The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): My Lords, it is local authorities that have a duty to provide allotments. Nevertheless, the Government are working with voluntary and community sector organisations, including the Federation of City Farms & Community Gardens, the Allotments Regeneration Initiative and the National Society of Allotment & Leisure Gardeners, to promote the importance of allotments and to encourage and support local authorities and other landowners to make more land available for food growing.
Baroness Sharples: With a countrywide shortage of plots and a growing list of applicants, who in some cases have waited many years, does my noble friend know why councils do not follow the good example of Christchurch in Hampshire, which is developing an allotment strategy consultation to help everyone concerned?
Baroness Hanham: My Lords, I am sure they can do that without any intervention from Parliament. As I said, local authorities are responsible for the provision of allotments and for encouraging their own communities to look at the sort of strategy that the noble Baroness has suggested.
Lord James of Blackheath: My Lords, is the Minister aware of the undertaking given by the previous Government when a similar Question was asked, to the effect that they would stop the practice of councils dumping contaminated soil on allotment land and then renting that land out to handicapped people who are not in a position to resist? Will the Minister move immediately to stop this outrage?
Baroness Hanham: My Lords, the noble Lord has raised a point on which I am not briefed. I am bound to say that it goes a bit wider than I had expected. However, if that is happening and it is true that local authorities are dumping contaminated soil on allotments, that is an outrage because people are growing vegetables and produce for eating. I will make some inquiries and come back to my noble friend.
Baroness Parminter: Given the huge benefits to individuals and communities of food growing and the welcome explosion in interest in doing so, does the Minister believe that the final form of the national
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Baroness Hanham: My Lords, the final form of the national planning policy framework is still being realised. Of course, the Localism Act contains a number of provisions that would help local communities to do precisely what the noble Baroness has suggested. There is a community right to challenge, so voluntary and community bodies can challenge on bits of land to suggest that they take them over. There are the neighbourhood planning provisions, where local neighbourhoods can come together and identify land for use that they think is sensible, and allotments might come under that. There is also the community right to buy, where again local communities can identify land that they consider to be an asset and if it comes up for sale they are in a position to make a bid for it.
Baroness Gardner of Parkes: Will the Minister tell me whether there are many problems such as the one in my village, where the allotment holders were encouraged to grow everything without any water supply? They did so successfully for many years. However, as we have had a few very dry years it has not been possible recently. Now they want to put in a water supply, and apparently, in order to make it practical for the allotment holders to fund the water supply, they need a long- term lease on the property, which I believe is owned partly by the local church. However, the lease is not the main issue, but rather a total disagreement about who should provide water to an allotment.
Baroness Hanham: My Lords, again, the question put by the noble Baroness is quite localised, because I suspect that there are some allotments which are provided with water. That must be a matter for the local authority to which she refers, and I should think that the allotment holders would be in a very strong position to ensure that they received or found that water.
Baroness Howe of Idlicote: My Lords, given the importance we all clearly give to the growing of food and the knowledge of how food is grown, could the Minister give us any indication of how many schools have allotments, and whether there are many others that are preparing to follow their example?
Baroness Hanham: My Lords, I cannot give an exact reply to the noble Baroness about numbers. There is, however, strong encouragement for schools not only to work allotments but to have their own facilities in their schools to encourage children to grow food, and many schools do that. Defra is already encouraging that. There is a strong element of enthusiasm and encouragement to make sure that schoolchildren understand where food comes from, and that it does not just come out of a plastic packet.
Baroness Royall of Blaisdon: My Lords, clearly this is principally a matter for local authorities, but there is a great deal of best practice to be spread, and I am sure that both the Government, the Opposition and all members of this Chamber can assist in spreading best practice. I am very proud to be a patron of
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Baroness Jenkin of Kennington: My Lords, I wonder whether the Minister is aware of schemes such as Landshare, which, in places where allotments are scarce, are a tremendously useful resource. Those who have additional land that they can no longer manage themselves are encouraged to advertise it on a website, so that local people can come and dig it over and use it themselves, thereby expanding the use of land whose owners can no longer manage it.
Baroness Hanham: My Lords, that is an extremely good scheme. Of course, one of the things that may affect that is the nature of the agreement with the local authority, if that is who owns the plots, as to how they can be used. There are already examples of land being subdivided, and plots being subdivided where people find them too large. That is excellent, because it means that more people can get involved.
Baroness McIntosh of Hudnall: My Lords, although of course I accept that this is largely a local authority matter, does the noble Baroness agree that allotments in cities are a very important part of the overall urban ecology, and that there are often small plots of derelict land which could be made available? Will she encourage local authorities in cities to view the possibility of small amounts of land being turned over to food production where there is a local community willing to set them up?
