Legal Aid, Sentencing and Punishment of Offenders Bill

Stephen Phillips Excerpts

Monday 31st October 2011 Commons Chamber

The Government seem content to find fault with solicitors in this matter. Indeed, they seem almost to assume that lawyers tend to drag things out in proceedings. I can assure this House that it is quite the reverse. In my experience of litigating against health authorities, they are among the most unco-operative bodies one will ever encounter. Often, they withdraw or even hide evidence until the very last minute, and deliberately obfuscate. Individuals finding themselves litigating in person against these authorities are in a dead-loss situation.

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

The hon. Gentleman is making a very serious charge against public authorities, and indeed those who represent them, by suggesting that they obfuscate and withhold evidence in circumstances where their disclosure obligations are very clear under the civil procedure rules. Can he put some flesh on the bones and substantiate his allegation?

[Mr Llwyd]

I do not have any cases with me today, but I can assure the hon. Gentleman that I would not make the allegation without some evidence.

[Mr Llwyd]

That is the point. Unless and until there is full disclosure at the very earliest point, these cases will be drawn out until the evidence is available. Everybody knows that any case against a health authority has to rely on expert evidence, and it is impossible to have that without experts’ reports from the health authority. This is the conundrum facing people who are often two, three or four years down the road and still no nearer to a conclusion. That is exactly the position that many people report, and that is why lots of these cases are, as we hear, high-value cases.

[Stephen Phillips]

The hon. Gentleman will obviously have absolutely no doubt about the bona fides of the charges that he is effectively laying at the doors of the national health service and others, but does he ascribe the position to problems with management or to seeking to protect individual medical practitioners? The two seem to me to be very different.

[Mr Llwyd]

I would speculate and say that it is probably to do with management rather than protecting individual practitioners, but I cannot give any assurances on that. What I am saying here today is common knowledge out there; it is not a new allegation that I have dreamed up just to try to grab a headline at this late stage. [Interruption.] To answer the hon. Gentleman’s question honestly, I do not know, but I would guess that it is a management issue, because whenever there is a claim, it is reported to management immediately—on the very first day, I expect.

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[Tom Brake]

My colleagues and I will get used to interventions of that nature, but the hon. Gentleman will not be surprised to hear that I am expecting some reassurance from the Minister that the Government do not have a closed mind. Even if we cannot make progress in the House, there could be opportunities in another place to do so. I am just putting down a marker for the Government that they should entertain that idea.

[Stephen Phillips]

As I understand it, amendment 132 relates to medical negligence within the scope of the European convention on human rights, which is excluded from legal aid in the Bill. If it is a probing amendment, will the right hon. Gentleman indicate the sort of cases he has in mind? I cannot envisage a case involving convention rights that would involve medical negligence.

[Tom Brake]

I thank the hon. and learned Gentleman for his intervention, even if he has identified a flaw in my proposal. The funding available for legal aid in cases of medical negligence deals with the serious cases with which Members will be very familiar, such as obstetric accidents. However, I am seeking clarification from the Minister, because although some of the funding for dealing with such cases will still be available through exceptional funding, some of it will no longer be available. I am seeking confirmation from the Government that all very serious cases will be addressed through the exceptional funding route. I hope it will be possible for the Government to identify additional funding to address the funding gap for any remaining cases, as I have done in amendment 144.

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I am well aware that many right hon. and hon. Friends are desperate to speak to the group of amendments on social welfare, so I will finish my remarks there.

[Stephen Phillips]

May I say what an enormous pleasure it is to follow the hon. Member for Kingston upon Hull East (Karl Turner) and to commend at least some of his comments to my colleagues, particularly to those seeking the promotion of my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox)? I make no comment about any other Queen’s counsel on this side of the House.

