Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I take note of the indication from the noble Baroness, Lady Finlay, that the House may have heard enough but I hope that noble Lords will bear with me for a little while. I spoke on this subject at Second Reading and on a previous occasion and I should remind the House that I have spent much of the past quarter of a century working on these clinical negligence cases. I remind myself of that also, lest I should be guilty of any lack of detachment on these difficult issues. I remain enthusiastic about legal aid. A well organised legal aid scheme with proper controls over funding, franchising of solicitors to ensure relevant expertise and a rigorous approach to the funding of individual cases is a highly worthwhile aspiration. Unfortunately, we have rarely had a scheme like that. In saying this, I do not wish in any way to denigrate the contribution of the many public-spirited lawyers who practise in the field, but too much has been spent on cases which have failed or were not really worth while even had they succeeded. It is perhaps something of an irony that clinical negligence—latterly, at least—has been a far more effectively funded area of the law than ever before. By ““effectively””, I do not just mean in terms of the size of the funding; I simply mean the efficiency in the way that specialist lawyers conduct this litigation. Not all claims have been funded by legal aid. In some there are difficulties of eligibility, and others have preferred to go the route of CFAs. These provide greater flexibility and, of course, greater profit. On the previous occasion, the Minister pointed out that more than 80 per cent of clinical negligence cases are taken under CFAs, so this remains, at least in theory, an option for the future. However, it is of course a much less attractive option. As the noble Baroness, Lady Turner, pointed out, there is no ATE insurance and success fees are limited to 25 per cent of past losses and general damages. This is particularly so with complex cases, where investigative costs are particularly expensive and may ultimately prove irrecoverable if the case fails to get off the ground or fails in the end. I have not been, as a number of noble Lords will be aware, entirely uncritical of this Bill. In particular, I was anxious to ensure that there was a reiteration in Clause 1 of the fundamental principle of access to justice, and I was concerned that there should be additional steps to underline the independence of the director of legal aid casework. Unfortunately, my views did not coincide with the views of the Government. One reason I felt able to support those amendments was that they did not involve any government expenditure but reflected what I thought were important principles about the justice system. However, with this group of amendments we are now concerned with areas that involve government expenditure, although quite how much, I accept, is very much open to debate. The financial situation requires there to be cuts and the Government have taken the perfectly reasonable view that the legal aid budget must bear its fair share. I remain somewhat unconvinced by the stance taken by the party opposite, which seems to be that civil legal aid would have been left entirely alone by it and, for the most part, CFAs as they currently are represent a satisfactory situation. The Government have had to take some hard decisions in cutting back on expenditure on legal aid. Surely we are acknowledging that and are engaged in scrutinising this Bill in an attempt to limit the damage rather than simply pretending that there are limitless funds available for legal aid. Perhaps I may join the noble Lord, Lord Carlile, and congratulate the Minister and his officials on their response to the concerns that I and other noble Lords expressed about the position of brain-damaged babies. The Government have put down this most welcome amendment. I genuinely believe that this is a thoughtful and appropriate concession and an indication that the Government are trying to address some of the very difficult situations which this legislation throws up. Other noble Lords have made cogent points about cases which fall outside this government amendment. Why stop at brain-damaged babies? In an ideal world, I would certainly agree. Of course, there are potential anomalies and complex cases involving adults and cases involving children who are still children but are over eight weeks old when a negligent event takes place. All noble Lords who have made these points have a valuable and persuasive argument and many of my professional colleagues would echo their concerns and support the arguments. If a line has to be drawn—it is a big if—is it right to draw the line with brain-damaged babies? I will not be popular with my professional colleagues for saying that perhaps a line has to be drawn somewhere. Another way of addressing the issue is to ask: is there anything unique or at least very different about these cases? I have probably been involved in almost all the types of cases that have been the subject of the debate in your Lordships' House. Many of them involved great difficulties. Of course, all those cases will be capable of being pursued, but not with legal aid. Why are these brain-damage cases so difficult? The main reason, which may not be wholly appreciated outside the world of medicine, is that most cerebral palsy cases are not the result of obstetric mismanagement or midwifery mismanagement. There has been an enormous amount of research on this which has shown that only a small minority could be so attributed. The popular notion that it is asphyxia followed by brain damage caused by too slow a response from doctors is not usually right. One of the difficulties in such cases is the necessity to obtain causation experts: neuro-radiologists, paediatric neurologists and neonatologists. Of course, all that costs time and money and involves a great deal of expertise on all sides. Those of us who have been involved in this litigation are often faced, at the end of the investigative process, with turning to parents, who, of course, care passionately about their children and are concerned to do everything they possibly can to help them, to tell them that the case cannot succeed. It is not a pleasurable experience but it is one that acknowledges the difficulty of establishing these cases. Who, among your Lordships, would deny those parents the opportunity of finding out whether they have a case? That is why, with some reluctance, I acknowledge that there is a very rough dividing line between these and other cases. What are those other cases? Like other noble Lords, I hope that the exceptional-funding route can provide some succour for those difficult cases. Perhaps the Minister will go further and consider some of the amendments more sympathetically than has been the indication so far. The alternatives put forward by these amendments are various. The amendment brought forward by the noble and learned Lord, Lord Lloyd of Berwick, seems, to my mind, to be almost unanswerable in terms of economics. It would provide some significant help to those cases that fall specifically outside the exception which is the subject of the government amendment. A report may not be enough, but it is certainly something. The other amendments go further and it may be that your Lordships favour them. Finally, I should mention the amendment in the name of the noble Lord, Lord Phillips of Sudbury, myself and others. I was asked to say something about it at this juncture so I shall very briefly. The amendment deals with the question of a review of clinical negligence. The range of the arguments and the difficulties that have been outlined in the course of this debate show how important it will be to see the effect of any changes brought about by this legislation. In due course, I hope that that will produce a positive response from the Minister.