Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Phillips of Sudbury Excerpts

Tuesday 24th January 2012 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I have my name to this amendment. I confess that I have been impressed by the points made by the noble Baroness, Lady Mallalieu, and the noble and learned Lord, Lord Goldsmith.

It surely is beyond argument that with the cuts in scope to legal aid this Bill will bring about, the need for the citizens advice bureaux and the law centres will be infinitely greater than it already is. If we were to have this discussion in the other place, there would scarcely be an MP who would not automatically come to the aid of the citizens advice bureaux in particular, because they rely on them: they send people from their surgeries to their local citizens advice bureau to get the advice that the MP cannot give.

The numbers of cases dealt with by the CABs in a year are measured not in tens of thousands or hundreds of thousands but in millions. I urge my noble friend to have regard to this simple reality. To put it in scale, I think there are 500 full-time CABs, with something like a further 3,000 CABs sharing premises in libraries and council offices and so on; so 3,500 of them, and probably 60 or 70 law centres now, a declining number; but they are on the front line of citizen advice. They are indispensable in the truest sense of the word.

The fact that so much of what they do is done by voluntary assistance—and very many local solicitors are volunteer CAB workers—only multiplies the value of what they do financially. The £20 million that the Government gave a couple of months ago to tide over the CABs in a funding crunch must be the best value £20 million the Government have spent on anything in the last year. I repeat, the multiplier effect of the voluntary effort put in to CABs makes every pound of support given of much greater value.

I do not think it needs labouring, it is just that I feel so passionately about this. I declare an interest that I was for 20 years legal adviser to the National Association of Citizens Advice Bureaux, and my firm still does work for them. I have seen for myself from the inside and as an occasional volunteer the absolutely essential front-line work that they do. Frankly, to think of this country without the CABs is to contemplate a nightmare. My noble friend the Minister may say, “That is an exaggeration; there is no chance of that”. Well, put us at ease by allowing this amendment. Indeed, take it away and contemplate putting some obligation alongside the discretion.

I also know that Citizens Advice has to plan its finances on a solid future framework. It cannot hope each year that somehow the money will tip up. It needs certainty of supply, as do the independent law centres. We all understand the financial rigours under which the coalition Government are having to work but I cannot urge more strongly the fact that the task of the CABs and the law centres, in the straitened circumstances which will prevail after the cuts in legal aid brought in by this Bill, will be ever more urgent in an ever complicating society.

[Lord Bach]

My Lords, until now, I have been happy to support every amendment moved by the noble Lord, Lord Thomas of Gresford, but I have to say that on this one I find that I cannot give my support. I agree with the noble Lord, Lord Phillips of Sudbury, that we are incredibly lucky in this jurisdiction to have a not-for-profit sector, as well as those solicitors who still do this work, which provides at very little cost a terrific service for people who otherwise would not get access to justice. They do so largely due to the good works of a lot of Lord Chancellors in the past but not least the noble and learned Lord, Lord Mackay of Clashfern, who is not in his place now but was here earlier, who, in 1995 I believe, made it possible for law centres and CABs to receive legal aid and thus give the kind of advice that changes lives. I agree absolutely with what the noble Lord, Lord Phillips, has said. If that should disappear, it would be one of the scandals of the first few years of this century.

If this amendment is intended somehow as an acceptable substitute for taking whole areas of legal aid, particularly social welfare law, out of scope, it has the potential be dangerous and short-sighted. I do not doubt for one second the good intentions and good faith of those who have put forward this amendment. But why do I say that? It seems to me to play entirely into the hands of a Government. It could be this Government or a future Government. I agree absolutely with my noble and learned friend Lord Goldsmith on this. Most likely the Lord Chancellor would be at liberty to pay whatever grant he wanted or no grant at all because the power is entirely discretionary as the amendment is drafted.

We know that there are a multitude of not-for-profit advice centres. Well over 500 CABs, 60 law centres, and hundreds of small, sometimes specialist, centres deal with the type of issues with which Part 1 is concerned. Some receive legal aid and some do not. I agree with the noble Lord, Lord Shipley, that it is not a perfect system by a long way. Given his background, what he has to say about localism is of huge interest, which I know from being the Minister some time ago. But at least under the present system, the Legal Services Commission grants contracts for legal aid for a length of time and it is not the Lord Chancellor’s job to grant those contracts. It is not perfect by a very long way but the contracts are intended to cover the country. At present, those contracts are one step removed from a politician’s stroke of the pen. In my view, that is an important consideration.