There is undoubtedly a fundamental problem with civil legal aid. The simple fact is that to bring cases for which legal aid is available to trial in this country costs more not only than it does in civil law systems that do not recognise the extensive discovery that we have here in England and Wales and in other jurisdictions of the United Kingdom, but more than it costs in other common law jurisdictions such as New Zealand and Australia and in other jurisdictions that have essentially inherited our legal system. That fundamental problem is one with which, because of the deficit we were left by the last Government, this Government have had to grapple. [Interruption.] I can see the hon. Member for Hammersmith (Mr Slaughter) mouthing something from a sedentary position. If he wants to intervene, I am happy to allow him.

[Mr Slaughter]

I felt that the hon. Gentleman was about to get into a long peroration that would be more suitable for a Second Reading debate. I was simply reminding him that the amendments we are debating are about clinical negligence.

[Stephen Phillips]

I am grateful, but I see Mr Deputy Speaker in the Chair this evening. I am sure that if I am out of order at any stage, he will upbraid me. I do not need any lessons from the hon. Member for Hammersmith about how to speak in this Chamber or indeed about the remarks I intend to make tonight. [Interruption.] The simple fact of the matter is—[Interruption.]

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. I think Mr Slaughter needs to calm down.

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[Stephen Phillips]

I am extremely grateful, Mr Deputy Speaker. The simple fact is that these amendments, which seek to reverse the Government’s position that clinical negligence should be removed from the scope of the exceptions in the Bill, have to be considered against the background of the current position as it prevails in relation to civil legal aid. If that point has escaped the hon. Member for Hammersmith, it is not one that has escaped me or, indeed, my hon. Friends. I remind him that it was the manifesto commitment of his party that Labour would have reformed the civil legal aid system if they had formed the next Government.

In those circumstances, we come to the particular context of these amendments and of whether it is appropriate to remove clinical negligence from the scope of legal aid and leave the gap to be picked up in two ways. I am sure that the Minister will make it clear in his concluding remarks how that gap will be picked up. At this juncture, I should say incidentally to the hon. Member for Kingston upon Hull East that I have made no representations at all to the Minister about this Bill, although I was grateful for the hon. Gentleman’s earlier observations. The Government believe that that gap will be filled in two ways. First, the exceptional funding that the Bill makes available will pick up many clinical negligence cases that would otherwise have attracted legal aid funding from the Legal Aid Board. That may satisfy some, and it may deal with part of the problem.

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[Mr Llwyd]

The hon. and learned Gentleman makes very good points. I tried to say that there should be a twin-track approach. In my perception, there is a problem with regard to the administration of health authorities and full early disclosure, so he is absolutely right. However, I still say that there should be more than just a basic safety net in awful cases such as when somebody is a paraplegic upon birth.

[Stephen Phillips]

I am grateful to the right hon. Gentleman for his observations, but he may be eliding two matters. The first is the unavailability of legal aid for what we might call cases in the middle—neither the severe cases that will be picked up by the exceptional funding arrangements or CFAs, nor the cases in which solicitors and counsel will be prepared to take the case on and earn their money well down the line. I agree that that middle group of cases is the difficult group, but as well as the CFA arrangements mentioned by the hon. Member for Kingston upon Hull East, one must consider whether those cases are likely to be picked up and run with by the legal profession. My judgment is that they are.

Never having done a clinical negligence case, and having no expertise in those cases at all, I base that judgment partly on my experience of the position as it prevails in many jurisdictions in the United States, where of course no state or federal funding at all is available for civil cases. A legal profession has grown up in which attorneys have had to educate themselves about which cases they should be prepared to take. They consider which cases are worth taking forward, but also those that they believe have merit from a perspective of social justice and ensuring that there is access to justice for all.

Having worked with many attorneys across many jurisdictions in the United States, I can tell the right hon. Member for Dwyfor Meirionnydd that there are attorneys who take cases that they suspect will lead either to a settlement, out of which they will get very little or nothing, or to an eventual loss if they have to take the matter to court. They consider that part of their professional obligation.

