Legal Aid, Sentencing and Punishment of Offenders Bill

Elfyn Llwyd Excerpts

Monday 31st October 2011 Commons Chamber

[Simon Hughes]

No, it is not pathetic at all. Let me say to the right hon. Member for Lewisham, Deptford that there are four groups of amendments and that we have until 10 o’clock. The Opposition Front Benchers want to press their amendments to a Division, as do other colleagues, including me and my right hon. and hon. Friends. I hope the Minister will be helpful—[Interruption.] No, he originally indicated following my intervention that he was willing to look at the case again. I am determined to win that case. Whether we can win it today is not entirely in my hands. I hope that that is helpful, and I look forward to the right hon. Lady’s continued assistance in ensuring that we win the argument.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

With respect to the right hon. Member for Bermondsey and Old Southwark (Simon Hughes), that speech was absolutely breathtaking. I have a high regard for him, but in this instance, his colleagues in Committee did not issue a single word about this and many other important humanitarian issues. I do not know which audience he is addressing, but no work whatever was done by his colleagues in Committee—I was there.

[Simon Hughes]

I know the right hon. Gentleman was there. As I understand it, this issue was not debated in Committee and no amendment on it was tabled by either Government or Opposition. That is why I am raising it now.

[Mr Llwyd]

Later on, I shall speak to my amendment that partially deals with this matter, and the right hon. Gentleman might wish to join us in the Lobby if I press it to a Division.

I want to be as quick as I can, because other hon. Members wish to speak and we have a lot of work to get through. If the hon. Member for Hammersmith (Mr Slaughter) is tempted to press amendment 74 to a Division, I will encourage my colleagues to follow me into the Lobby.

I should like to speak briefly to amendments 91 to 102, 83 and 103, which are in my name. I listened carefully to the Minister when he referred to amendment 91. He said that the words “or other intimate” are not necessary, which I accept. They probably are otiose, and therefore that point has been dealt with. I dare say that much of what the Justice Secretary will say tomorrow on self-defence will also be otiose, but that is another debate for another day.

Amendment 92 would broaden the definition by removing the words “physical or mental abuse” and replacing them with

“any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)”.

The Minister knows that many people wrote to right hon. and hon. Members and we heard lots of evidence on a subject that has exercised many in the Chamber this evening just as it exercised those in Committee. I have begun to question whether pre-legislative scrutiny is worth anything, because if we get hundreds of pieces of evidence from informed bodies, people at the sharp end and practitioners, and then decide to do little or nothing about them, the process is brought into disrepute.

Amendment 93 would insert the words

“or where an allegation is made that B has been abused by A or is at risk of being abused by A”

to line 4 of page 103. Paragraphs 10 and 11 to schedule 1 provide for legal aid for the alleged victim in family cases involving domestic violence or child abuse. However, they do not provide for aid for the adult against whom the allegation is made. The amendment would bring the alleged perpetrator back within scope. That might sound strange, but I shall explain the thinking behind it in a moment.

Amendment 96 would insert the words:

“Civil legal services provided to an adult in relation to proceedings for financial relief in respect of a child who is the subject of an order or procedure mentioned in sub-paragraph (1)”,

and amendment 97 would add the words:

“Civil legal services provided in relation to proceedings in which the court is considering giving a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances)”.

In responding to points made earlier, the Minister said that the section 37 investigation could well amount to nothing. However, such investigations are not taken lightly. They are always instigated on basic evidence, and caring for that child is not a routine matter, but an extremely important one.

Amendment 98 would add

“Civil legal services provided in relation to proceedings arising out of a family relationship involving a child in respect of whom a court has given a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances); and “family relationship” has the same meaning for the purposes of this sub-paragraph as it has for the purposes of paragraph 10”

to line 39. That would bring within scope both proceedings leading to an order under section 37 of the Children Act 1989 and all subsequent steps in family proceedings after a section 37 order has been made. It would also ensure that the person against whom allegations of abuse are made is brought within scope.

Amendments 100 to 102 are consequential amendments. Their purpose would be to amend paragraph 13, which provides legal aid to child parties in cases that come under the relevant parts of schedule 1, but not to adult parties. That provision will result in unrepresented adults being forced to cross-examine expert witnesses and, in many cases, even the child concerned. The amendments would therefore bring adult parties in such cases within the scope of legal aid provision.

Amendment 103 relates to the director of the Legal Services Commission. We debated in Committee the role of the commission, the independence, or not, of the director in arriving at decisions and the question of whether those decisions will simply be cost-driven. The amendment is designed to deal with those issues. It states that

“the Director must determine that an individual qualifies for civil legal services where the services relate to a matter falling within paragraph 10 of Schedule 1 and—

(a) the individual has been admitted to a refuge for persons suffering from domestic abuse;

(b) the individual has obtained medical or other professional services relating to the consequences of domestic abuse, or

(c) an assessment for the purposes of possible mediation of a family dispute has concluded that the parties need not engage in mediation as a result of domestic abuse,

and in this subsection ‘domestic abuse’ means abuse of the kind to which paragraph 10(1) of Schedule 1 relates”.

