Civil Legal Aid

Lord Thomas of Gresford Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, there is no point in cutting legal aid if the effect is to increase government expenditure in other areas and at the same time deny access to justice. The Green Paper proposes a radical reduction in the scope of private family law issues for which legal aid will be available. That policy is based on a false premise; namely, that spending on legal aid fuels litigation and that the only alternative is mediation.

Family lawyers, as a group, are committed to settling cases out of court as expeditiously as possible, often by referring clients to mediation, but, more frequently, negotiating settlements themselves. In my early days as a solicitor, I was much involved in that sort of work. The Green Paper entirely neglects the current important role of lawyers in non-court-based resolution of legal disputes, particularly financial and custody disputes. It is very probably because clients were able to see a solicitor that litigation was avoided in many cases. Without professional guidance, ill founded and certainly ill prepared litigation conducted by the client in person will inevitably follow. That will mean a very substantial rise in the number of litigants in person in the family courts. Sir David Norgrove, chair of the Family Justice Review panel, in his interim report, which was published recently, has emphasised this point.

Those who lack the personal energy and other resources to take on litigation by themselves would not get access to justice at all. Those who have not been able to enforce the other party’s private law responsibilities for support and so on inevitably fall back on the state for housing and support, so that is where more state expenditure is incurred. One reason why mediation is currently successful is that the threat of litigation encourages people to adopt sensible positions in mediation or in settlement discussions. With that threat effectively removed in many cases by the removal of public funding for legal representation, successful mediation will be severely hampered.

Legal aid is to be granted where there is physical violence. There is an obvious perverse incentive for people to allege domestic violence just to get access to funding for their other issues. The other side to the argument could say, “Well, I never did that”, which will increase more contested court proceedings. Many women who do not disclose domestic violence that they have suffered, or refuse to apply for injunctive relief in relation to it, will not get a proper and safe resolution of the issues. The very class of person which the Green Paper most wants to protect will be left unprotected and in potentially extremely dangerous situations. Domestic violence very often comes to light only through the lawyers’ handling of the case when they learn it from a client who has kept it concealed from their family. Mediation in such cases will not work and should not be tried at all.

Medical negligence cases have played a very important role in improving health care by setting standards, publicising deficiencies and punishing failures. The thalidomide case is a very good example. In many cases, new procedures have been introduced and developed as a result of litigation. According to the Green Paper, taking clinical negligence out of legal aid would save £17 million.

Of the 500,000 avoidable incidents in England alone, as estimated by the DoH in 2009-10, the National Health Service Litigation Authority received only 6,652 claims. Expert solicitors who handle these claims will decide in 75 per cent of them that there is no case. Sometimes there is negligence but no injury and sometimes there is injury but no negligence. It is not possible to assess the chances of success in clinical negligence cases at the start of the case. There must be funding to find out if there is a case and for the higher cost cases. I follow the noble Lord, Lord Faulks in his pointing out that whether the issue is negligence or causation, expensive expert medical evidence is required to establish a basis for the claim before a decision to proceed is made.

The Government propose to remove legal aid for clinical negligence at the same time—I repeat, at the same time—as changing the no-win, no-fee agreements. I am grateful to the noble Baroness, Lady King, who pointed out to me that children who were said to be still covered for clinical negligence cases are not to be, on which I am sure she will expand. When Sir Rupert Jackson published his proposals, he said:

“I stress the vital necessity of making no further cutbacks in legal aid availability or eligibility … the maintenance of legal aid at no less than the present levels makes sound … sense and is in the public interest”.

His proposals are based on the continuing existence of legal aid. Its removal will deny access to justice to some of the most vulnerable groups in the country—children, the sick and disabled. The need to streamline costs and for systems to be efficient should not be at their expense.

[Baroness Northover]

Perhaps I may remind noble Lords that this is another time-limited debate. When the clock reaches the five, noble Lords have had their five minutes.