I hope that both limbs of the legal profession in this country will come to appreciate that we owe an obligation not merely to try to make money out of the practice of law, but to do what we all did when we first came to the law—have a burning sense of justice on behalf of our clients, so that they are properly represented whether or not we believe them, whether or not we think their case is meritorious and certainly whether or not we think we will make money out of it. I hope that that deals to a large extent with the right hon. Gentleman’s points. I am, of course, as concerned as he is that there may be a group of cases in the middle that will somehow fall through the net. If that is the position, we may have to revisit the issue later.

[Sir Alan Beith]

rose—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

I call Sir Alan Beith.

[Stephen Phillips]

With the leave of the House, I was about to make my final few remarks.

[Sir Alan Beith]

I apologise to my hon. and learned Friend; I thought he had concluded his speech.

[Stephen Phillips]

The amendment proposed by my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) addresses schedule 1 and the non-exclusion of clinical negligence cases in the context of convention rights. As I have informed the House more often than, perhaps, I ought, I have never conducted a clinical negligence case. [Interruption.] Mr Deputy Speaker tells me that the House has taken that point on board, and I am pleased it has taken at least one of my points on board.

Notwithstanding the Government’s insistence on the exclusion of clinical negligence in this context, I find it difficult to envisage any circumstances in which a case could be brought under the convention that engages this part of the law. I am not sure that my right hon. Friend addressed that point adequately—or, indeed, at all—when I intervened on him earlier, but he has said that this is a probing amendment that may have to be debated further in another place. At present however, I remain perplexed by the amendment.

[Tom Brake]

My hon. and learned Friend highlighted a flaw in the drafting of the amendment, but in his contribution this evening he has identified the group of cases that gives me some concern: the group of middle cases, as he described them. He has, I think, suggested both that he also has concerns in this regard and that the Government may need to address the matter in future.

[Stephen Phillips]

It may be an area the Government have to come back to. The amendment would change schedule 1 and, specifically, the cases for which civil aid is, and is not, available in the context of breaches of convention rights by a public authority. It addresses the convention rights contained in the Human Rights Act 1998, a piece of legislation of which the House will know I am not greatly enamoured. Clinical negligence is itself defined in paragraph 20(6) of the schedule, and the amendment suggests that civil legal aid should continue to be available in cases where a breach of convention rights is asserted in the context of clinical negligence. Although I think the Human Rights Act is bad law, I find it difficult to envisage circumstances in which the convention might be used and legal aid ought, in any event, to be available.

I therefore do not support the amendments, as they are unnecessary and misconceived, and the Government will have my support tonight.

[Sir Alan Beith]

I apologise to my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) for having misinterpreted—and for perhaps leading you, Mr Deputy Speaker, to misinterpret —his meaningful pause, which sometimes occurs when senior counsel are delivering their well-chosen words, and which led me to think he had finished his speech.

I commend the members of my Committee who have brought this issue to the attention of the House: the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) and the hon. Member for Kingston upon Hull East (Karl Turner). The current system reveals many shortcomings in dealing with matters of this kind. I can recall a case, which went on for many years, of a young man who was brain damaged for life because he was not provided with proper recovery following an operation after a road accident. It was only when I managed to drag some information out of a health authority that the third firm of solicitors involved sued the second firm of solicitors for its professional negligence in allowing the matter to run out of time when a claim against the health authority would have been successful had it been undertaken with that information in the first place. These very difficult matters frequently involve the kind of cases that most of us are concerned about tonight: lifetime injury cases with very high care costs for those involved. My understanding is that when it comes to recovering costs from people who have been awarded damages in these circumstances, they will be recovered not from their damages for care, but from the other aspect of damages; a provision that the court has made for someone’s lifelong welfare ought not to be affected.

