Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, all the amendments in this group are directed towards the retention of legal aid in clinical negligence cases. This is an area in which I have practised as a barrister for the past 20 years or so, acting for both claimants and defendants; I continue to do so. I should emphasise that in making these few remarks I am not against Part 2, which brings into effect the Jackson reforms. Litigation costs have become wholly out of control, particularly in smaller cases, where legal costs tend to dwarf the sums at issue, and litigation has far too often become concerned about legal fees and the recoverability of insurance premiums rather than what should really be at the centre of the dispute. However, we should acknowledge that if Part 2 becomes law, difficult cases will be less attractive, as the noble Lord, Lord Wigley, has rightly pointed out. There will be no success fee recoverable, nor ATE premiums, and there is a significant risk that complex but meritorious cases will be uneconomical for legal practices to pursue. The paradigm case which concerns me—and, I dare say, many other noble Lords—is that of a brain-damaged baby. Of course, there are other entirely worthwhile and difficult cases, but such cases are particularly complex and often need many experts to tease out whether or not there is a case on liability or causation. Without legal aid, individual litigants or solicitors will have to carry investigative costs of many thousands of pounds before, in many cases, deciding that there is no claim to be pursued. There will, however, be quite a number of cases where entirely meritorious claims will simply be unfeasible, so that those who have to bring up brain-damaged babies will be unable to have the consolation and substantial financial assistance which a successful claim may bring as some slight mitigation to the hardship which the child and the child's family will have to undergo for the rest of that child's life. I understand that the Government have acknowledged that there is potential injustice in the removal of legal aid for such cases. What answers have they put forward in what I acknowledge as being a constructive exchange of views in this area? The first is that CFAs should be available. I am unconvinced of that. Availability would be theoretical only. At the very best, some of the largest firms might take on the occasional case on the basis that they could bear the risk of funding it, but no individual will be able to do so. The second answer given is that exceptional funding within the terms of the Bill will be available in such cases. That is on the basis, as I understand it, that funding will be forthcoming in circumstances where there would be a violation of an individual's convention rights if there were to be no legal aid I pointed out at Second Reading that clinical negligence cases very rarely involve any human rights violations. To that argument comes the rejoinder that the relevant article of the convention is Article 6—the right to a fair trial—and that if the circumstances are such that Article 6 is violated, exceptional funding will be forthcoming. The problem with that answer seems to me to be that the jurisprudence from Strasbourg concerning the circumstances in which the denial of legal aid or other state support would constitute a violation of Article 6 is considerably lacking in consistency and coherence. I do not see how anyone could advise their client with any confidence that the refusal to provide legal aid would constitute a violation of Article 6. That means that the exceptional funding answer is remarkably insecure. If it is really the case that the refusal to provide legal aid in such cases constitutes a violation of Article 6, I venture to suggest that there may be some difficulty in justifying the declaration of compatibility with the Human Rights Act which has been signed in relation to the Bill. If there is indeed an intention to provide funding for the sorts of cases that I am discussing, why not place the provision of such funding in the Bill rather than rely on the vagaries of exceptional funding and potential challenges by way of judicial review or otherwise if a determination turns out to deny access to legal aid in such cases? I appreciate that in the other place the Minister, Jonathan Djanogly, made some reassuring remarks in this area, but they went nothing like far enough to inspire the sort of confidence that is needed that these claims can be pursued. The final answer provided by the Government so far in response to the admitted lacuna is by means of the recoverability of ATE premiums in relation to experts’ reports by Clause 45. The noble and learned Lord, Lord Lloyd of Berwick, has very comprehensively decimated that argument. I acknowledge the genuineness of the Government’s attempt to provide an answer but it involves an assumption that a market can somehow be created by them legislating. If there is no market, as I suggest there may well not be, then this provision is wholly valueless. On the other hand, if there is a market, it is likely to be wholly unsatisfactory because it will, I suggest, involve enormous premiums which are unsatisfactory for a number of reasons. It is somewhat ironic that the main thrust of Part 2 of the Bill is to get rid of the paraphernalia of insurance premiums and those parasitic upon the whole business of conditional fees, yet by this clause the Government are bringing back that very thing. The retention of legal aid for these cases has, unusually, united both the claimants’ camp and the defendants’ camp. It is understandable, noble Lords might think, that claimants’ lawyers would want to preserve legal aid—less so, obviously, defendants’ lawyers. However, the preservation of legal aid provides some discipline on litigation. Lawyers and experts who are involved in a case have to be accredited effectively by a legal aid franchise. Rates are currently determined by the LSC and defendants are not faced with enormous claims for success fees and ATE premiums. If, as may well be the case, some 20 per cent of cerebral palsy cases result in a finding at trial in favour of the claimant, others may have to be abandoned or settled earlier. Then, to add to the point made by the noble and learned Lord, Lord Lloyd, the ATE premium is likely to be vast. I know that the Government are involved in talks with ATE insurers but it is somewhat unfortunate that a provision should be before the House while those provisional talks are still being undertaken. I very much support the suggestion in the amendment of the noble and learned Lord, Lord Lloyd of Berwick. It is one answer to a potential real injustice. There are other answers, such as the retention of legal aid for children generally in clinical negligence cases, or the retention of legal aid in cases which are of sufficient gravity that they result in a substantial change in individual circumstances. I entirely accept what drives the need to restrict the scope of legal aid but this, I regret to say, is a step too far for me.