Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I will speak to Amendment 15, which is in my name and in the names of the Baroness, Lady Finlay of Llandaff, the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Beecham. As my noble and learned friend Lord Lloyd said, this amendment seeks to retain clinical negligence cases within the scope of legal aid. It is completely non-discriminatory, is not based on age or condition and saves money. The Government have so far argued vigorously that many cases would be funded by the proposed exceptional funding mechanism and that it was not necessary to guarantee this by retaining them in scope. While it is an improvement to have the situation clarified and legal aid guaranteed for at least this small band of cases, that is, in effect, all that the Government have provided—clarification and a guarantee of what was already on the table. I am pleased that the Government have moved forward on the retention of obstetric cases in scope, as opposed to relying on the exceptional funding route. This is very positive. In its statement announcing the change of approach, the Ministry of Justice said: "““We also agree that clinical negligence claims in obstetrics cases which result in severe disability must receive legal aid””." It went on to say: "““A safety net will continue to exist for other more serious and complex clinical negligence cases where there is a human rights issue””." This safety net is the same one that we were told meant that there was no need to retain even the obstetric cases in scope for legal aid because exceptional funding would take care of them. It is perhaps logical to conclude that exceptional funding is no more of an adequate safety net for other highly complex and deserving cases than it was for obstetric cases. Just about every clinical negligence case is complex, which is why, over time, successive Governments have agreed that clinical negligence needs to be kept in scope for legal aid. Not only would taking most clinical negligence cases out of scope result in higher costs to the taxpayer overall, but those costs will still be there but pushed somewhere else. Even more worrying, many people will be denied access to justice. The independent report by King's College London identified that the unintended consequences of taking clinical negligence out of scope for legal aid would be almost three times the projected saving for the Ministry of Justice budget—costs of £28.5 million set against a ““saving”” of £10.5 million. These clinical negligence cases which are not in scope for legal aid will in future be able to take their cases forward either through no-win no-fee agreements or with the benefit of exceptional funding. Under the new system, even if an expert report deems a claim to be valid, there is no guarantee that the claimant will receive representation under a conditional fee arrangement. ““After the event”” insurance is expensive, if, indeed, it is possible to obtain it. I do not believe that exceptional funding is a sufficient safeguard. If the Minister revisits the responses to the consultation on legal aid, he will find that the vast majority of lawyers involved in clinical negligence cases say that they will not be able to take on many of these cases under the new arrangements. The noble and learned Lord, Lord Lloyd, cited Lord Justice Jackson, who said that the most expensive and inefficient mechanism that it is possible to devise is being put forward to achieve this policy objective. I agree with that comment. Solicitors will be forced to cherry pick only the most obvious cases of negligence, with others being left with no way of moving forward. I do not believe that this is acceptable in our society.