Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, that is right. In addition to that issue, which goes to matters of causation and, potentially, liability, there is also a range of experts whose evidence is needed in determining the future needs of the patient in terms of care, education and support. The point is to underline that these are, necessarily, often complex cases, and they need careful investigation and support before they can be either settled or adjudicated. The Ministry of Justice has estimated the savings from its proposals at some £10 million. That figure will not go far towards matching Mr Gove’s suggestion of a new royal yacht as a timely gift to Her Majesty the Queen to celebrate the Diamond Jubilee and it occurs to me that the £250 million allocated by Mr Pickles for weekly waste collection would cover the sum in question for 25 years, but all that is beside the point. The reality is that the cost to the NHS will be considerably greater than £10 million. The recent King’s College report that some noble Lords have referred to suggested that a figure of £28 million would be the cost to the NHS of the Government’s proposals. That is surely something that none of us wishes to see. It would be caused by the availability of success fees where hitherto legal aid cases have not attracted such fees, and by meeting the cost of after the event insurance—again assuming, as a number of your Lordships have questioned, the availability of ATE. If ATE were not available then of course even more injustice would be done because it would be impossible to bring cases. But there must be a real question about the likely existence of a market for ATE insurance. Furthermore, under the Government’s proposals, there would be the 10 per cent increase in general damages. All of that clocks up to a figure substantially more than what would be saved. In addition to the financial aspect, there is the real impact on people who require assistance. The King’s College report also indicated that there would be a reduction of 75 per cent in legal help and 65 per went in legal representation from the admittedly not very large number of cases that are actually brought. That is a significant reduction. Although the noble Lord, Lord McNally, is not replying to this debate, he threw out the figure of a 17 per cent reduction in legal aid expenditure in discussing a previous amendment. However, the cut in civil legal aid generally would be 30 per cent, not 17 per cent. The Government propose saving some £285 million out of something like £900 million or £1 billion. Even the figure of 30 per cent looks modest, though, in relation to the cut that would be inflicted on a number of people who would be entitled to legal aid and representation in this most difficult area of law. The effect of what is being proposed here is another example of cost-shunting on to other government departments. I have a Question for Written Answer about whether consultations have taken place with other departments by the Ministry of Justice about the impact of the proposals in the Bill on their budgets and whether that has been agreed. In due course no doubt the noble Lord will reply to that and we will see then what is to happen. We have not ventilated the question of a risk register under this Bill as we have in respect of another and I hope that we do not have to go down that road, but it is clear from the evidence that there will be a significant burden on other departments and therefore the net saving to Government from these proposals, if any, is likely to be minimal. The NHS Litigation Authority, to which my noble friend Lord Howarth referred, made its views clear in its response to the consultation paper last year. In answer to the question: "““Do you agree with the proposals to exclude the types of case and proceedings listed … from the scope of the civil and family legal aid scheme?””," it stated: "““We have serious concerns over the proposal to withdraw legal aid from clinical negligence claims””." It said that the existence of a CFA sometimes means that there is an underlying conflict of interest between solicitor and client, a matter that has been raised and that members of the profession, certainly in your Lordships’ House, acknowledge is certainly a potential factor. However, it also referred to a paragraph of the consultation that stated that legal aid has contributed to containing NHS legal costs. The authority pointed out: "““In the absence of implementation of Sir Rupert Jackson's proposals to remove recoverability of uplifts and ATE premiums … the current proposal will undoubtedly cause NHS legal costs to escalate massively … Overall, we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria””." That is not, I suspect, the answer that the Government might have anticipated in the consultation. The NHS Litigation Authority also made clear, in response to a further question about a possible new scheme for funding individual cases where some provision of legal aid is necessary to meet domestic and international legal obligations—the noble Lord, Lord Faulks, dealt comprehensively with that rather weak argument about the applicability of the European Convention—that it was strongly in favour of retaining legal aid for clinical negligence cases and that, should withdrawal occur, it had doubts about the operation of a scheme that would cover high-value obstetric cases in particular, the very cases that the Committee has discussed at some length today. It asked: "““For example, would this scheme only cover cases of the most severe brain damage, or would it also extend to claims for moderate brain damage, shoulder dystocia or to children whose mental faculties are spared but who have serious physical disabilities?””." The authority indicated that the position needed to be made much clearer before it could consider such a proposal. It noted that, "““it is proposed that (outside the clinical negligence field) ‘very serious cases of negligence’ might receive funding. How will it be possible to define ‘very serious negligence’?””." It does not object to the proposal to retain legal aid for representation and, as we have heard, the chairman subsequently confirmed that position. There is a strong sense that the Government’s present position does not find favour in the Committee or, I suspect, more widely in your Lordships’ House. A number of amendments seek to address that issue. We would support Amendment 30, moved by the noble Lord, Lord Thomas. It emphasises the need for specialists to be members of panels and their evidence would be put back into scope for the purposes of legal aid. The amendment of the noble Baroness, Lady Eaton, is absolutely well intended but it runs into the difficulties that the NHSLA referred to in terms of precisely what aspects of negligence should be covered. The amendment may seek to cover all negligence sustained, not just perinatal injury, but it becomes a little difficult to justify providing legal aid for clinical negligence for someone under the age of 18 and denying it to anyone just over 18. What is the logical distinction there? Although that is better than nothing, in our view it is not sufficient. To a certain extent the same has to be said for the amendment so comprehensively moved by the noble and learned Lord, Lord Lloyd. His suggestion relies on Lord Justice Jackson, but only to a certain extent, because Lord Justice Jackson is very clear that there should be no reduction in the scope for clinical negligence. He was not suggesting a halfway house. Again, a halfway house would be better than nothing, but it certainly cannot be said that Lord Justice Jackson would be content with that. In moving his amendment, the noble and learned Lord also seemed to suggest that the extension of legal aid for the purpose of obtaining medical reports covered the obtaining of legal advice. It does not appear to do so. Without the advice one wonders how far the matter could be taken. He also claimed that the effect of his amendment would be to save the Government money—I think he said £18 million against a cost of £6 million—on the basis that legal aid would be available for expert evidence. By that logic, presumably if legal aid were fully available, even more money would be saved by the Government, which is, of course, essentially the position of the NHSLA. So we come back to the position where it makes economic and financial sense, as well as moral and social sense, to make sure that legal aid for clinical negligence is back in scope, full stop, particularly, if the noble and learned Lord’s financial arguments are correct, as there would not be a net cost to the Exchequer. In any event, these are serious issues. The notion that legal aid is to be denied to any vulnerable group of people is one which has to be weighed extremely carefully. There would, I think, be complete public support for the retention of legal aid for clinical negligence, not least because, as some in the profession and the NHSLA itself have indicated, it is a kind of discipline. It is an additional incentive for the better management of care and for greater attention to be paid to the risks that occur, bearing in mind the point that the noble Lord, Lord Thomas, rightly made that the state of medical knowledge changes and what is eventually learnt to be good practice is not necessarily immediately obvious at an earlier stage. If ever there was a case in which the pressure of the potential litigation should serve the public good, it might be thought to be in these cases. As we have already heard, a reasonably high percentage of the population suffer to some degree from negligence and it would be wrong in that context to dismantle the machinery which affords them access to justice. I would hope—and others have also expressed this hope—that the noble and learned Lord, in replying to the debate, would acknowledge that this is a matter in which the Government need to listen to your Lordships’ House, to make more than a gesture or partial concession to a limited group of potential claimants, and to recognise that there ought to be a complete restoration, or retention, of legal aid for clinical negligence. It is not particularly costly and would be broadly welcomed across both the legal and medical professions and, more importantly, by the general public.