Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Faulks Excerpts

Monday 23rd April 2012 Lords Chamber

[Lord Faulks]

My Lords, I will be very brief. I supported the predecessor of this amendment as it went through the various stages in your Lordships’ House. I did so because, for the reasons that have already been given, I thought it was an important statement of principle that ought to govern the way in which we considered the Bill and ought to be part of the Bill. I remain of that view.

It seems that the real reason for the objection to this amendment is the fear of judicial review, or the rather vaguely described “satellite litigation”. I understand why government lawyers, who are not always right about everything, may consider that there is a risk of judicial review in all sorts of situations: because of the ingenuity of lawyers and perhaps the flexibility of the Human Rights Act. However, given the way in which it is currently framed, it seems absolutely hopeless to think that there could be judicial review in these circumstances. The amendment as formulated makes it entirely clear. We are all familiar with provisions with no such discretion or reference to the Lord Chancellor or the Secretary of State, in which case courts have sometimes said that it is an absolute duty. However, with this proviso it is almost as though the Government have had the benefit of the noble Lord, Lord Pannick, advising them on how to make the matter proof from judicial review.

[Lord Phillips of Sudbury]

My Lords, I went to the other place to hear our amendments debated. As I am not a former Member of the other place, perhaps my noble friend will take it from me that its consideration of some of our amendments was cursory—and that is putting it quite generously. I admit to being very disappointed that, on such an important Bill as this, the other place allowed so little time for consideration of these amendments that one cannot say that they scrutinised the amendments with the seriousness with which we try to scrutinise.

Having said all that, I am still mystified by this amendment. I agree with my noble friend Lord Faulks, and consequently with my noble friend—well, he is a friend but he is not a friend—Lord Pannick. It seems clear—indeed it was part of the case made by the noble Lord, Lord Pannick—that there is no prospect of judicial review, and he has designed this amendment to cut out that prospect. However, to the extent to which he has been successful—and I think he has been—it makes the clause ineffectual. It has absolutely no practical effect. I am afraid that it is admirable in sentiment but ineffectual in purpose and therefore should not be in the Bill.

--- Later in debate ---

[Lord Howarth of Newport]

My Lords, I have no doubt at all about the sincerity of the noble Lord, Lord McNally, and the compassion for victims of mesothelioma that he expressed at the outset of his speech. None the less, he felt that he must advise the House to reject the amendment so powerfully moved by the noble Lord, Lord Alton of Liverpool.

I say to the Minister that there is no virtue for the Government in dogmatic consistency. I believe that they would do themselves good and, much more importantly, they would do a great deal of good for those diagnosed with mesothelioma, as well as their families and dependents, if they would agree to make an exception in this instance. If they were to do so, it would not create a permanent anomaly, and in the short term I do not believe that it would undermine the central principles of the Government’s reforms because they are absolutely secured in the legislation that Parliament will pass. In any case, the Minister need not fear because this is a category of cases that is going to reduce in number over time. Mesothelioma is, I understand, exclusively associated with exposure to asbestos. All too belatedly the terrible damage that asbestos can do to human health was recognised, and for some time due to regulations and industrial practice there has been no further exposure of people to this hazard. We can foretell with confidence that this category of cases will dwindle and, I think, disappear. Therefore, the Minister need not worry that there will be a permanent anomaly. I say to him that he does not need to persist in a doctrinaire position which runs counter to his own very real human sympathies.

[Lord Faulks]

My Lords, what was said in the other place about there being some advantage, as the noble Lord, Lord Alton, said, in any case of mesothelioma was most unfortunate and was, I hope, a simple slip of the tongue. Using this appalling disease to give an example of the compensation culture was equally ill advised. It plainly is not.

There is no dispute about the diagnosis of mesothelioma on any occasion. However, this is part of Part 2 of the Bill, and Amendments 31 and 32 have the effect of undermining the structure of the Bill. Part 2 was the result of Lord Justice Jackson’s report and represents an attempt to remove some of the more unattractive and, frankly, almost iniquitous aspects of the system that had grown up as a result of the changes unleashed by the previous Government’s legislation. The fact that this amendment would create an exception to this new, much fairer and proportionate system is not of course itself a reason for objecting to the amendment if it would be a denial of justice to these very deserving cases. There is no doubt that they are highly deserving cases and that they need compensation quickly. The Government have announced that there will be an increase in general damages by 10 per cent. I have to admit that I remain somewhat queasy, in common with other noble Lords, about the 25 per cent success fee that will be paid to successful lawyers in these cases, but the Government have said—and I think they are right—that the competition for these cases is such that they cannot imagine that those lawyers will insist on their success fee. A number of experienced lawyers are well geared up to taking these cases, as they have done over the years, and I very much doubt that they will want a success fee. They are, after all, as the noble Lord, Lord Thomas, said, lawyers who will recover the costs to which they are entitled. If those costs are not agreed, they will be entitled to have them assessed by a costs judge, and in due course qualified one-way costs shifting should assist.