Who will the Lord Chancellor fund? Of course, I am talking about a Lord Chancellor in the future. I am not talking about now. Will it be those he likes? Will it be those that are in his part of the country? The Lord Chancellor may be a Member of Parliament, as he is now. Will it be those who do not often sue the state or do not offend him or the Government? He could turn the tap off at any moment and the organisations would have no way of planning their present and their future. There would be no certainty.

One of the criticisms made by the not-for-profit organisations I certainly remember hearing as a Minister was, “Look, there is not enough continuity. We do not know about the future. How can we plan and become efficient organisations without knowing how long we will get contracts for?”. There may be not be enough continuity in the present system, but necessarily there would be no continuity under the system being mooted in this amendment. Frankly, it is an open invitation to a new Lord Chancellor, under pressure from the Chancellor of the Exchequer—and every Lord Chancellor I have ever heard of or spoken to has been under that pressure from the day he gets into office—just not to make the grants, and that will be it. The not-for-profit sector will collapse. I ask this question: if grants are the solution, where is the money coming from? If the money is there, why take social welfare law out of scope in the first place? Why not provide the rather limited, perhaps too limited, resources for social welfare law that are available at present?

Of course we are open to discussion and further debate about this, but what we want to happen is that those areas of the law—in particular, social welfare law, which it is suggested should be taken out of scope by the Bill—should not be taken out of scope; they should remain in scope. The system does not work badly; in fact, I would go so far as to say that it is working well. There is no need for this. If I was the Minister tonight, I would bite off the arm of the noble Lord, Lord Thomas, and accept this amendment saying, “Yes, I agree”. That is because, as it is presently drafted, I am afraid that it plays much too much into the Government’s hands.

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[Lord McNally]

Of course they are going to lose work in the areas that are being taken out of scope. That is self-evident. I make no complaint about it, but we continually have brandished at us reports from organisations with, to put it bluntly, an interest in the issue. It can at least be examined thoroughly. Organisations which have been involved mainly in areas which are being taken out of scope will find that that work is no longer there, which will have an impact on some of them. However, they will still be free to bid for work which is within scope. We can go round that time and again.

[Lord Phillips of Sudbury]

I know that my noble friend is trying to get into his speech but, en route, important issues come up, and one has a duty to the Committee to continue with them. Does he not appreciate—I do not think that he can—first, that local authorities, because of their financial stringencies, have withdrawn grants to law centres and CABs all around the country and, secondly, that, if the centres can no longer do the work that is taken out of scope, many if not most of them will simply shut their doors and go away? The consequence of that, my noble friend will, I am sure, recognise.

[Lord McNally]

Throughout the passage of this Bill, assertions are made about what is going to disappear and the nightmare of a country without CABs—to quote my noble friend. Unlike the noble and learned Lord, Lord Goldsmith, I cannot airily, as he did in his intervention, say, “£20 million? That is not enough. Perhaps we should put another nought on the end”.

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Moved by

[Lord Phillips of Sudbury]

99A: After Clause 11, insert the following new Clause—
“Report reviewing claims for clinical negligence
(1) In discharging his functions under section 1(4) above, the Lord Chancellor shall have regard to the report of a review under this section.
(2) The Lord Chancellor must, before the end of the period of one year beginning with the day on which this Act is passed, appoint an independent person to review generally claims for clinical negligence and means of improving the modes, procedures and outcomes relating to the same.
(3) The review must address, in particular,
(a) the accessibility, cost, effectiveness, openness, fairness, proportionality and speediness of such claims, and(b) any other matters the Lord Chancellor considers appropriate.(4) After the person appointed under subsection (2) has completed the review, he or she must compile a report of conclusions.
(5) As part of their conclusions the reviewer may propose such voluntary scheme or schemes as he or she shall see fit.
(6) In this section “claims” shall mean claims and complaints made by patients receiving services provided in the United Kingdom and commissioned in England in respect of a liability in tort or contract owed in respect of personal injury or loss arising in connection with breach of a duty of care owed to any person in connection with the diagnosis of illness, or in the care or treatment of any patient of an NHS body, a primary care or independent provider.
(7) The Lord Chancellor must lay before Parliament a copy of the report compiled under subsection (4).”

[Lord Phillips of Sudbury]

My Lords, this amendment is in my name and those of the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Faulks. Both much regret that they cannot be here to join the debate. The noble Lord, Lord Faulks, is a practising Queen’s Counsel who concentrates on work in the field of clinical negligence. The renown of the noble and learned Lord, Lord Woolf, needs no repetition.

