Legal Aid, Sentencing and Punishment of Offenders Bill

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. I realise that there are extremely strong feelings about the issue, not just among Opposition Members but on the Government Benches, but the cost of legal aid is an issue with which the Government must grapple. The hon. Member for Hammersmith made it clear on Second Reading that the Opposition would make cuts in a different area, but he did not tell us where they would be made. I might add that the same applies to every other policy that we hear about from Opposition Members, and to every other instance of opposition. The simple fact is that cuts must be made somewhere, and I believe that clinical negligence is one area in which it is appropriate to make them. The other way in which the gap that will be left by the removal of legal aid can be filled and access to justice ensured for the vast majority of claimants who have sustained, or at least allege that they have sustained, clinical negligence and have suffered injury as a result, is through the conditional fee arrangement. That too was mentioned by the hon. Member for Kingston upon Hull East, who made the important and correct observation that the CFA system had been introduced by the last Government to pick up cases in which legal aid was not available. I must say, with the greatest respect to him—and I have enormous respect for him, as a fellow member of the Bar—that that observation undermines the entirety of his argument. We can all, as the hon. Gentleman did, draw attention to emotive cases. None of us believes that those who sustain serious injury as a result of clinical negligence should not have an opportunity to seek redress from the courts as a result of these proposals or indeed any others. People have a basic right to seek access to justice. My judgment tells me, however, that the arrangements proposed by the Government have not just the two salutary features that I have identified, but a third benefit: they begin to deal with the spiralling costs of a legal aid system that has been out of control for far too long. Why does civil justice cost so much in this country? We have a tradition of getting to the truth and, indeed, a desire to do so, and it costs money to get to the objective truth. Having never practised in the area of clinical negligence myself, I was troubled and surprised to hear the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) refer to occasions on which the big beast of the national health service had effectively ensured an inequality of arms between it and those who alleged that they had sustained clinical negligence by failing to produce the documents and other evidence for which the civil procedure rules undoubtedly call. Although he did not give examples, I do not for a moment doubt his bona fides, or that he was referring to cases of which he had heard. However, if that is the case, providing legal aid for all clinical negligence cases is not the answer. I believe that the answer, which is relevant to his amendments, is twofold. The first way of dealing with that issue, to the extent to which it exists, is to ensure that the civil procedure rules in England and Wales, and whatever rules exist in Scotland and Northern Ireland, are amended to make absolutely clear that early discovery or disclosure, call it what you will—oral and, if necessary, documentary—is afforded to claimants, so that they have access to the materials that they need to submit to their medical experts. If those rules are not currently in place, my right hon. and learned Friend the Lord Chancellor, who is no longer in his place, will need to consider with the Civil Procedure Rule Committee precisely what changes to the rules ought to be made to redress that inequality of arms. In my respectful judgment, ensuring the continued existence of civil legal aid in an area in which the Government have indicated they intend to remove it, albeit with exceptional measures remaining, is not the answer. The second way in which the problem ought to be addressed is by the judiciary being much stronger with, and more critical of, public authorities when they seek to suppress information that is relevant to cases that come before the court or that is necessary to enable claimants to prepare their case properly. It must ensure that there is equality of arms and that people can best advance their case in the courts should matters need to proceed that far.