Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Wednesday 7th March 2012 Lords Chamber

[Baroness Hamwee]

My Lords, perhaps I may ask a short supplementary question following the queries made by my noble friend Lord Carlile about Clause 9. I was intending to raise it on a later amendment but will do so now if my noble friend is going to deal with it.

The natural meaning of “exceptional cases” suggests to me something very unusual about either the claim or the claimant. I am troubled that claimants might fall foul by virtue of being part of a cohort. Can the Minister help me with what is meant by “enforceable EU rights”, which, along with convention rights, bring one within the exceptional determination provision?

[Lord Beecham]

My Lords, before I address the amendments, I must correct something that I said in Committee. I unfortunately misrepresented the noble Lord, Lord Wigley, as saying that 10 per cent of National Health Service patients suffered clinical negligence. I rather conflated different figures. He referred to the fact that a million of what are described in somewhat Orwellian language as “adverse incidents” take place in the health service, of which only 10,000 give rise to claims, which represents only 1 per cent of those adverse incidents.

The noble Lord, Lord McNally, has in the previous debate, and indeed in virtually every debate, prayed in aid as a rationale for government policy the question of costs. It is not unreasonable that costs and public expenditure should form part of these discussions, but, as we have heard today from the noble and learned Lord, Lord Lloyd, the noble Baroness, Lady Grey-Thompson, and the noble Lord, Lord Wigley, and others, the argument in this case runs the other way. What the Government are proposing would cost the Exchequer, rather than the converse. In any case, we are speaking only of some £10 million, which would have been the saving under the Government’s original policy. I welcome so far as it goes the amendment that the Government are proposing. As they are now going some way—though not far enough—towards meeting the case for extending legal aid, that amount of saving would be reduced in any event.

However, it is not just those of us who support the amendments of the noble and learned Lord and of the noble Baronesses, Lady Grey-Thompson and Lady Eaton, who take the point about the cost and the way in which the system would work. No less an authority than the National Health Service Litigation Authority has expressed its considerable reservations about the Government’s approach, saying:

“We have serious concerns over the proposal to withdraw legal aid from clinical negligence claims. Whilst we have seen an upsurge of claims brought under Conditional Fee Agreements (CFAs) in recent years, we question whether CFAs are likely to be readily available to fund many of the more serious claims currently brought via legal aid”.

That view is at odds with that of the noble Lord, Lord Thomas. Given that the litigation authority is at the receiving end of these claims, I am inclined to give rather more weight to its views.

[Lord Thomas of Gresford]

Although the organisation questions, it is hardly saying something that is contrary to what I have said. I have said that if everything went wrong and worst-case scenarios arose, the amendment accepted by the Government, which would permit bringing these matters back into scope, would be extremely important.

[Lord Beecham]

It would be extremely important if the Government acted on it. We do not know that they will. While the noble Lord claims credit for the amendment, he was not quite so enthusiastic when it was being debated in Committee at the instigation of this side, but that is a little beside the point. The litigation authority states clearly:

“Overall, we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria”.

In that phraseology, it echoes the words of Lord Justice Jackson.

Welcome as the government amendment is, they anticipated some discussion about it because they also questioned whether the scheme would cover only cases of the most severe brain damage or whether it would extend also to claims for moderate brain damage and shoulder dystocia, or to children whose mental faculties are spared but who have serious physical disabilities. We know that we are dealing only with a limited number of perinatal cases, as movingly explained by the noble Baroness, Lady Eaton. Again, it would seem that, on balance, the litigation authority, although it welcomes no doubt the progress made so far, would not be content with leaving the situation as it stands.

Of course, the case of Sophie Tyler was very moving. It is interesting that her solicitor said:

“This is an important case which has allowed our client to access justice and secure the lifetime of future care she needs but it would not have been possible without the support of legal aid”.

That is a very important observation. However, there are many other kinds of claim which arise out of different types of clinical negligence and with different effects. While the number of adverse incidents has now risen to 1.15 million, there are some 2,500 clinical negligence claims in what is a called a “serious category”. Of those, 12.5 per cent result in death; 17 per cent lead to unnecessary operations or amputations; 8 per cent lead to damages to nerves or senses; and 2.9 per cent lead to cancer. So 50 per cent of six major categories overall are not of the kind that would be covered by the government amendment.

In these circumstances, it is quite clear that a substantial number of people will not be able to access legal aid. Despite the assertions of the noble Lord, Lord Thomas, it must be questioned whether the conditional fee system would be an answer to that and, in particular, whether that would not in itself increase the costs to the National Health Service.

[Lord Thomas of Gresford]

Perhaps I may point out to the noble Lord, and my noble friend the Minister will confirm this, that I raised the issue of increasing the powers of the Lord Chancellor before Second Reading. If he would like to consult the record, he will see that my amendment, to bring areas back into scope, was tabled on the very first day that amendments could be put down. The amendments put down by the Labour Party were many days after that.

[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.