Baroness Hanham: My Lords, that takes me back to an earlier reply. In future, under the Localism Bill, as regards plots of land such as the noble Baroness has described, if local communities think that that would be a good use for them, they can identify that and, under neighbourhood planning, make sure that that happens. I do not think that there is anything against what the noble Baroness has put forward. Indeed, there should be a lot of encouragement for it. However, land in London is very expensive.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford): My Lords, through the revised schools admissions code we seek to give all schools, including grammar schools, greater flexibility in determining the number of places they wish to offer to their communities. This should help to ensure that parents are increasingly able to have the offer of a place at a good and popular school, whatever its type.
Baroness Jones of Whitchurch: I thank the Minister for that reply. Will he confirm that it is now the Government's policy that existing grammar schools can expand their size or create satellite schools in neighbouring areas? Is he concerned that well run state schools could be forced into a battle for survival as nearby grammar schools attempt to cherry-pick the best performing pupils? What advice would he give to parents of children who fail the 11-plus or would prefer their children to attend non-selective schools, and who are no longer able to object to grammar school expansion under the new schools admissions code?
Lord Hill of Oareford: My Lords, first, the Government have not changed the rules governing satellite sites and the possibility of that. They are the same rules that were in place under the previous Government and the admissions code does not affect them. With the admissions code generally, we are trying to get to a point where it is possible for all kinds of schools-where there is popular demand for them and where there are good and strong schools-to be able to grow in response to parental demand. We did not think that it was right to exclude from that greater freedom the small number of selective schools in the system.
Lord Cormack: My Lords, does my noble friend accept that many of us who had the advantage of a grammar school education believe that the destruction of the grammar schools is to be deeply regretted? Therefore, will he accept that the policy that he has enunciated today will give modest encouragement to many people, and rightly so?
Lord Hill of Oareford: My Lords, I think, and hope, that the policy I have enunciated today is a consistent and pragmatic approach to how we can try to get more choice into the schools system for all kinds of schools. This change to the admissions code makes a modest contribution to that, but we think it is right that that should extend to grammar schools, as it does to all other types of school.
Baroness Walmsley: Will my noble friend join me in congratulating Bradford Girls' Grammar School, which has decided to abandon selection, to become an academy and accept the statutory admissions code, and thereby to return to its roots-providing a good education to all girls locally?
Lord Hill of Oareford: I am very happy to join my noble friend in extending congratulations to that school and to all others. I am glad that they are able to take advantage of the freedoms that the Government have provided to choose academy status and to decide what
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Lord Flight: My Lords, does the Minister agree that able children should be able to go to academically good schools, whether they are grammar schools, academies or new independent schools, and that it is not only the right thing for them but in the national interest to make sure that the ability is coming up to run key aspects of the nation's life?
Lord Hill of Oareford: I agree with my noble friend. The point of what we are trying to do is to make sure that there is a decent education system that can stretch and provide a good education for children of all abilities and aptitudes, including the bright and academically gifted. As it does, we are trying to increase the provision of university technical colleges and studio schools for children who are of a different bent.
Lord Grocott: Would not the Minister acknowledge that these really were the bad old days? A decision was made whether children, at the age of 11, should go into a form of education that would in most cases determine their life chances thereafter-their income, capacity to join professions and a range of other possibilities? The other not half but three-quarters of children, or in some cases even 90 per cent-the percentage varied almost randomly according to which local authority area you happened to live in-were told, at age 11, "This is how the rest of your life will operate. We've made a judgment. You're not as able as the rest, and therefore your life chances will be diminished". We do not want a return to those bad, bad old days.
Lord Hill of Oareford: My Lords, the point I was trying to make is that we want a system that provides opportunities for children irrespective of their background, gives them the chance to get on, whatever their age and stage, and gives them repeated chances to get on. To that extent I agree with the thrust of what the noble Lord said. For some that will be an academic route; for some it will be a technical route; for some it will be a vocational route. We want to move away from the idea of one size fitting all and have a more diverse system that responds to what children need.
Baroness Farrington of Ribbleton: Does the Minister accept that there are those who attended selective schools who did not find them helpful? I ask him to remember that when, at the age of 13, I was asked by my careers teacher in a girls' grammar school about my ultimate aim in life and I said, "To become a Labour politician", I was asked whether I was being deliberately insubordinate.