Clinical negligence cases are perhaps as—or more—difficult and complex than any in the field of litigation. They tend to be extremely slow, expensive and to some extent unfair in the way that they unwind. The position under the Bill is that clinical negligence claims are taken out of scope, although the House will know that there is an amendment yet to be resolved which would keep the independent specialist or expert medical reports within scope. The importance of medical reports in clinical negligence claims cannot be exaggerated. Medical evidence is the vital linchpin around which such claims revolve. They establish whether there has been medical negligence and whether there is causation between the condition suffered by the would-be claimant and the event purportedly giving rise to it. Upon the expert medical report depends: first, whether a solicitor will take the case on a conditional fee agreement; secondly, the terms of the conditional fee agreement, because obviously if the solicitor does not like the sniff of the case he or she will maximise their benefit under the agreement; and, thirdly, the cost of insurance which is now almost an essential part of any clinical negligence claims because they are uniquely expensive. That, too, will depend of the expert report. Even with insurance, the cost implications of these claims are fearsome. Some may remember that in debates last week I referred to a case from south Wales referred to me by the NHS legal team there. A case taken under a CFA resulted in the claimant getting damages of £4,500 but the costs and expenses were over £98,000.

The point of this amendment is really to have a long, cool look at the whole of the clinical negligence scene to establish whether—and, if so, how—we might better conduct this vexatious class of claim. I will refer briefly to a 2003 report by the chief medical officer for England, the consultation document Making Amends, which drew particular attention to the slowness, complexity and cost of these claims. Sadly, I do not think that much has come of the Making Amends consultation.

In this field, the Welsh are streets are ahead of us. In 2002, the Welsh NHS report on alternative dispute resolution was produced. It led in 2005 to the setting up of a pilot project called the Speedy Resolution Scheme—again confined to clinical negligence claims. In 2006, the NHS Redress Act was past, which empowered the Welsh Assembly to set up its own redress regime. This was referred to—and still is—as “putting things right”, and was a root and branch review that led last year to the NHS Concerns, Complaints and Redress Arrangements Wales Regulations 2011, which is still in the process of unwinding. Another aspect of the regulations comes into effect in April. In between that, there were additional measures.

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[Lord McNally]

My Lords, I would hope to persuade the Opposition not even to support the principle of this amendment, which says:

“The Lord Chancellor must, before the end of the period of one year beginning with the day on which this Act is passed, appoint an independent person to review generally claims for clinical negligence and means of improving the modes, procedures and outcomes relating to the same”.

We would prefer to stick to the process established by the previous Government, which put in place post-legislative scrutiny of Acts of Parliament. The aim is to complement the Government’s internal departmental scrutiny with parliamentary scrutiny, principally by committees of the House of Commons, to provide a reality check on new laws after three to five years.

As set out in the Cabinet Office guidance, these reviews normally take place within three to five years of Royal Assent. The responsible department must submit a memorandum to its departmental Select Committee, which will then decide whether it wishes to conduct a fuller post-legislative inquiry into the Act. Of course, the House will be free to debate the committee’s findings should it choose to conduct a review into the Act. In addition to this post-legislative scrutiny, the impact assessment for the specific policies in the Bill is accompanied by a post-implementation review plan. It is intended to review each policy between three and five years after the implementation date.

Noble Lords may also be aware that the Government have conducted a public consultation this year on how lower value cases should be dealt with more efficiently in the county courts. We are working closely with the National Health Service Litigation Authority to consider whether a lower value scheme similar to that which is currently operating for low-value road traffic accident cases would work for lower value clinical negligence cases. At the same time, we are actively considering the Government’s response to the consultation and will publish the response in the near future. In the light of these remarks, I hope that my noble friend will withdraw his amendment.

[Lord Phillips of Sudbury]

Before my noble friend sits down, could I be perfectly clear about what he said at the start of his response? Is he saying that there will be a formal review of clinical negligence in the course of reviewing the whole of this Act, as it will become?

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[Lord McNally]

Yes. If it did not, presumably we would bring forward primary legislation to correct it, but that is the parliamentary process.

[Lord Phillips of Sudbury]

My Lords, I thank the Minister for his reply. I was going to say that I thanked the noble Lord, Lord Beecham, for what he said—I sort of do. I will not play legal games with him at this time of night, but if this is brought back I will certainly read carefully the points that he made.

As for the Minister’s reply, my sense is that the review that I am calling for in Amendment 99A is far more particular and focused than any review that would come forth under the general review of this legislation, not least because clinical negligence has only a very limited part to play in it. Further, the Bill deals with the scope of clinical negligence in terms of legal aid, not with the detailed functioning of clinical negligence litigation. I would like to read what the Minister has said and perhaps have a conversation with him before Report in order to see whether there is any point in persisting with the nub of this amendment. I beg leave to withdraw the amendment.

Amendment 99A withdrawn.