--- Later in debate ---

[Lord Bach]

I am grateful to the noble Lord again for calling me the Minister—it is a couple of years, I think, since that was the case. I take his point though; it is a serious point. I am not convinced that lawyers who take up these cases, if this Bill in its present form becomes law, will not take success fees. In fact, I am pretty certain that they will. I cannot see why they would not. It may be a shame, but in the reality of the legal world, if they are entitled to take success fees, they will do so.

[Lord Faulks]

Does the noble Lord have any basis for saying that other than simply speculating?

[Lord Bach]

I certainly do not have the experience of the noble Lord in this area of the law, but with the greatest respect I ask whether his view is not as speculative as mine. We just do not know, but I would have thought that the history of legal proceedings of this kind is that where success fees are available they will be sought. Maybe not always up to 25 per cent, but they will be sought.

--- Later in debate ---

[Lord McNally]

My Lords, the noble Lord, Lord Higgins, quoted the Reason, which states that the amendment,

“would alter the financial arrangements made by the Commons”,

and goes on to state that,

“the Commons do not offer any further Reason”.

As an old parliamentarian, he knows that if an amendment infringes privilege, that is the only reason that will be given. Obviously, when taken against the national economic crisis that we are dealing with, these various precise sums will always be able to be argued away as almost too trivial to worry about.

Perhaps I may relate to the House some other thoughts that have also motivated our approach in trying to reform legal aid in this area. Clinical negligence claimant lawyers’ bills, which the National Health Service Litigation Authority has to pay, have more than doubled from £83 million in 2006-07 to £195 million in 2010-11. As part of this, CFA success fees to claimant lawyers have more than doubled in the past four years from £28 million to £66 million, and the NHSLA pays out an estimated £33 million in claimant insurance premiums. However, damages paid to claimants have risen more slowly—from £579.4 million to £863.4 million over the same period—and the NHSLA has controlled its own defence legal costs much more carefully, rising only 26 per cent during the same period.

One motivation behind our approach in this whole area has been the impact that the system brought in by the previous Government in 2000 has had on the National Health Service, with an extraordinary rise in payments to lawyers. We are trying to address that. In doing so, early on we listened carefully to concerns about the specific issues faced by the most vulnerable children at the most vulnerable point in their lives, and we brought forward amendments to deal with that. Of course, in these areas there will always be disputes about where you draw the line and what happens to those on the other side of that line. However, in bringing forward our amendments our intention was to meet that initial lobbying, and we responded to it most positively. However, that was immediately followed by further lobbying that this should cover all children, but we do not believe that that is necessary.

The amendment purposely captures clinical negligence before, during and shortly after birth. We believe that that is a proportionate means of meeting the policy objective of targeting legal aid on the most serious and complex cases that would otherwise struggle to obtain a CFA. The eight-week period is an appropriate period of time at which to draw the line, because most of the serious and complex clinical negligence cases involving neurological injuries to infants are likely to arise from treatment or care administered during this period, when the infant can be considered to be most vulnerable. We have drawn the post-birth line at this point because of that. We also recognise that some children will be born prematurely and will need fairly intensive medical supervision in the first weeks of life. Any cases in which negligence occurs beyond this point will need to be considered under exceptional funding on a case-by-case basis. It is difficult—

[Lord Faulks]

I am very grateful to my noble friend for giving way. I wonder whether he can help the House on one point. Originally, before the welcome concession by the Government concerning babies damaged at or about the time of birth, the response was that exceptional funding might be available to meet those claims. Now that those claims are to be within the scope of legal aid, does it follow that more exceptional funding might be available to deal with the hard cases that may arise with children who are outside the scope of the eight-week period?

[Lord McNally]

I do not think that exceptional funding has ever been a specific amount of money and that therefore the amendment releases more of the exceptional funding pot to others. The exceptional funding is there to meet cases that fulfil the requirements for exceptional funding. I will not follow my noble friend because he leads me down a dangerous road. The exceptional funding is and will be there on the merits of the case. That is why we have confidence that the combination of the amendments that we have made, the CFAs, which, as was pointed out, some 82 per cent are already using, and a robust exceptional funding scheme will meet the needs in the cases that are covered by the amendment that we are opposing. Again, I ask the noble Lord to withdraw his amendment and to support the Commons.