Lord Wallace of Saltaire: My Lords, we have funded research by the Electoral Commission to discover how deep the problems with the existing system are. It shows that the register has become significantly less complete during the past 10 years. The register is around 85 per cent accurate and, as of December 2010, was 85 to 87 per cent complete, with around 6 million electors missing from the register compared to an estimated 3.5 million in 2000. The data show that the current system is not as good as many people thought it was. These findings show that now, more than ever, it is important that we take steps to improve registration rates as part of the move to individual registration. This includes looking at how we can most effectively reach those groups most likely to be missing from the register.
Lord Rennard: Does the Minister agree that we need talks between all the parties, the Electoral Commission and others so that we have confidence that we are handling the transition to individual voter registration in such a way as to ensure that many more people are not missing from the voter register in future? Given the consensus shown in this House in last Thursday's debate, does he agree that the sanctions which currently apply to households and make most of them conform with the process should continue to apply to individuals?
Lord Wallace of Saltaire: My Lords, my noble friend asks several questions. We value the independence of the Electoral Commission as an umpire for this system. We recognise that the integrity of the system depends on the trust and confidence of all parties involved. We noted the calls from around the House, including from the noble Lord, Lord Wills, last Thursday, for a new all-party group to ensure that confidence is maintained. I have fed that in to fellow Ministers.
Lord Wills: My Lords, I welcome the response from the Minister on cross-party talks and very much endorse what the noble Lord, Lord Rennard, said. Does he agree with the assessment of the Electoral Commission that the approach being taken by the Government towards implementing individual registration risks even more millions of eligible voters falling off the register?
Lord Wallace of Saltaire: My Lords, the Electoral Commission's estimate that there might be as many as 10 million electors missing was very much a worst-case analysis. We are proceeding from that basis and have to ensure that we achieve a much better result than that. As the noble Lord will know, experiments with data-matching have been achieved. We are considering
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Baroness Berridge: My Lords, the Minister mentioned various ways of ensuring that people stay on the electoral register. One of the groups missing comprises those in private rented accommodation. Will my noble friend the Minister take forward the specific suggestion I made in last Thursday's debate: that we ask the Post Office to include on the application form for redirecting mail a question about whether customers want to go on to the electoral register at their new address?
Lord Wallace of Saltaire: My Lords, we took that on board and it is one of the many matters being considered. I stress that the people who fall off the register most rapidly are those who move. They are closely associated with people who are young, unmarried, students, and often those in private rented accommodation. That is the area on which all these efforts have to focus.
Lord Tyler: My Lords, did my noble friend note that in the debate on Thursday there was unanimous support from all sides of the House for the obligation to register and for a penalty if you do not do so? That strong view was also held by the Electoral Commission, which believes that if the signal is given that registration is no longer an obligation, without a proper penalty, there will be a disastrous fall-off from the register which is already woefully inadequate, as the Minister has already indicated.
Lord Wallace of Saltaire: My Lords, I was well aware of the sentiments expressed on Thursday. The Government are looking at whether the current offence of failing to return the form from the household should be extended to making it an offence for an individual not to register. We would prefer not to extend the offence, but that is a matter for consideration and no doubt for debate in both Houses.
Lord Tomlinson: Does the Minister accept that if any objective observer looked at our system of election registration in the way which we have the pretension of looking at the electoral systems of many other countries, we would find it very difficult to persuade them that the basis of a democratic election, the electoral register, constituted a free and fair election? Would the Minister consider consulting the international body, the Venice Commission, to see how it, on our collective behalf, advises newly emerging democracies to conduct elections using electoral registers that are much more significant than our own?
Lord Wallace of Saltaire: My Lords, the Electoral Commission has conducted a number of studies of international comparisons. I would merely point out that the OSC electoral monitors have criticised Britain for retaining household registration, and thus very strongly supports the move-as do all parties-from household to individual electoral registration.
Lord Wallace of Saltaire: My Lords, I am not sure how highly accurate the Australia system is. People move in Australia, too, particularly in cities, and young people tend to avoid these things. I am not sure that there would be sentiment for compulsory voting as a basis in Britain, but perhaps we will test that as we take the Bill through the House.
Lord Empey: Is the Minister aware that a significant number of women living alone find themselves at risk by going on to the register? They can be targeted in certain circumstances by thieves and robbers. Could there not be a case for having a register where certain people have the ability not to have their address on the published register, but on one that is available to electoral officers in a polling station?
Lord Teverson: My Lords, would my noble friend the Minister tell me what progress the Government are making on ensuring that the owners of second homes do not register electorally at those properties?
Lord Wallace of Saltaire: My Lords, I suspect that a great many Members of this House are registered in more than one property. I certainly am since we have lived both in Yorkshire and in London for a very long time. The questions of what is a second home and what is a holiday home very delicate. I am conscious that in south-west England this is a particularly sensitive issue.