The intention is self-evident.

I declare an interest at this late stage in my remarks. I practised family and criminal law for 15 or 16 years as a solicitor and for an equal number of years at the Bar, so I have some understanding of how the family courts work and would therefore gently admonish the Minister: the word “custody” went out of favour about 12 years ago—but that is by the bye. My background in this area of law leads me to believe that these changes might well have a devastating effect on families and, even more importantly, children. Both, of course, are closely interrelated: if it is disastrous for the family, it is obviously additionally disastrous for the young child as well. What is more, I believe that the Government’s decision to press ahead with a weakened definition of “domestic abuse” will result in many women—for it will be overwhelmingly women—entering into court proceedings alone and without legal aid funding.

[Mrs Moon]

Does the right hon. Gentleman agree that the problem is that we are coming from different directions? For Opposition Members, the priority is the protection of women and children who have been abused, who are facing abuse and who live in fear of their lives. For Government Members, the priority is saving money.

[Mr Llwyd]

I have to agree with the hon. Lady, and I would pray in aid another point about the more general civil cases where litigants in person will be 10 times more prevalent in courts than they were previously. That is simply to save money, but actually it will not save money. Instead, it will increase pressure on courts and court time and will be a complete disaster—a dog’s breakfast. It is worth remembering that 40% of magistrates and county courts have been closed and that the Ministry of Justice was looking for a 40% decrease in its first budget—that is rather convenient. However, I have no doubt that she is right, and it grieves me that money comes before the welfare of young children. We are talking about knife crime, juveniles going on the wrong side of the law and so on, and the Bill will do nothing to address that. Instead, I fear that it will make matters even worse, although I hope that I am wrong.

[Catherine McKinnell (Newcastle upon Tyne North) (Lab)]

Will the right hon. Gentleman give way?

[Mr Llwyd]

I will give way, but briefly, because other Members wish to speak.

[Catherine McKinnell]

The right hon. Gentleman is making a powerful case about the impact that the Bill will have not just on women suffering domestic violence, but on children in that situation. Does he agree that there is a significant risk not just that it will not save money for the MOJ, but that it will result in increasing costs across Departments, for social services as a whole and for the future of our society, leaving children in those difficult situations?

[Mr Llwyd]

The hon. Lady is absolutely right. When we take into account housing costs, benefits and all kinds of things, we see that it will be a huge amount of money at the end of the day.

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[Yasmin Qureshi]

Does the right hon. Gentleman agree that the criminal courts accepted many years ago that in criminal cases defendants could not cross-examine victims on matters such as sexual offences? To take away that right in the civil courts, where people are facing equally harrowing situations, is completely wrong and would be at variance with the criminal courts.

[Mr Llwyd]

Yes, and I wonder about the quality of the evidence coming out of that flawed process.

I was assisted in drafting amendment 93 by the Bar Council, which has said that the effect of preventing such distressing and costly consequences is worth looking into urgently. Amendments 94 to 102 relate to proceedings involving children’s welfare. As the Bar Council has said:

“It is not understood why, under Schedule 1, the provision of legal aid is limited to proceedings relating to the children, and not the associated financial remedy proceedings. The child’s economic welfare is important in abuse cases; particularly given the higher incidence of abuse in low-income households.”

Amendments 96, 97 and 98

“would have the effect of bringing within scope…proceedings leading to an order under the Children Act 1989 section 37…and…all subsequent steps in family proceedings once a section 37 order has been made. They would also ensure…that…the person against whom allegations of abuse are made is within scope.”

Amendments 94 and 95 are consequential amendments.

The Minister said in Committee that cases involving financial provision are not a priority for legal aid. I firmly believe that all private family cases should be retained within the scope of legal aid. It is difficult to overestimate the damaging effects on children caught up in untidy, bitter and lengthy disputes. Protecting the interests of children is at the heart of amendments 99 to 102. As the Bar Council has said:

“Paragraph 13 provides for the provision of legal aid for the child parties in cases which come under subsection (1)(a)-(e), but not for the adult parties,”

which, as I have said, will

“result in unrepresented adults being forced to cross-examine expert witnesses and, in many instances, the child concerned.”

Amendments 99 to 102 would have the effect of

“bringing within scope the provision of legal aid for adult parties in such cases.”

I want to talk briefly about amendment 83, my final amendment, which deals with judicial review. I thank the Immigration Law Practitioners Association for its help in briefing me on this amendment. We know that immigration-specific exclusions have been made. In their Green Paper, the Government set out a robust defence of judicial review and the need for retaining legal aid in such cases, saying:

“In our view, proceedings where the litigant is seeking to hold the state to account by judicial review are important, because these cases are the means by which individual citizens can seek to check the exercise of executive power by appeal to the judiciary. These proceedings therefore represent a crucial way of ensuring that state power is exercised responsibly.”

