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Lord Razzall: My Lords, without wishing to labour the point, I am sure that the noble Lord appreciates that cross-subsidies become complicated when the allocation of capital and of central overhead come into question. I am certain that the principle adopted is exactly as the
Lord McIntosh of Haringey: My Lords, I hope that I have done that adequately. I believe that the assurances for which the noble Lord asked are contained in government policy and in the accounting procedures of Companies House. On that basis--
Baroness Denton of Wakefield: My Lords, before the noble Lord sits down, he has not yet replied to my question about whether the provisions cover Scotland, Northern Ireland and Wales. With a Scottish DTI Minister sitting on the Bench next to him, I imagine that we know the answer.
Lord McIntosh of Haringey: My Lords, I thought that I had got away with that. The provisions certainly cover Wales. As the noble Baroness knows, Companies House is based in Cardiff. I do not think that the provisions cover Scotland and Northern Ireland, but, if I am wrong, I shall write to the noble Baroness. That is my fail-safe procedure. I commend the regulations to the House.
The Minister of State, Scottish Office (Lord Macdonald of Tradeston) rose to move, That the draft regulations laid before the House on 1st December 1998 be approved [Second Report from the Joint Committee].
The noble Lord said: My Lords, I beg to move the first statutory instrument standing in my name. It may be convenient if I give a brief explanation of each legal aid regulation we are considering. I shall deal first with the regulations which concern assistance by way of representation.
These regulations extend the availability of assistance by way of representation, which is a form of advice and assistance, as a consequence of the introduction of restriction of liberty orders and drug treatment and
First, we propose that assistance by way of representation should be available to cover all proceedings in relation to the variation or revocation of the restriction of liberty order or, as the case may be, the failure to comply with any of the requirements of the restriction of liberty order under the Criminal Procedure (Scotland) Act 1995.
Secondly, we propose that assistance by way of representation should be available to cover all proceedings in relation to the variation or revocation or review of a drug treatment and testing order or the failure to comply with any requirement of a drug treatment and testing order under the Criminal Procedure (Scotland) Act 1995. Assistance by way of representation is the most straightforward means to ensure that legal aid is available in relation to such proceedings.
The Criminal Legal Aid (Scotland) (Prescribed Proceedings) Amendment (No. 2) Regulations are entirely consequential on the extension of assistance by way of representation. The proposed changes remove the availability of criminal legal aid for proceedings in relation to the variation or revocation of a restriction of liberty order or the failure to comply with any of the requirements of a restriction of liberty order. Similarly, criminal legal aid will no longer be available for proceedings in relation to the variation or revocation or review of a drug treatment and testing order or the failure to comply with any requirement of a drug treatment and testing order. These changes will ensure that there is no duplication in the system and that no administrative inefficiencies are introduced.
The noble and learned Lord said: My Lords, the purpose of the draft Legal Aid (Prescribed Panels) Regulations 1998 is to establish the Clinical Negligence Franchise Panel as a prescribed panel for the purposes of Section 32(7) of the Legal Aid Act 1988.
Section 32(1) of the Legal Aid Act 1988 creates a general right for a person receiving advice or assistance or representation, to select the legal representative to advise, assist or act for him from among the legal representatives willing to provide advice assistance or representation under the Act. That right may be qualified under regulations made under Section 32(7), so that the person receiving assistance may only select from legal representatives who are for the time being members of a prescribed panel. These regulations give effect to the decision announced by my noble and learned friend the Lord Chancellor on 16th July 1998 in his written reply to the noble Lord, Lord Burlison, following the response to his consultation paper Access to Justice with Conditional Fees.
I turn now to the regulations. Regulation 1 provides for the way in which the regulations are to be described and the date on which, subject to parliamentary approval, they are to come into force; namely, 1st February 1999. Regulation 2 provides interpretation of important terms used in the regulations. I do not wish to go through them, but it may at this point be convenient if I briefly mention that the term "clinical negligence" has been used in preference to the more usual "medical negligence", because the word "clinical" encompasses all members of the medical and clinical services, including other health professionals such as radiographers, dentists and nurses. It is, therefore, more accurately descriptive of negligence claims brought against health professionals.