Lord Wallace of Saltaire: My Lords, perhaps I may be precise and make it clear that the Government are not removing the offence. The offence is the failure to return the form for the system of household registration. If we were to make it an offence not to register on an individual basis, that would be extending the offence. We will return to this when the Bill is being considered in both Houses.
To ask Her Majesty's Government what measures are in place to inform people of the steps they need to take to ensure their wishes regarding medical treatment at the end of life are respected if they lose capacity.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, the Department of Health makes annual resources available to the NHS and local authorities to implement the Mental Capacity Act. These resources are for them to
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Baroness Greengross: I thank the Minister for that helpful reply. Advance directives are now well established in this country, and it is accepted that patients' wishes in this respect should be followed wherever possible. What systems does the NHS use to record the existence of advance directives and to ensure that they are accessible to doctors as well as available to them so that patients' wishes can be respected? Where patients have made an advance decision in this regard, what evidence does the Department of Health have on the degree of adherence to their end-of-life medical preferences?
Earl Howe: My Lords, the department does not hold information about the degree of adherence to advance decisions, but I can tell the noble Baroness that there are a number of systems available in the NHS that enable patients to record their preferences for care at the end of life and the choices that they would like to make, including saying where, if possible, they want to be when they die. We know that there is widespread use in the NHS of the Preferred Priorities for Care tool that supports decisions about preferences.
We have also supported the piloting of electronic palliative care co-ordination systems to ensure that a person's wishes and preferences for care are taken into account and to improve communication between the professions and organisations. The Information Standards Board is currently considering a proposed standard setting out a core data set to support the implementation of those systems.
Lord Walton of Detchant: My Lords, what evidence do the Government have regarding the number of elderly people in the population who have taken advantage, as I have, of signing an advance directive and lodging it with my general practitioner to specify what forms of treatment I would and would not wish to have if I became incompetent? What is the present position of the legal right of an individual to specify while competent a proxy who could fulfil a similar role if the individual in turn became incompetent?
Earl Howe: Unfortunately, my Lords, we do not hold information about how many advance decisions have been made out or pursued; those statistics are not collected centrally. However, I am aware that lasting powers of attorney, which the noble Lord will know came in under the Mental Capacity Act, are growing in popularity and number. The numbers are rising, although I do not have those statistics in my brief. We are encouraged by the fact that people are now aware that they can delegate to a loved one-a family friend or whoever-to take decisions in their best interests should they lose capacity later on.
Baroness Bakewell: Given that people on the whole now know that they have a right to decide when treatment can be withdrawn, and to ask for that to
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Earl Howe: My Lords, the end-of-life care strategy that we are pursuing, published by the previous Government, highlighted the need for a cultural shift in attitude and behaviour related to end-of-life care within the health and social care workforce. The noble Baroness is quite right that this is an issue. In partnership with the national end-of-life care programme, we have taken forward a number of initiatives to develop the workforce's understanding. We have commissioned the development of an e-learning package, which is turning out to be popular, that includes advance care planning and communication skills. Core competences and principles for end-of-life care have been developed, and a number of pilots have been taken forward in that area. A document called Talking About End of Life Care: Right Conversations, Right People, Right Time has been published and was completed early last year. There are a number of initiatives in this area.
Lord Carlile of Berriew: Does my noble friend agree that the new NHS commissioning arrangements are such that they give an opportunity for advance directives to be collected and collated in a coherent way by general practitioners? Will he also confirm that, whatever advance directives are given, the need to provide comfort to patients remains a duty on clinicians?
Lord Singh of Wimbledon: My Lords, in considering better enhanced provision for end-of-life care for those who have lost capacity, will the Minister note that our opinions and attitudes change with the perspective of time? A young boy may consider that upon reaching the age of 60 or 70, life would not be worth living. I think that a 60 year-old-and most of us here-would differ from that opinion. It is very important that advance directives-living wills-should be considered and should be important. However, they should be tempered with proper questioning and proper care.
Earl Howe: I agree fully with the noble Lord. Advance care planning is not a one-time issue, it is an ongoing process. It requires regular reviews of a patient's wishes and assessments of their needs. Support, training and education for staff in understanding that, and taking forward care planning, are being made available through the end-of-life care strategy. People's wishes and needs change throughout life, and that is to be expected.
Following the remarks made in the Chamber last Wednesday, I thought that it might be helpful to say something about the new arrangements in the Peers' car park. As noble Lords are aware, on 29 November the Administration and Works Committee agreed that there should be a three-month trial of new access arrangements in the Peers' car park. The new arrangements were designed to improve vehicle security measures, and it had been my intention that the Administration and Works Committee should review the trial at the end of the three months.
