional fee arrangement. “After the event” insurance is expensive, if, indeed, it is possible to obtain it. I do not believe that exceptional funding is a sufficient safeguard.

If the Minister revisits the responses to the consultation on legal aid, he will find that the vast majority of lawyers involved in clinical negligence cases say that they will not be able to take on many of these cases under the new arrangements. The noble and learned Lord, Lord Lloyd, cited Lord Justice Jackson, who said that the most expensive and inefficient mechanism that it is possible to devise is being put forward to achieve this policy objective. I agree with that comment. Solicitors will be forced to cherry pick only the most obvious cases of negligence, with others being left with no way of moving forward. I do not believe that this is acceptable in our society.

[Baroness Eaton]

My Lords I ask noble Lords to support Amendment 31, which stands in my name and in the names of my noble friends Lord Newton and Lord Cormack and the noble Lord, Lord Crisp.

Amendment 31 would allow legal aid for all children who are victims of clinical negligence and not just some children, which, unfortunately, is the current position of my Government. I have both personal and professional experience of these cases as a mother and a former leader of a metropolitan district council. I would like to tell noble Lords something of my experiences. When my eight year-old boy was diagnosed with a psychosomatic illness, my husband and I went through the worst time trying to persuade doctors that something was seriously wrong. Eventually, the diagnosis was found to be faulty and we discovered that our son was in fact suffering from a very virulent form of bone and tissue cancer. Even though we had a very strong clinical negligence case, my husband and I decided not to pursue it because it would be too stressful and we had the resources to support my son. However, not every family is in this privileged position, and I met many through those dark times, and since, who needed to make a claim so that their families could survive.

I have seen at first hand how compensation for medical negligence allows parents to continue to care for their children in their own homes. It does not make it easy but it does make it possible. I have also seen what happens to parents who do not receive financial compensation. Caring for a child who has been the victim of a medical accident and is severely disabled, sick or injured normally gets progressively more difficult and can frequently result in separation and divorce and depression and other mental health disorders in parents. It can also result in an inability to care for other children in the household and parents losing their jobs, becoming homeless and having to be rehoused in social housing, and with the victim having to be cared for in residential homes away from their family. In other words, everyone ends up suffering—a child who is the victim, the parents and the wider family and the taxpayer. As a councillor, I know that all too frequently the local authority has to pick up the pieces and the financial cost.

The proposals in the Legal Aid, Sentencing and Punishment of Offenders Bill can only make a bad situation worse. The concession proposed by the Government allows legal aid where a baby is the victim of clinical negligence from the period of conception through to eight weeks after his or her due date in the case of neurological injury only. It relates only to babies who have suffered damage to their brain. As I understand it, children with physical disabilities resulting from clinical negligence at birth are not covered, and conditions such as Erb’s palsy would not fall into the category of receiving aid. This means that if a full-term baby is the victim of clinical negligence when it is 73 days old, he or she will be ineligible for medical negligence. However, if he or she suffers neurological damage two days earlier at 71 days, they can be granted legal aid. This seems a rather arbitrary and upsetting situation. I ask noble Lords to try to imagine how they would explain to their friends, family and neighbours why a baby who suffered neurological injury at birth could have legal aid but a baby blinded at birth, say by a forceps delivery, could not. Last year, £4.6 million was spent on legal aid for children who were victims of clinical negligence. The majority—estimated to be around £3 million—went on legal aid for babies who suffered neurological damage. As I say, this group has been conceded by the Government, so in reality we are arguing about a further £1.6 million or so to cover all remaining children.

I wish to tell noble Lords about Sophie Tyler from Newport. When Sophie was 14 years old, she went into her local hospital for a routine bladder operation. She underwent an epidural, which, sadly, went very wrong. Sophie is now paralysed from the waist down and will always be in a wheelchair for the rest of her life. Sophie is now 17 years old. She took action with the help of legal aid, and three years on she has received a medical insurance payout. This compensation will never make amends for what has happened to Sophie, but it will make it possible for her to live independently with support. In the cases of children, compensation pays for extensions to be built downstairs with bathrooms and bedrooms so that children do not have to be carried upstairs, which is more difficult when they become adults. Compensation pays for the widening of doors to allow wheelchair access and for hoists, electric wheelchairs and other specialist equipment not available on the NHS. It pays for occasional night-time and holiday respite care so that parents can get some much needed sleep and it pays, where possible, for extra tutoring to make up for lost schooling along with additional physiotherapy and holidays. Above all, compensation allows parents to carry on in the knowledge that there is someone who will take care of their child after they themselves die. Believe me, this is what worries parents more than anything else.

I therefore ask noble Lords to support children like Sophie next year and the year after—children who, through no fault of their own, become the victims of medical negligence and need legal aid to pursue their cases. I hope that my noble friend the Minister will concede legal aid for all children and recognise that although the concession proposed by the Government supports children with neurological injury, it does not address the needs of the remaining children who suffer hugely as a result of medical negligence and accident.

[Lord Clinton-Davis]

I follow the noble Baroness, Lady Eaton, with temerity, as she has made a remarkable speech based on her personal knowledge. I thank her for what she has said.

I also speak with experience of clinical negligence cases. I practised as a solicitor for some 50 years and on many occasions during that time came across cases which involved clinical negligence. The Government appear to be suggesting that clinical negligence claims should proceed by way of joint expert reports. I think that that is pretty impractical. Medical and other experts often disagree, and to embark on a joint report is often totally impractical.

Legal aid should be available in all cases of clinical negligence where it appears to the Law Society, or whoever is arbitrating on the issue, to be practical and necessary. The ability to go to joint experts, where it is proved to be absolutely essential, should remain part of our legal process, and lawyers ought to be given the opportunity to do precisely that. It would save rather than expend more money if we were able to embark on such a policy, and that has been proved in practice time and time again. Why are we embarking now upon the totally impractical idea of a single expert?