Legal Aid, Sentencing and Punishment of Offenders Bill

It would be extremely important if the Government acted on it. We do not know that they will. While the noble Lord claims credit for the amendment, he was not quite so enthusiastic when it was being debated in Committee at the instigation of this side, but that is a little beside the point. The litigation authority states clearly: "““Overall, we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria””." In that phraseology, it echoes the words of Lord Justice Jackson. Welcome as the government amendment is, they anticipated some discussion about it because they also questioned whether the scheme would cover only cases of the most severe brain damage or whether it would extend also to claims for moderate brain damage and shoulder dystocia, or to children whose mental faculties are spared but who have serious physical disabilities. We know that we are dealing only with a limited number of perinatal cases, as movingly explained by the noble Baroness, Lady Eaton. Again, it would seem that, on balance, the litigation authority, although it welcomes no doubt the progress made so far, would not be content with leaving the situation as it stands. Of course, the case of Sophie Tyler was very moving. It is interesting that her solicitor said: "““This is an important case which has allowed our client to access justice and secure the lifetime of future care she needs but it would not have been possible without the support of legal aid””." That is a very important observation. However, there are many other kinds of claim which arise out of different types of clinical negligence and with different effects. While the number of adverse incidents has now risen to 1.15 million, there are some 2,500 clinical negligence claims in what is a called a ““serious category””. Of those, 12.5 per cent result in death; 17 per cent lead to unnecessary operations or amputations; 8 per cent lead to damages to nerves or senses; and 2.9 per cent lead to cancer. So 50 per cent of six major categories overall are not of the kind that would be covered by the government amendment. In these circumstances, it is quite clear that a substantial number of people will not be able to access legal aid. Despite the assertions of the noble Lord, Lord Thomas, it must be questioned whether the conditional fee system would be an answer to that and, in particular, whether that would not in itself increase the costs to the National Health Service.