Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Goodhart Excerpts

Monday 16th January 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I have put my name to Amendments 23 and 27, which are very much on the same lines as the amendment by the noble Lord, Lord Faulks. I find it absolutely astonishing that the Government should, in Clause 8, have an arrangement whereby they can delete legal aid but they cannot bring it back. It is particularly astonishing because a number of judges who know what they are talking about—two Supreme Court judges who have been judges in the Family Division and the present president of the Family Division—all say that this is a false economy. I very well understand that it is absolutely necessary to cut the legal aid bill. However, if the Government cut it in the wrong way, as I suggest they are doing and as I shall say in the debate on later amendments, they cannot put it back if it requires primary legislation.

As the noble Lord, Lord Faulks, has already said, the whole purpose of these amendments is not to destroy the Bill but to allow the Government, or indeed a subsequent Government, a degree of flexibility so that they do not have to use primary legislation to achieve their purpose. Therefore, I very much support all the amendments in this group.

[Lord Goodhart]

My Lords, I entirely agree with what has been said by the noble Lord, Lord Faulks, and the noble and learned Baroness, Lady Butler-Sloss. At present, as has already been pointed out, the Bill authorises the Lord Chancellor to omit the services under Schedule 1 but it does not permit him to extend his powers by adding to the services in Schedule 1. Any extension of the power would therefore require primary legislation. By contrast, the deletion of existing services would, under Clause 132(5), require only the affirmative procedure, which is quicker, simpler and cheaper than primary legislation.

From long service on the Delegated Powers Committee, I am satisfied that it would be acceptable to use the affirmative procedure to use Clause 8(2) to delete services that now exist under Schedule 1. We should recognise that as desirable. From that, it follows that we should make it as easy as possible to reconstruct the provisions that have been cut and that ought to be restored when the financial situation permits. That would be done most swiftly by including in the Bill the ability to introduce powers to add new services by the affirmative procedure, as well as a power to remove existing services. That will cost nothing today but it will help to satisfy those of us who accept that some reduction is needed now but who do not want it to continue when the reduction is needed no longer. In some years to come, that will be the case.

Therefore, if we are to go ahead with the Government’s proposal, it is essential to add to it the requirement that the Government accept that in the future, when it is possible on economic grounds to do so, existing provisions can be added and not just deleted by the affirmative procedure in both Houses.

--- Later in debate ---

[Baroness Turner of Camden]

My Lords, I support Amendment 28. I have received a number of briefing letters from all sorts of organisations in connection with this Bill. One of the most frequent issues is clinical negligence, which the Government propose to remove from the scope of legal aid entirely. A few cases may fall within the exceptional funding test, but that could have massive impacts on some of the most serious cases of clinical negligence, particularly those involving very badly injured children. I understand that significant numbers of parents already receive support from legal aid around clinical negligence on behalf of their children.

The Government’s stated intention, however, is that those cases should be brought on a conditional fee—the no-win no-fee basis. That is not the right way in which to handle such cases, as they often need extensive medical reports, running into thousands of pounds, just to establish whether there is a case. They often have to be held in abeyance to try to assess the long-term consequences for a child. In those circumstances, I am advised that it is not commercially practical to run such cases on a no-win no-fee basis. That is the view of organisations that have made representations, such as the Bar Council and the Law Society.

The Government’s proposed solution of allowing the recovery of insurance premiums related to the costs of disbursements has been widely criticised as not being terribly workable. I also understand that the Government claim that up to 100 per cent of some types of legal aid proceedings will be brought back into legal aid by means of the exceptional funding test. However, the test is deliberately narrowly drawn and its legal and practical implications remain completely unknown.

I support Amendment 28 because it spells out in detail exactly what is meant by clinical negligence proceedings. It seems to me that the Government should take this issue very seriously, particularly in view of the representations that have been made right across the board from all kinds of organisations that really know what they are talking about because they are involved in the day-to-day application of the law in this area. Will the Government please consider what they are proposing with regard to clinical negligence? In my view, it is highly unpopular with organisations that know what they are talking about and with the many people who have had experience of trying to raise issues on behalf of injured children, particularly those injured as a result of clinical negligence.

[Lord Goodhart]

My Lords, the speech of the noble and learned Lord, Lord Lloyd, at the beginning of the debate was both thorough and persuasive. There is nothing that I wish—or would be able—to add to the basis of his arguments. It is widely believed, and I am one of the believers, that post-accident insurance premiums have been an unsatisfactory element of legal aid in the past. It is therefore very undesirable that that should be continued specifically through Clause 45. The noble and learned Lord, Lord Lloyd, made it clear that Amendment 25 is highly preferable to the Government’s Clause 45. I hope, therefore, that the Government will see fit to accept that conclusion.

[Baroness Eaton]

My Lords, I shall speak to my Amendment 36A, which deals with the position of children in medical negligence cases. I am not a lawyer and so I speak with some trepidation, having heard so many noble Lords who are experts in the field of legal matters.

The proposals to remove clinical negligence entirely from the scope of legal aid will have an enormous impact on the most serious cases of clinical negligence, especially where catastrophic injuries to children have occurred. A freedom of information request to the Ministry of Justice revealed that in 2009-10, 870 medical negligence cases in the name of children were supported by legal aid. Under the proposals in this Bill, 640 of those cases would no longer be supported by legal aid. Whenever I have raised this as an issue, I have been told—as have many Members—that the Government’s view is that these matters can be dealt with through conditional fee arrangements. We have heard from my noble friends Lord Faulks and Lord Carlile, the noble Lord, Lord Wigley, and the noble and learned Lord, Lord Lloyd of Berwick, about the complications and why this is likely not to provide a satisfactory response.

Cases that are brought for children are often very long—sometimes complicated matters can last six or seven years—and cases that are not quite so complicated can still last for 34 months and longer. This is a terrible situation for families and parents to consider and contend with. Of the £17 million medical negligence cases funded by legal aid, less than a quarter are children’s cases. I understand that the majority of these involve perinatal injuries. These are particularly difficult cases and success is very uncertain.

When we are talking about the technicalities of legal aid and all that is involved in it, we should remember that clinical negligence cases affect not only the child in question but the parents and the whole family. Having a child myself who was wrongly diagnosed with a psychosomatic illness, which was in fact a very virulent form of bone and tissue cancer, I understand something of the trauma felt by such families. We did not proceed to litigation as the stress of doing so was, we felt, too great for us to cope with. We were an emotionally strong family in the fortunate position of being both strong for each other and able to afford the additional costs that occur to families in such situations. Others are not always so lucky. For families with a number of other children needing parental attention, the difficulty for parents to retain their employment can be a problem. I have seen many situations where the stress on families of looking after such children is so high that it has brought about a breakdown between parents.

The process of litigation with the support of legal aid is traumatic enough, but for a child to be denied that right must add hugely to the burden on the child and the family. I do not believe generally that the state should do things for people that they can do for themselves. I do believe, however, that a civilised society should provide a safety net for the most vulnerable.

I also do not believe in wasting public money or spending it unwisely. As we have heard today, independent research on behalf of the Law Society has found that the knock-on effect of the proposals in this Bill for legal aid in clinical negligence cases will cost almost three times the Ministry of Justice-predicted savings. I hope the Minister will be able to reassure your Lordships that this issue will be reconsidered and that the Ministry of Justice will produce a financial impact assessment so that decisions will be based on sound information.