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[Guy Opperman (Hexham) (Con)]

I think I am unique in this House in that I have had a great deal of experience in clinical negligence and have practised for the best part of 12 years almost exclusively on behalf of claimants. I have conducted well over 100 clinical negligence cases, against a multitude of general practitioners, hospital trusts and the like. They were primarily insurance-backed or conditional fee arrangement cases, although some of them were occasionally legal aid cases. I believe that, in the great tradition of the Government, I have still been unpaid for some of that work, notwithstanding the fact that I have not completed any work as a lawyer since I was elected in May 2010. So I should declare an interest in that I believe I have some legal aid fees outstanding, not that I am pressuring the Minister in any way to beat a path to my clerks and my chambers to pay the bill.

I should also declare an interest as a former lecturer and a member of Action against Medical Accidents—AvMA. I have written extensively on this area and am a member of the Association of Personal Injury Lawyers. I have given instructions to a multitude of different hospitals up and down the country, assisting them on how they can avoid clinical negligence claims. I was retained as counsel for several hospital and trust institutions, advising on how to avoid these claims and how to move forward. I should also declare an interest in that I am part of the team pushing for a culture of openness and have met the hon. Member who so very helpfully saved my life in May, my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter). So I have also conducted an in-depth study of the NHS over the past six months in a way that I did not expect when I was first elected.

My final declaration is that I have great respect for the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who occupies part of a seat that I fought in 2005 of the Lleyn valley and peninsula in what was Caernarfon. I know that he is an outstanding MP and barrister and I have great respect for the points that he makes, as I do for the submissions and proposals of the right hon. Member for Carshalton and Wallington (Tom Brake) and the hon. Member for Kingston upon Hull East (Karl Turner).

Let me address the proposals of the right hon. Member for Dwyfor Meirionnydd regarding the duty to come clean. It must surely be the case that NHS authorities should come clean at an early stage and I endorse some of the comments that were made about this being something to be addressed not so much in the Bill as in the NHS’s culture and approach. I regret to say that I disagree with my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) about this, and I have a copy of an article that I wrote for an Association of Personal Injury Lawyers publication on this exact point. In my experience there is ample evidence of isolated examples of an NHS trust deliberately defending a claim on an ongoing basis in the hope that the relevant individual goes away. That is a serious allegation to make, but it is not just me who says it—cases have been reported. I recommend very highly the amazingly well-written edition of APIL PI Focus, volume 20, issue 3, which I co-authored, which addresses that particular point.

[Stephen Phillips]

I make it clear for the fourth time that I have no experience in this area, and I have no doubt that such cases exist, but are they not exactly the sort of case that the civil procedure rules were introduced to deal with? Judges have powers to ensure equality of arms and if defendants behave badly they ought to be punished accordingly.

[Guy Opperman]

I totally endorse that point and such defendants are punished accordingly, particularly in the punitive elements of costs when they are assessed. There are punitive factors that my hon. and learned Friend as a judge would know one is able to impose in a civil court whereby—[Interruption.] I accept that he is not a civil judge—it shows. There is an ability to punish the offending NHS institution or doctor, but the fair point that has been raised and must be addressed is that the powers that would exist to a civil judge, were my hon. and learned Friend to be one, would arise quite far down the track in civil litigation and not at the outset. I come back to the legitimate and fair point that we should address this issue to NHS trusts and particularly to two types of individual, including, first, to chief executives. Regrettably, there are examples of a failure of leadership by chief executives because, clearly, they are mindful of their budgets and they do not like the idea of a culture of openness in which mistakes are admitted. In those circumstances, whether implicitly or directly, efforts are made to suppress litigation against NHS trusts.

The second group of individuals who should be involved is doctors and consultants. Because theirs is such a hierarchical profession, instead of having a culture of openness in which mistakes are readily admitted, there is, sadly, from time to time—I have professional experience of this—a failure to admit mistakes. As the hon. Member for Kingston upon Hull East will sadly and tragically have discovered—and I have been involved in several such meetings—there is a post-operative debrief within the health service.