Civil Legal Aid

Lord Faulks Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Faulks]

My Lords, I should begin by declaring an interest as a practising barrister and also as chairman of research for the Society of Conservative Lawyers and editor of a pamphlet submitted to the Government and the Ministry of Justice as part of the consultation process in relation to the Government's proposals for the reform of legal aid.

The Government must cut £350 million by 2015. Although comparisons are not easy, we spend much more on legal aid than countries of an equivalent size and economic status. Legal aid, like other areas of government spending, must bear its share of pain. I agree with the Government that court proceedings should be very much the last resort and that encouragement should be given to people to seek remedies by other means.

The party opposite has accepted that had it been in power—I rely on what the shadow Minister in the other place, Sadiq Khan, said—there would have to have been significant cuts in any event. However, consistent with its approach generally, there has been a lack of specificity about where those cuts might fall, thereby leaving plenty of room for manoeuvre to criticise the proposals that the Government have put forward.

However, I welcome the debate secured by the noble Lord, Lord Beecham, and give credit to him and to the noble Baroness, Lady McDonagh, for initiating it. If one accepts that cuts have to be made, the question is where the axe should fall so as to cause the minimum of pain and to try to ensure, so far possible, that there remains meaningful access to justice. I share the concern of, I suspect, many noble Lords that the vista of unrepresented litigants will not necessarily be much of a saving in terms of the administration of justice. Cases tend to take longer and sometimes there are appeals on difficult points.

There is little time to deal with all the many issues that the Government's proposals involve. I shall refer to two. The first is clinical negligence. Some clinical negligence cases are of immense complexity—to take an example, an obstetric case which may result in a brain-damaged baby. These cases will involve myriad experts, quite rightly. They will include obstetricians, midwives, neuroradiologists, paediatric neurologists and neonatologists. A great deal of expertise is needed from them and from the lawyers to investigate what is often a very difficult matter: whether there has been a departure from the appropriate standard of care and, often even more difficult, whether such departure has or has not caused damage. An enormous amount of literature has been generated by this. It really does involve a great deal of skill. Very often the conclusion is reached by lawyers that there is no case, and the matter does not go forward. There is not to be any legal aid, even for the investigatory steps, and I suggest that is potentially going to cut off some very important cases. It means that those who really need compensation in the years to come may well be denied.

The Government’s answer is the CFA system, but because of the changes in the CFA system that they propose following the partial implementation of Jackson, it will be very unattractive for many lawyers to take these cases. I fear that the limit to the success fee—25 per cent of damages excluding really sizeable amounts—and no recovery of after-event insurance mean that many firms are going to restrict their activities to very straightforward cases of egregious errors, the sort of cases, in fact, that would attract claims managers rather than responsible and experienced lawyers. I suggest to the Minister that if he does nothing else as a result of my observations he goes back to Sir Rupert Jackson and asks him whether he would approve of this effective pincer movement on those very worthwhile cases that are going to be prevented as a result of the Government’s changes.

I will have to deal with my second point very briefly. The tone of the Government’s response seems to suggest that there is some possibility of additional funding in cases where they may feel that they would be in breach of treaty obligations if they did not do so. Reading the subtext, I take this to be a suggestion that anything to do with Human Rights Act cases may still require legal aid. There are some very important Human Rights Act cases, but let me tell the House that there is an enormous number of very trivial Human Rights Act cases. The Government should not be frightened to say that if cases are not serious, do not involve large amounts of money and are not truly human rights issues, there should be no legal aid for them. There would be savings that could be better spent elsewhere.