None the less, the Government have compromised their position in immigration cases. My amendment 83 seeks to rectify that anomaly. In explaining why immigration cases are to be exempted from legal aid for judicial review claims, the Government say that they have drawn on the response to the Green Paper by the senior judiciary, who raised concerns about unmeritorious judicial reviews, but in so doing the Government have ignored three key aspects of the judiciary’s proposals.

First, the judiciary’s proposals were advanced only on the basis that

“careful further consideration would need to be given”

before the proposals that the Minister is now pushing could be taken up. However, no consultation has been held on those proposals. What is more, the judiciary also advanced their proposals on the basis that, in principle, legal aid should be available for appeals before the first-tier tribunal. However, the Bill removes legal aid in such non-asylum appeals. Finally, the proposals were advanced on the basis that legal aid should not generally be excluded, but instead be available where a positive decision was made in favour of granting legal aid in any individual case—for example, because the judge decided that it had merit. However, the Bill removes legal aid for such immigration cases, regardless of the merit of any individual case. All in all, this is a sorry state of affairs.

The Government seek to justify the new exclusions for judicial review in immigration cases by stating that public funding is not merited in cases that have

“already had…one full oral hearing,”

yet the provisions exclude legal aid even where there has been no oral hearing. The Government have effectively reversed their position that holding the state to account was of especial importance—hence the need to retain legal aid for judicial review. As a consequence, legal aid will not be available to hold the state to account at any stage, because immigration applications and appeals are also being removed from the scope of legal aid—a Catch-22 situation, or perhaps “Kafkaesque” would be a better description.

To remind ourselves, the changes will affect cases involving non-asylum claimants who face removal from the UK, and therefore from their families, homes and communities. Such claimants include trafficking victims receiving rehabilitative care and treatment; British children and spouses facing permanent separation from their parents or partners; children who have lived in the UK for many years—sometimes all their lives—facing removal to countries that they have never seen and do not know, and where they do not speak the language; adults who have lived in the UK for many years, and sometimes decades, facing removal to countries that they do not know; and victims of torture and other trauma who are no longer at risk of persecution in their home countries, but who are reliant on professional care and treatment.

The position now advanced by the Government is not supported by their stated principles or by the position advanced by the senior judiciary, and would leave a powerful agency of the state—the UK Border Agency—free from effective judicial oversight when exercising powers to remove people from their families, homes and communities, including where doing so will harm their welfare, health or life prospects. For those reasons, sub-paragraphs (5), (6) and (7) of paragraph 17 of schedule 1 have no place in any legislation with any regard for human rights or humanitarian issues.

[Caroline Lucas]

I rise to speak to my amendments 23 and 113. I shall be brief, because we have much business to get through, but let me say at the outset that I support Labour’s amendment 74. However, I still want to speak to my amendment 23, because I am yet to hear anything from the Government to explain why there is such resistance to ensuring that the definition of “domestic violence” set out in the Bill reflects the working definition currently used across Departments, including the Home Office and the Ministry of Justice, and by the UK Border Agency.

In a debate earlier this month, the Minister for Equalities assured me that the Government had

“not sought to change the accepted definition of domestic violence. We are including all forms of domestic violence, physical and mental, in legal aid criteria.”—[Official Report, 12 October 2011; Vol. 533, c. 136WH.]

That commitment is incredibly important to thousands of women in my constituency who have experienced physical and emotional violence, as well as those who have suffered sexual violence, and to all women across the country who desperately need legal aid to try to protect themselves from domestic violence. However, I fail to understand why, having made that commitment, the Government are using a definition of abuse in the Bill that departs from the current, widely accepted definition. My fear—and that of many campaigners working on the issue, including the women’s institute, Rights of Women and Gingerbread—is that using a different definition will weaken protection for women and result in legal aid being unjustly denied in some domestic violence cases.

In the debate on 12 October, the Minister for Equalities pledged to continue to support the robust cross-departmental approach to tackling violence against women and girls—a position also detailed in the Government’s strategy, published last year. However, surely having the same definition of “domestic violence” in use in all relevant legislation and across all Departments is the cornerstone of a joined-up approach. Problems can arise for women if a robust cross-departmental definition is not adopted. For example, in the case of Yemshaw v. London borough of Hounslow, the local authority refused to recognise Ms Yemshaw as homeless as a result of domestic violence, because, although she had been subject to emotional, psychological and financial abuse by her husband, she had not experienced physical abuse. Not until the case reached the Supreme Court was Ms Yemshaw recognised to have experienced domestic violence and thus deemed to be eligible for housing assistance. I appreciate that the definition in the Bill addresses mental abuse, but the key point is consistency. Responding effectively to domestic violence relies on clarity, uniformity and consistency. There is a perfectly good definition already in widespread use, so let us include it in the Bill. If not, may we please have a much more rigorous response from the Government about why not?