Regulation 3 establishes a panel of authorised litigators, which is to be called the clinical negligence franchise panel. This will be comprised of those litigators who hold a franchise contract with the Legal Aid Board. A condition of holding a franchise contract will be that the firm contains a solicitor who is a member of the Law Society's medical negligence panel of the Association of Victims of Medical Accidents' panel.
Regulation 4 sets out the scope of the regulations in relation to particular types of claim; it limits the right of an assisted person to select a representative under Section 32(1) of the 1988 Act, which I have already mentioned; and makes clear that other powers enjoyed by the board to limit representation for civil legal aid pursuant to a contract are not affected by these regulations.
The establishment of the clinical negligence franchise panel continues the Government's reforms of legal aid. An essential element of the reforms is to direct legal aid funding to those who need it most and to do this through providers of legal services who have demonstrated a recognisable standard of administrative efficiency and specialist expertise. All firms which wish to obtain a clinical negligence franchise must, therefore, satisfy the Legal Aid Board's franchise quality assurance standard and have, as a member of that firm, a solicitor who is also a member of one of the two accredited panels that I have already mentioned.
I think that there is almost universal agreement in the profession that medical negligence cases require a particular expertise. Success in clinical negligence cases rests on specialist expertise. Specialist expertise is achieved through experience. Experience is gained by practice. Firms which take on only one or two clinical negligence claims a year are unlikely to have the same levels of experience and skill as a firm which takes a number of cases per week. That is perhaps demonstrated by the fact that the results obtained in cases funded by legal aid demonstrate conclusively that lawyers who are members of the Law Society or the AVMA panel (the Association of Victims of Medical Accidents) achieve better results. They not only win more cases, but they also obtain better results; for example, in 1996-97 cases run by panel members achieved an average sum of damages of £48,500 compared with only £21,800 for non-panel member lawyers.
Directing clinical negligence claims to only those franchised firms with a contract will not reduce access. There will be an adequate number of contracts granted to enough firms to ensure that the expected number of clinical negligence claims (around 6,000 a year) can be dealt with. In areas of the country where there may be few franchised firms with contracts, it will be a condition of the contract that, where necessary, solicitors will travel to meet and take instructions from their clients.
I should point out that the establishment of this panel will not mean that no new lawyers can enter this field of litigation. The requirement is that the firm holding the franchise must have a panel member as the supervisor of the franchise. Lawyers joining that firm will be able to gain experience in a contracted firm, and achieve accreditation to one of the panels. Subject to meeting the franchise standards, they will be able to obtain contracts and be included in the prescribed panel.
There will be a comprehensive publicity campaign to bring to the public's attention the new category of clinical negligence and where and how they can obtain the advice and assistance that they need. Posters and leaflets are being produced to explain to the public the need to see a solicitor who is a member of the panel. That information will be made available in libraries and other public places as well as in citizens advice bureaux, law centres and other legal advice agencies. The leaflets will also inform people about the Legal Aid Board's "phone in" service, which is being provided free of charge and will provide information on which solicitors' firms have clinical negligence contracts. In addition,
From 1st February those on the panel will be granted contracts to undertake work on behalf of assisted persons with clinical negligence cases. After that date, and subject to an exception that I will come to, only firms on the panel will be able to conduct these cases. The exception is in respect of the 2,000 firms which currently have a franchise contract to conduct personal injury cases, which has until now included clinical negligence work. They will be entitled to continue to work on new clinical negligence claims but only until 31st July, by which time they will have needed to qualify for a clinical negligence franchise.
Moved, That the draft regulations laid before the House on 16th December 1998 be approved [Fourth Report from the Joint Committee].--(Lord Falconer of Thoroton.)
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