Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Bill Esterson and Lord Clarke of Nottingham(12 years ago)
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Mr Clarke
It would be reckless of me to try off the cuff to make a tight definition of a point of law. It is about a situation where a particular question arises out of the interpretation of a regulation and there is no clear and binding precedent for exactly what the law should be when it comes to applying it to the set of facts involved, and it is then up to the tribunal judge to decide. Following the concessions that I have introduced about upper tribunal and Court of Appeal cases, the judge will certify that a point of law is involved in a case because he thinks that it is one in which the guidance of the upper tribunal or the Court of Appeal is required on what exactly the law will say that it means. That is what is meant by a point of law. We have made considerable concessions. No one is arguing about the vulnerability of groups of people who are arguing about their welfare benefits. The Bill is about how much money the taxpayer pays to how many lawyers. We are trying to concentrate on spending that money on paying lawyers for cases in which a lawyer is required to sort out a welfare benefit dispute. That is the basis on which our amendments were produced.
Let me turn finally, and as briefly as I can, to clinical negligence and legal services for children. That has been debated throughout the passage of the Bill in this House and in another place. We have listened carefully to the concerns that have been raised about the impacts of these reforms on children. I can again assure the House that the provisions in the Bill will safeguard the vast majority of the spend on cases involving children, because we have covered all the most serious cases of clinical negligence—about 96%.
I remind people that the underlying problem in the tricky area of clinical negligence cases is that all the money that we spend on compensation, legal advice, expert witnesses and so on comes out of the budget of the national health service. That now takes up a proportion of the NHS budget of a kind that I would never have contemplated all those years ago when I was a Health Minister struggling with what I thought were difficult budgets. The more one allows to be taken out of the budget for lawyers and expert witnesses in claims for compensation, the more one cannot ignore the impact that that is having on what is available for patient spend. There is no doubt that this has been a bit of a growth industry in recent years, particularly since the changes to the no win, no fee arrangements about 10 years ago. There has been an increase of 50% or so in the number of claims in the past five or six years. The last annual report of the NHS Litigation Authority estimated that the unfunded liabilities for clinical negligence claims totalled £16.8 billion, which is a cool doubling of the figure since 2006.
The bills paid to the lawyers of criminal negligence claimants more than doubled from £83 million in 2006-07 to £195 million in 2010-11. The damages paid to claimants have gone up somewhat more slowly, but the lawyers’ bills have increased substantially. One reason for that is that the fees paid to and costs incurred by the lawyers and expert witnesses acting for the plaintiffs are about three or four times as much as the Litigation Authority, as the defendant, pays for its lawyers and expert witnesses. The costs and the claims are rising exponentially. Although this is an area that we should approach with care, the clinical negligence industry has been doing well over recent years, and that has been funded entirely by budgets that would otherwise be available for patient care.
Having given that somewhat stark background, I will turn to Lords amendment 171, which seeks to bring all such cases back into the scope of legal aid when a child is a party. In our opinion, that would be unnecessary and wasteful. As I have said, under our plans, the overwhelming majority of the existing support for children will continue. For the record, that includes child protection cases, civil cases concerning the abuse of a child, special educational needs cases, and legal aid for children who are made parties to private family proceedings.
In addition, we have made funding available in the final set of amendments under consideration in this group for cases of clinical negligence involving claims for babies who suffer brain injury at or around the point of birth. I state categorically that as a result of the Government’s Lords amendment 216, any baby who, through clinical negligence, suffers brain damage during childbirth, resulting in severe disability, will receive legal aid. The amendment provides legal aid for clinical negligence claims for babies who suffer brain injury during pregnancy, at birth or in the immediate post-natal period, leading to a lifetime of care needs. I also make it clear that if a baby were to be injured in an operation, say at six months, legal aid would be available through the exceptional funding scheme, where necessary, to ensure the protection of the individual’s right to legal aid under the European convention on human rights.
When we introduced the Bill, we believed that we had covered all those cases through the exceptional funding scheme. Doubts were expressed continually in this House and in another place about that, so we now have this set of amendments to put it beyond doubt in the Bill.
By contrast, we cannot support Lords amendment 172, as I have said. That amendment would provide public funding for the remaining minority of medical negligence claims with child claimants, despite the fact that many of them are relatively simple, do not involve lengthy and detailed investigations of the kind that we are trying to catch in Lords amendment 216, and are suitable for funding through a conditional fee agreement in exactly the same way as for adults. In line with the principles that underpin the Bill, the state should not fund cases that can be provided for by alternative means.
Bill Esterson (Sefton Central) (Lab)
The Justice Secretary has moved on from Lords amendment 171. I am concerned about children in care and care leavers, who are among the most vulnerable children in our society and whose life chances are badly affected by their situation. There is a grave risk that children in care and care leavers will be massively over-represented in the relatively small number of people who will be excluded under the Government’s proposals. If that happens, it will seriously affect the life chances of a group of children who are already very vulnerable and who often do not have adults to advocate for them.
Oral Answers to Questions
Debate between Bill Esterson and Lord Clarke of Nottingham(12 years, 7 months ago)
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Mr Clarke
I agree that there is a problem. Let us be clear. Travellers, like anybody else, are entitled to the protection of the law and are also subject to the law. We have to deal with Travellers on the basis of how they behave, not start going against them as a class. But we have to look at how the operation of the law at present is enabling people to lead a somewhat odd way of life which is totally at variance with that which is led by the rest of the population, and to seek to disregard laws to which everybody else is subject. I am not sure that the Human Rights Act and human rights legislation generally is terribly relevant, but if it gets drawn in, we will look and see what it can do to help with the case.
Bill Esterson (Sefton Central) (Lab)
T8. The Government cancelled the building of the Maghull prison after work had already started. Will the Lord Chancellor take this opportunity to tell my constituents what plans he has for the site, to allay their concerns about the Maghull prison site and nearby greenfield projects, which developers are eyeing up?