Let me say a few words about amendment 113, the purpose of which is comprehensively to preserve legal aid in immigration cases for a person subject to domestic violence. It is also designed to highlight the inadequacy of Government amendment 59, which fails to provide legal aid for a specific group of individuals, namely those subjected to domestic abuse whose immigration status is dependent on their partner, where they have not been granted limited leave to remain for a probationary period at the end of which they may apply for indefinite leave to remain.

In July, the Minister undertook to bring forward a Government amendment that would bring immigration cases involving domestic violence within the scope of clause 10. Of course that is welcome, as was the Minister’s undertaking to consider the first part of my amendment 113, which he made when he got up to speak quite some time ago. What I would love to know from him is exactly when and how he is going to consider it. We are now in the last few days of debate on this really important Bill. At this stage, for Ministers to say that they are going to consider provisions in some unspecified way is simply not sufficiently reassuring.

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[Ben Gummer]

That was one speech. On several occasions, we had three-hour speeches where points were recycled and regurgitated without use to the legislative process. It is unfortunate that the hon. Gentleman claims that I am padding things out, as I hope that I am addressing points not yet raised in this Chamber. I am going to do so briefly. I feel I should do so, as although I am happy to admit that I am not someone from a legal background and that I do not have a previous interest in this area of domestic violence, I have the experience of sitting in the Public Bill Committee and understanding the arguments put both by the Opposition and the Government in this difficult area. I speak as a layman and I hope to offer my support to points made by Members on both sides of the House.

On amendment 113, tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas), we face a small issue about whether people from the European economic area are caught within this legislation. It will cover only a small handful of people, but the inevitable consequence of missing it out—if that happens—is that there will be some travesty and miscarriage of justice precisely in a case where someone falls through the gap. I hope that the Government will carefully examine that suggestion in the first half of the amendment.

I also fully support what my hon. Friend the Member for South Swindon said about undertakings. I have heard much evidence from people practising in this field who give a reasonable argument that a counter-productive eventuality of this Bill is that, if undertakings are excluded, it could end up greatly prolonging cases, and not only to the detriment of litigants: it would also affect the costs of the court. I hope that his constructive and sensible suggestions, which come with considerable experience of sitting on the bench and acting as counsel, will be taken up by the Government as the fair-minded suggestions that they are.

More broadly, we have a problem on self-reporting. I hope that hon. Members, especially Labour Members, will bear me out on this. Anyone who has contact with the family courts and who talks to family judges will know about the impact that allegations of child abuse have had in private law cases. In the opinion of many counsel and judges, in the past few years, allegations of child abuse have increasingly been made far too readily when no substance is behind the claims. It would be unfortunate if, under the new regime, allegations of domestic abuse and domestic violence were made as a precept to gain legal aid, because that would devalue the claims other people make completely legitimately. That is what is happening in the courts at the moment with allegations of child abuse. Several judges have remarked to me that so often is it claimed that one party or another has committed child abuse, it is beginning to numb the senses of the judges hearing those cases. It would be wrong if a similar situation were to arise with this new regime. The Government must therefore phrase the definition of domestic violence very carefully.

I hope that the Government have heard the concerns of Opposition and Government Members, such as those of my hon. Friend the Member for South Swindon, those that my hon. Friend the Member for Broxtowe has voiced on several occasions, and those raised today by my hon. Friend the Member for Maidstone and The Weald (Mrs Grant). I can hear from the way in which the Minister has been replying that he understands that some sort of uniformity would be desirable across government and that some recognition of the problems of encapsulating a definition within the Bill will be made here or in another place.

The Opposition went into the last election saying that they would seek cuts to legal aid and that promise has been reiterated both by the Leader of the Opposition, in January, and the shadow Secretary of State, who is sitting on the Front Bench, on several occasions. However, in Committee, the shadow Minister tabled dozens of amendments, some of which were, by his own admission, contradictory and many of which were culled from the handouts given by lobbyists, which extended considerably the Committee’s deliberations when we could have been discussing the meat of the proposals as we have tried to do today. He came to the House with a new amendment having denied the Public Bill Committee the ability to consider properly many of the issues that we should have discussed.

[Mr Llwyd]

What about the fantastic announcement today of the three areas of law that are to be slid into the Bill tomorrow? We have not seen any of those proposals yet.

[Ben Gummer]

As ever, I am pleased by the right hon. Gentleman’s intervention because he highlights an inconsistency in the Opposition’s argument. They cannot say on the one hand that the Government are not listening and that the legislative process does not work—he said earlier that the pre-legislative system was not working—but on the other, when amendments are made, that the Government are either committing a U-turn or not listening. I do not understand how the Opposition and the right hon. Gentleman can reconcile those two statements.

[Mr Llwyd]

The hon. Gentleman was waxing lyrical about the absence of time to discuss Opposition amendments, but his party is equally to blame in that we have not even had sight of their amendments. At least the Opposition amendments were available to be seen before today; we have not even seen the amendments that are the subject of today’s announcement. That is the point I am making.

