Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, Amendment 101A seeks to provide for the possibility of a wholesale independent review of clinical negligence claims by an independent person, and this would appear to provide for a review of both the civil procedure and legal aid funding. Having sat through the speeches at Second Reading and having responded to the debate on clinical negligence in Committee and again last week to other amendments moved on Report, like any other Member of the House I am under no illusion as to both the importance and sensitivity of this area. My noble friend Lord Phillips said something about the exceptional challenge that these issues give rise to and, when we debated amendments on Report last week, my noble friend Lord Faulks spoke to this amendment even though it was degrouped at that time. The amendment has the somewhat novel effect of permitting the Lord Chancellor to introduce an exceptionally detailed and costly review function for an entire area of civil litigation. Albeit that it is now couched in terms of a power rather than a statutory requirement, there would certainly be an expectation raised if Parliament were to pass it. There are, therefore, fundamental problems. I have alluded to the costs issue, and this cannot be overstated. One assumes that it is straightforward for the Government to set up a review, but a research, monitoring and evaluation framework of the magnitude proposed here does not give sufficient weight to the financial constraints under which the Government are operating. I recognise that the Government have in recent times committed resources to previous reviews, but the resources are somewhat more strained. At a time when we have had successive groups of amendments in which cases have been advanced for legal aid in particular areas to bring them within scope, which we have had to resist on the grounds of cost and because it was not part of the scheme, it is difficult to commit or even give the possibility of committing to a significant expenditure that would follow on from a review of this nature. According to the NHS Litigation Authority data for 2010-11, only 18 per cent of clinical negligence claims are funded by legal aid, so it would seem somewhat disproportionate to require the Lord Chancellor, in recognition of the withdrawal of the limited legal aid funding in this area, to monitor and evaluate all civil litigation in an entire area of law. That said, I can assure the House and my noble friend that the operation of the civil justice system in respect of clinical negligence is firmly in the department's sights, and we are working closely with the NHS Litigation Authority and claimant lawyer representatives to set up a pilot for dealing with low-value clinical negligence cases. My noble friend mentioned the Welsh redress scheme that was spoken to in the debates that we had on clinical negligence by my noble friend Lord Thomas of Gresford. It is important that the department concerns itself with such considerations as part of its general policy responsibilities. Given the attention that it has received in the context of this Bill and in this House it is clearly something on which the department has already thought long and hard. As I have indicated, we will set up pilots for dealing with low-value clinical negligence cases, which cover many of the cases that are brought forward. It is right that we do so as part of our general policy responsibilities. The amendment could lead to a burden or an expectation that we are unable to meet, and I therefore urge my noble friend to withdraw it.