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The Lord Chancellor: Clause 7(7) provides that:

I suggest with respect to the noble and learned Lord that he should not be over-prescriptive in relation to these matters. Let me tell him why I cannot and do not think it would be wise to accept his amendment. It is important that the Lord Chancellor should be able to make limited provision for cases otherwise outside the scope of the community legal service where that would be appropriate to alleviate hardship. That seems an entirely sensible provision. What I desire to emphasise to the noble and learned Lord is that the provision confers on the Lord Chancellor a power only to give and not to take away, and the need could be urgent.

I can see that the noble and learned Lord, who is a purist in these matters, takes the view that Schedule 2 should be amended under the affirmative procedure. But there are arguments as powerful the other way. I indicated in my opening speech to the Committee that I thought it right that substantial change to the schedule should be made by the affirmative procedure, in particular if it was taking away. However, I believe it right that there should be powers for the Lord Chancellor to give and to be able to move swiftly to deal with specific problems that may arise. Those are my reasons for inviting the noble and learned Lord to withdraw his amendment.

3.45 p.m.

Lord Simon of Glaisdale: I am grateful to my noble and learned friend for his explanation; I hope he will not be offended if I add the words, "such as it was". Of course, he did not answer the question as to why he needs this power, except to say that it might come in useful at some time. That is simply not good enough.

As to the question of affirmative or negative resolution, we shall have to wait until Report stage when we see my noble and learned friend's better constitutional thoughts. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clinton-Davis moved Amendment No. 91:

Page 5, line 14, after ("2") insert ("or (Community Legal Service)").

The noble Lord said: In moving Amendment No. 91 I shall speak also to Amendments Nos. 99 and 107 which stand in my name and that of the noble Lord, Lord Kingsland. The purpose of the amendments--the first two are paving amendments--is to ensure that some personal injury cases remain within the scope of legal aid. I stress that this is simply a probing amendment. I have tried to list some of the cases which are likely to give rise to difficulty in practical terms.

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Conditional fee agreements are unlikely to be offered by lawyers for the foreseeable future on the scale that needs to be contemplated. There will be a serious reduction of access to justice for personal injury victims if no legal aid is available. It is worth noting in passing that a number of successful cases fall within the sort of categories listed in the schedule. I mention only some. For example, there was the liability in the Ben Smolden case. He was a rugby referee who suffered a paraplegic injury. There was also the issue of human growth hormone litigation. The difficult case, which is still pending in terms of assessment of damages at least, relates to chronic bronchitis and emphysema suffered by miners.

I add, in parenthesis, that when I was on the Front Bench dealing with that issue, I made it clear in answer to a question that the Government would not apply the sort of standards applied by insurers when dealing with such matters and would be not just sympathetic, but practically sympathetic.

There is also the question, not totally unrelated to that--in principle, at least--of chronic vibration white finger. I refer to the Myodil case. There are several others. The Hancock case dealt with long-term exposure to asbestos. There are other asbestosis cases. That illustrates the sort of cases that have been successful in the recent past. I feel that it may be necessary to revisit some of the arguments already touched on, and I do so because I have been able to reflect on what my noble and learned friend said about the availability of conditional fee agreements. The assertion was that those will become widely available and that insurance will provide a satisfactory alternative.

With respect to my noble and learned friend, I think that we need further and better particulars of the availability of insurance. He cited some cases. I tried to investigate this with practitioners and I am assured that frequently there are real difficulties in this regard.

Another point arises in relation to this. My noble and learned friend said that the better managerial arrangement of solicitors' offices should overcome any difficulties that may arise in that respect. He prayed in aid a press release from Thompsons. Thompsons is a large firm with a continuing cash flow. It is an extremely competent firm and I have the highest regard for it. However, it is very different from the high street practitioner who does not have the same sort of cash flow.

Premiums in the range of £70 to £100 may be required for a case and if there are a substantial number of cases, that will represent a real burden to ordinary practitioners who practise in the high streets up and down the country, and particularly to those in the poorer areas.

The question was also put to my noble and learned friend by the noble Lord, Lord Goodhart, and my noble and learned friend Lord Archer of Sandwell: what if his prediction is proved to be wrong? My noble and learned friend quite properly referred to his previous statement that he has power to intervene in certain cases of hardship. Again, I feel that we should request from my noble and learned friend a greater idea of what he has

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in mind. In this regard there is uncertainty and apprehension on the part of many practitioners. Those apprehensions--perhaps misapprehensions--should be put to rest. The deep concerns felt by those providing services at present ought to be met.

I said before that premiums ranged from £70 to £100. On reflection, I believe that the figure of £90 to £170 was quoted by my noble and learned friend, which adds to the burden that I have already sought to argue.

I hope that my noble and learned friend will feel that some of the cases that I have listed in the schedule give rise to particular problems. I do not propose to argue them one by one. I have touched on one or two. However, I hope that my noble and learned friend, while recognising that this is simply a probing amendment, will try to give as many satisfactory assurances as he possibly can to those very worried practitioners who are working, as far as they can, in the best interests of their clients. I beg to move.

Lord Goodhart: I rise to support the amendment. A long series of examples of cases is set out in which it is likely that CFAs will in practice be unobtainable and yet in which there may be a strong case for supporting a plaintiff who wishes to take action to claim damages. The list is extensive; there are 15 different examples. Each of them falls clearly within this category. The number of cases in the list is an example of the fact that it is wholly indefensible to exclude from public funding cases of personal injury. There are many types of personal injury case where CFAs will not be appropriate or available. The amendment illustrates the importance of returning to the principle of saying that public funding will remain available for personal injury cases, but will be excluded in cases which it is reasonable to expect to be funded through a CFA; and only in those cases will it be excluded.

Lord Campbell of Alloway: I wish to support the amendment for the reasons put so clearly by the noble Lord, Lord Goodhart, which are real, practical and wholly cogent.

Before I sit down I should like to take up the point that the noble Lord, Lord Clinton-Davis, made that sometimes it is forgotten and wholly unrealistic to compare the position of a firm of the ilk of Thompsons with that of a high street solicitor working in a poor area. The noble Lord speaks from his own experience and I think that we should defer to his opinion.

Lord Kingsland: I too rise to support the amendment tabled by the noble Lord, Lord Clinton-Davis. There seem to be two categories of personal injury cases covered in the proposed schedule. The first concerns vulnerable victims and the second concerns cases that will require a great deal of research and expenditure before the risk involved can be accurately assessed. That is why I think that the list is worthy of the noble and learned Lord's attention.

We had a long debate on the principles that lie behind CFAs and personal injury cases on Tuesday and it is certainly not my intention to repeat the arguments today. However, it should be borne in mind that when the legal

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services commission exercises its discretion in relation to a request for funding, one of its options is to suggest an alternative solution.

I want to ask the noble and learned Lord--perhaps he will say to me that it is obvious on the face of the Bill; nevertheless, it is not obvious to me so I shall ask him--in circumstances where such a list were to be incorporated, would it still be open to the legal services commission to say that in a particular case contained in that list a CFA would nevertheless be appropriate?

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