[Ben Gummer]

The right hon. Gentleman misses my point about the Public Bill Committee. There are many issues that needed to be raised that we could have fleshed out at greater length, but the Opposition tabled so many specious amendments, many of which were completely contradictory—largely in the name of the shadow Minister, not that of the hon. Member for Stretford and Urmston (Kate Green), who is shaking her head—that we did not get to the meat of some of the issues in the amendment we are debating. Had we been able to discuss sub-paragraph (10)(j) of amendment 74, which the shadow Minister has tabled, we might have been able to improve the Opposition’s amendment so that it could be acceptable to Members on both sides of the House. Instead, we have an amendment that was tabled a couple of days ago with aspects that clearly would not hold up to further legislative scrutiny. It is a pity that we did not have that discussion in Committee instead of discussing a series of amendments, some of which I doubt the shadow Minister had even read before he started speaking to them.

Putting all that aside, a principal issue for me is that many of the amendments tabled by the shadow Minister in Committee would have committed his party to spending increases costing £245 million, but whenever I or other members asked whether the Opposition had any alternative spending plans, they told us to look at the Law Society’s plans. Unfortunately, the Law Society has had to revise its plans, which were found wanting.

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[Mr Djanogly]

My right hon. Friend makes a good point. High levels of successful appeals perhaps show that too many cases are going before the tribunals in the first place. The other day, I saw a figure of about 80% for special educational needs tribunals, which was not very impressive either. I can also tell him that I am personally engaging with Ministers in the Home Office, the Department for Work and Pensions and the Department for Education with the specific intention of getting them to work with the Department of Justice to improve their initial decision making. I am pleased to say that they are all are working with us, and that they want to make the system better. This is a matter of significant concern to me, not least because I would like to see fewer appeals relating to my Department coming through the courts and tribunals.

The hon. Member for Brighton, Pavilion (Caroline Lucas) talked about domestic violence, immigration and legal aid. She also talked about people who fall outside the domestic violence immigration rule, such as EEA nationals. As I mentioned earlier, we are looking at cases of EEA spouses who have suffered dramatic abuse. The right hon. Member for Dwyfor Meirionnydd mentioned immigration judicial reviews. I think that he accused the Government of putting appellants into a Catch-22 situation because legal aid would not be available for immigration appeals or for some judicial reviews. I can tell him, however, that people will still be able to appeal immigration decisions themselves and, as is often the case at the moment, they will still be able to get legal aid for a subsequent judicial review, as long as it is not on exactly the same or substantially similar issues, or on a removal direction. As I said earlier, we are making various exceptions to the exclusions, which will include ensuring that, when there has been no possibility of an appeal, legal aid will remain for judicial review.

My right hon. Friend the Member for Bermondsey and Old Southwark raised various points about immigration, and I will write to him about those. He specifically mentioned children, as did other hon. Members, so I shall briefly address that point. In most immigration cases, a child’s interests are represented by their parent or guardian. Most cases in which a child is unaccompanied involve an asylum claim, and legal aid will remain for those cases as at present. 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. Legal support in such immigration cases may be found, if needed, from law centres and from pro bono legal representation. The Refugee Council provides services for separated children, which can include litigation friends.

A number of hon. Members asked how we justified plans that could disproportionately affect women. That question has also been asked in relation to disabled people, ethnic minorities and people who live in rural areas. The equalities impact assessment, published alongside the Government’s response to consultation, sets out our analysis of how the reforms will affect people with protected characteristics as set out in the Equality Act 2010. We have identified the potential for the reforms to have a greater impact on some groups, but we believe that those impacts are proportionate, and justified by the need to meet our objectives, including the pressing need to make savings from legal aid. We are also keeping discrimination claims relating to a contravention of the Equality Act 2010 within the scope of legal aid, which we consider will make a significant contribution to the fulfilment of our public sector equality duty.

The hon. Member for Stretford and Urmston asked about the removal of legal aid in many family cases, which she said would remove access to justice from many people. She asked how that could be right. Legal aid will remain available for family mediation and private family law cases, including private law children and family proceedings and ancillary relief proceedings. We want to encourage more use of such mediation. In ancillary relief cases, courts will be able to make orders for payment against a third party or a party who has the means to fund the costs of representation for the other party. Removing costly and often unnecessary legal aid does not mean removing access to justice. Litigants in person already feature in the justice system. Judges and magistrates currently assist litigants in person without compromising their impartiality, and we expect that to continue.

Finally, I was asked whether we expect all cases to be resolved through mediation. As I said earlier, the answer is categorically no. Cases involving domestic violence and child abuse, and emergency cases will still not be required to go through mediation. In addition, exceptional funding will be available when necessary for the UK to meet its international and domestic legal obligations via a proposed scheme for excluded cases. On that note, I rest my case.

Amendment 10 agreed to.

[Mr Elfyn Llwyd]

I beg to move amendment 80, page 99, line 21, leave out ‘other than’ and insert ‘including’.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

With this it will be convenient to discuss the following: Amendment 85, page 110, line 18, leave out ‘other than clinical negligence’.

Amendment 143, page 110, line 18, leave out ‘other than’ and insert ‘including’.

Amendment 86, page 110, leave out lines 28 to 30.

Amendment 142, page 110, line 32, at end insert—

19A (1) civil legal services provided in relation to Clinical Negligence.

(2) In this paragraph clinical negligence means breach of duty or care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services)’.

Amendment 88, page 111, line 4, leave out ‘other than’ and insert ‘including’.

Amendment 132, page 118, line 27, after ‘negligence’, insert

‘with the exception of clinical negligence’.

[Mr Llwyd]

I will be brief, because other hon. Members wish to speak and, crucially, we need to get to the social justice provisions. The purpose of amendment 80 is to bring clinical negligence back within scope in cases involving abuse of a child or a vulnerable adult. Amendment 88 is designed to retain specific provision for tort and damages claims engaging European convention rights, and extending provision to cases involving clinical negligence. Amendments 85 and 86 are consequential, and cover the abuse of a position of power by a public authority. They would specifically provide for cases involving a particularly serious variety of public wrongdoing and would remove the exclusion of clinical negligence cases in such a context.

Taken together, the amendments reflect my concern, which I know is shared by many hon. Members, about the huge gaps in protection of the vulnerable that will come about as result of implementation of the exceptions to funding by legal aid. What is perhaps most concerning in such instances is that individuals will come up against the state during proceedings. People involved in cases of clinical negligence by a public authority are, by definition, at their most destitute. Frequently, parents or other family members will bring cases against public authorities resulting from traumatic injuries sustained by their children and their relatives.

As the hon. Member for Makerfield (Yvonne Fovargue) said in Committee:

“the inequality of arms is never more obvious than when an individual comes up against a decision made by the state”.––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 7 September 2011; c. 327.]

That is because the state will always have access to full and expert legal advice, and will often have a team of lawyers at its ready disposal. That is even more ironic when we consider the stark fact that the state should have a responsibility to ensure that every individual has the means to hold it to account. I said that on Second Reading, and I do so again. In the reforms, the Government seem to have lost sight of that all-important state duty to support the vulnerable, as well as to protect them.

The Minister said in Committee that there is often a viable source of alternative funding for cases of clinical negligence through contingency fee arrangements. That sounds all right, but is not as simple as it sounds. What about the people who, on entering into such an arrangement with solicitors, would not be able to afford a policy to cover them for the initial necessary medical examinations? I know that some ground has been given on that, but I would be grateful to hear more. For many parents, for example, contingency fees cannot be the answer since they do not have the money up front to buy a policy to provide cover when making an arrangement with solicitors. Indeed, very few firms would take on a clinical negligence case on a no win, no fee basis because of the complexity and specialism involved in this area of civil law.

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[Stephen Phillips (Sleaford and North Hykeham) (Con)]

The hon. Gentleman is making a very serious charge against public authorities, and indeed those who represent them, by suggesting that they obfuscate and withhold evidence in circumstances where their disclosure obligations are very clear under the civil procedure rules. Can he put some flesh on the bones and substantiate his allegation?

[Mr Llwyd]

I do not have any cases with me today, but I can assure the hon. Gentleman that I would not make the allegation without some evidence.

[Karl Turner]

Does the hon. Gentleman agree that it is often the public policy of these authorities—certainly, in my experience, the national health service—to delay? I could not provide any examples either, but in my experience, they do delay.

[Mr Llwyd]

That is the point. Unless and until there is full disclosure at the very earliest point, these cases will be drawn out until the evidence is available. Everybody knows that any case against a health authority has to rely on expert evidence, and it is impossible to have that without experts’ reports from the health authority. This is the conundrum facing people who are often two, three or four years down the road and still no nearer to a conclusion. That is exactly the position that many people report, and that is why lots of these cases are, as we hear, high-value cases.

[Stephen Phillips]

The hon. Gentleman will obviously have absolutely no doubt about the bona fides of the charges that he is effectively laying at the doors of the national health service and others, but does he ascribe the position to problems with management or to seeking to protect individual medical practitioners? The two seem to me to be very different.

[Mr Llwyd]

I would speculate and say that it is probably to do with management rather than protecting individual practitioners, but I cannot give any assurances on that. What I am saying here today is common knowledge out there; it is not a new allegation that I have dreamed up just to try to grab a headline at this late stage. [Interruption.] To answer the hon. Gentleman’s question honestly, I do not know, but I would guess that it is a management issue, because whenever there is a claim, it is reported to management immediately—on the very first day, I expect.

[Stephen Barclay (North East Cambridgeshire) (Con)]

If it is a management issue, then that, as we have seen in the Public Accounts Committee, goes to the issue of accountability and governing structure. Should not the hon. Gentleman therefore be focusing his remarks on how those issues are tackled rather than trying to perpetuate an ever-increasing legal aid bill, which amounts to fixing the symptoms of the problem rather than addressing its cause?

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[Mr Llwyd]

If the hon. Gentleman will bear with me, I will go back to my script; he may be interested to hear this part because it deals with the point that he rightly makes. If there were a duty on responsible bodies such as health authorities immediately to come clean with evidence, there would probably have been no need for these amendments because we would not be in the position that we are in. Side by side, on a parallel basis, we need to ensure that all health authorities, and any public bodies, are responsible in their dealings with the public; that goes without saying.

There are about 1 million adverse occurrences or accidents in the NHS every year, and about 10,000 lead to action being taken against the NHS. It is, therefore, a big area of law. In the earlier debate, the point was made that 66% of immigration appeals succeed because the initial decision was bad. In this instance, there would be far fewer long, drawn-out cases if all health authorities and public bodies were under a duty to disclose fully and urgently, and there would not be the astronomical costs that some of these cases result in.

[Stephen Barclay]

The right hon. Gentleman’s remarks are addressing supply, not demand. He is not addressing why there are so many clinical negligence cases, nor why the insurance that is charged is going up exponentially. There are existing rules for special severance payments for whistleblowers but, as was found in the National Audit Office’s report in 2005 and the Public Accounts Committee’s recommendations in 2006, there is still a problem in the way whistleblowers are tackled in the NHS and in the way such cases are dragged out. That is a failure of the previous Government. It is to that failure that he should address his remarks; not to the fact that we continue to fix a problem that is growing exponentially year on year.

[Mr Llwyd]

The number of cases each year because of accidents or negligence has not really increased. It has been around the 10,000 mark for many years. There has not been a sudden rise in specious claims in this area. This is not a growing market. I hear what the hon. Gentleman says and I agree that we should ensure that there is far better practice.

Such cases are capable of being resolved far earlier and without recourse to litigation. Medium-sized cases are often resolved by the hospital or health authority without resorting to litigation, and that is fine. However, in large cases, such as where a child is brain-damaged at birth, there is no appetite from either side to settle it in the hospital. Such cases are often extremely expensive because the child’s life has been ruined for their entire existence. That is why I raise these matters.

I hope that the hon. Member for Kingston upon Hull East (Karl Turner) will make a contribution because I know that he, too, has been campaigning on this issue. I will confine my remarks to those few points.

[Tom Brake]

I rise to make a few brief comments, particularly in relation to amendment 132, which appears in my name.

I have been ably supported by Action against Medical Accidents, which campaigns on the issue of clinical negligence and for a statutory duty of candour in relation to accidents in the NHS. If there was a statutory duty to confirm, at the outset, that an accident had taken place, it might ensure that many cases involving the NHS, which can drag on for many years, were brought to a much earlier conclusion. If, as was suggested earlier, it is management who get in the way of resolving such cases, they would not be able interfere to the same extent to delay proceedings—if, indeed, that is what they do—if confirmation that an accident had taken place was given at the outset.

I will focus on legal aid representation in relation to medical negligence. I welcome the confirmation we have been given that £6 million or £7 million of the £16 million that is currently spent on legal aid for medical negligence will be retained under the “Exceptional Funding” heading. The sum that is being discussed is therefore in the order of £10 million. Although we have received assurances that exceptional funding will be able to deal with many of the intense cases with which Members are familiar, such as cases of babies who have been seriously injured at birth, the question remains: which cases will not be funded once that £10 million is withdrawn from legal aid for medical negligence cases?

Given that the Government have a significant budget deficit to address and that this measure is part of that programme, I do not want to come empty-handed when it comes to saying where additional funding could come from if the Government were to restore that money. Later on, we will debate amendment 144, which is in my name. It would introduce a presumption against sending people to prison for a prison sentence of six months or less. The organisation that has done the calculations suggests that that could save the Government up to £400 million a year. That might be a slight or even a gross exaggeration of how much money could be saved, but it would be not unrealistic to expect that savings of the order of £10 million would be achievable if the Government were to look kindly on that amendment.

Medical negligence is high-profile. It might affect a relatively small number of families, but when it does, it does so dramatically.

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The second way in which the problem ought to be addressed is by the judiciary being much stronger with, and more critical of, public authorities when they seek to suppress information that is relevant to cases that come before the court or that is necessary to enable claimants to prepare their case properly. It must ensure that there is equality of arms and that people can best advance their case in the courts should matters need to proceed that far.

[Mr Llwyd]

The hon. and learned Gentleman makes very good points. I tried to say that there should be a twin-track approach. In my perception, there is a problem with regard to the administration of health authorities and full early disclosure, so he is absolutely right. However, I still say that there should be more than just a basic safety net in awful cases such as when somebody is a paraplegic upon birth.

[Stephen Phillips]

I am grateful to the right hon. Gentleman for his observations, but he may be eliding two matters. The first is the unavailability of legal aid for what we might call cases in the middle—neither the severe cases that will be picked up by the exceptional funding arrangements or CFAs, nor the cases in which solicitors and counsel will be prepared to take the case on and earn their money well down the line. I agree that that middle group of cases is the difficult group, but as well as the CFA arrangements mentioned by the hon. Member for Kingston upon Hull East, one must consider whether those cases are likely to be picked up and run with by the legal profession. My judgment is that they are.

Never having done a clinical negligence case, and having no expertise in those cases at all, I base that judgment partly on my experience of the position as it prevails in many jurisdictions in the United States, where of course no state or federal funding at all is available for civil cases. A legal profession has grown up in which attorneys have had to educate themselves about which cases they should be prepared to take. They consider which cases are worth taking forward, but also those that they believe have merit from a perspective of social justice and ensuring that there is access to justice for all.

Having worked with many attorneys across many jurisdictions in the United States, I can tell the right hon. Member for Dwyfor Meirionnydd that there are attorneys who take cases that they suspect will lead either to a settlement, out of which they will get very little or nothing, or to an eventual loss if they have to take the matter to court. They consider that part of their professional obligation.

I hope that both limbs of the legal profession in this country will come to appreciate that we owe an obligation not merely to try to make money out of the practice of law, but to do what we all did when we first came to the law—have a burning sense of justice on behalf of our clients, so that they are properly represented whether or not we believe them, whether or not we think their case is meritorious and certainly whether or not we think we will make money out of it. I hope that that deals to a large extent with the right hon. Gentleman’s points. I am, of course, as concerned as he is that there may be a group of cases in the middle that will somehow fall through the net. If that is the position, we may have to revisit the issue later.

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[Mr Djanogly]

That is hard to say, because it depends on the extent to which children will come within the scope of exceptional funding, but we believe that the figure for exceptional funding will be £6 million, and that a significant proportion of that would be related to children’s claims. I will return to that.

The figure does not account for the NHS Litigation Authority paying after-the-event insurance premiums for policies covering the cost of expert reports in some cases. My hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) made that point very well. Based on figures published by the compensation recovery unit on claims settled, clinical negligence cases made up just over 1% of personal injury claims in 2010-11.

While Opposition Members were speaking, a thought came to my mind. Clinical negligence forms about 1% of the wider personal injury market. The last Government ended legal aid for personal injury claims, except in relation to clinical negligence. I am looking for help from Opposition Members because it is bizarre to hear them defend their position with such vehemence and conviction when their party scrapped 99% of this category. Let me develop the point.

Labour Members seem to be saying that if a drunk driver hit someone and caused brain damage, the injured person would not get legal aid. But if the same victim were brain-damaged to the same extent by a negligent doctor, they seem to be saying that that person should get legal aid—[Interruption.] If I have missed something, I am all ears. The hon. Member for Kingston upon Hull East (Karl Turner) may want to explain why I am wrong. The Opposition must find some consistency in their position.

[Mr Llwyd]

The difference between those two cases is that the person damaged by a drunk driver would undoubtedly claim against the Motor Insurers Bureau, and would be covered.

[Mr Djanogly]

The injured person could make a claim, but so could the person who suffered clinical negligence. The point is, as the hon. Gentleman knows, that the position is inconsistent.

We recognise that many clinical negligence cases involve serious issues, but for most a conditional fee agreement will be a suitable alternative to public funding. According to NHS figures for 2010-11, 82% of clinical negligence cases, where the funding method is known, were funded by means other than legal aid. That is the current position. We therefore consider that legal aid is not justified in such cases, and that our limited funding would be better targeted at other priority areas, such as those involving physical safety, liberty and homelessness. However, we have proposed an exceptional funding scheme to ensure that some individual clinical negligence cases will continue to receive legal aid when failure to do so would be likely to result in a breach of the individual’s right to legal aid under the Human Rights Act 1998 or European Union law.

In considering whether exceptional funding should be granted, we will take into account the client’s ability to present their own case, the complexity of the matter, the importance of the issues at stake, and all other relevant circumstances. As I said to my hon. Friend the Member for Hastings and Rye (Amber Rudd), our impact assessment estimates that we will continue to spend some £6 million of the £16 million that we currently spend on representation in clinical negligence cases.

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[Mr Speaker]

Does the right hon. Gentleman wish to press his amendment?

[Mr Llwyd]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).

Amendment made: 11, page 99, line 36, at end insert—

‘“personal representative”, in relation to an individual who has died, means—

(a) a person responsible for administering the individual’s estate under the law of England and Wales, Scotland or Northern Ireland, or

(b) a person who, under the law of another country or territory, has functions equivalent to those of administering the individual’s estate;’.—(Mr Djanogly.)

Amendment proposed: 92, page 103, line 35, leave out ‘physical or mental abuse’ and insert ‘any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)’.—(Mr Llwyd.)

Question put, That the amendment be made.