However, I have heard the concerns of noble Lords about the new arrangements, and have therefore asked Black Rod to produce an interim report for the committee to consider at its next meeting on 7 February. Black Rod is recording a variety of data on vehicles using Black Rod's Garden Entrance and entering the Peers' car park at different times of the day, and is keeping a log of concerns raised by Members, so I would encourage Members to contact Black Rod directly about any concerns that they might have. The information gathered will be presented to the Administration and Works Committee on 7 February so that the committee can consider whether to proceed with the trial, and whether, if it does continue, any modification should be made. Following this, I will report back to the House.
Finally, I would like to echo the remarks made by the Leader of the House last week, that the Floor of the House is not the appropriate place to discuss security matters. For this reason I do not propose to take any questions at this stage.
"(a) they are not specifically excluded under Schedule 1, and"
Lord Beecham: My Lords, perhaps the noble Baroness should be aware that domestic matters will come later. I have, if not by my bedside at least on my bookshelf, the splendid volume The Rule of Law by the late and most distinguished Lord Bingham. I was struck by one quotation in that book from the chapter on dispute resolution, in which the author made a case with compelling clarity. He stated:
"Legal aid is a service which the modern state owes to its citizens as a matter of principle. It is part of the protection of the citizen's individuality which, in our modern conception of the relationship between the citizen and the State, can be claimed by those citizens who are too weak to protect themselves. Just as the
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Lord Justice Jackson, on whose report the Government rely heavily for much of the Bill, particularly Parts 1 and 2, was implicitly very supportive of that definition. He was certainly very clear that the scope of and eligibility for legal aid should not be reduced.
The Bill seeks, in effect, to turn on their head some provisions of the Access to Justice Act 1999, particularly those parts to do with the availability of legal aid, which commanded all-party support. The Access to Justice Act indicated which services the Community Legal Service would not provide and Section 4(2) of that Act provided that legal assistance would be available in all other areas. This Bill seeks to reverse that position and make legal aid provision a matter of exception rather than of course. It is that aspect that these amendments address. Their effect would be to reverse the way that the Government are putting matters. Instead of listing only matters that would be eligible for legal aid, they exclude everything except those matters that are contained within the clause.
There will be a further debate, which my noble friend Lord Bach will initiate, about the procedures to change how the clause we are currently debating might be amended if it stands. However, to fix at a particular point in time an exclusive list of areas of law that should be eligible for legal aid is profoundly mistaken. After all, the law, like society itself, is not static. When I qualified as a solicitor 44 years ago, there were whole areas of law that are now justiciable and part of everyday life which were not recognised at all. There was effectively nothing in the way of equality legislation or legislation affecting discrimination or disability. There was little, if anything, explicitly around the human rights or environmental agendas. Employment law was effectively in its infancy. I well remember the Redundancy Payments Act 1965 and, for a time, giving lectures on what was then developing as employment law. In all these areas, legal assistance, legal advice and legal aid ultimately came to be provided.
We cannot say at this point that similar situations will not arise in future and that there will not be similar changes in the law which should give rise to a right to legal aid provision. The presumption that the Bill makes is that legal aid is not to be available. We on this side submit that that is the wrong presumption. The presumption should be that legal aid should be made available unless it is decided, for reasons of economy or other reasons, to exempt particular matters. That has happened in the past under the previous Government and I have no doubt that there will be occasions when it might be justifiable in the future. However, I submit that the Bill is antithetical to that very clear call, cited with such approval by Lord Bingham, for legal aid and access to justice to be available to all in significant areas of public policy and every-day life. I beg to move.
The Minister of State, Ministry of Justice (Lord McNally): My Lords, Amendment 21 would have the effect of removing Part 1, Schedule 1 and bringing within the scope of legal aid, civil legal services available for all categories of law except those excluded in Parts 2 and 3. Broadly speaking, these amendments seek to reinstate the approach to the scope of civil legal aid under the Access to Justice Act 1999-I think that the noble Lord, Lord Beecham, readily acknowledged that-which provided that most categories were in scope of funding except for those limited matters set out in Schedule 2. As noble Lords will appreciate, this would significantly impact on the savings and fundamentally defeats the object of the reforms. We have never hidden the fact that the aim of these reforms is not just to save public expenditure, given the position with the public finances, but to encourage alternatives to a legal settlement of disputes, not least through mediation. My right honourable friend the Lord Chancellor is attempting to reverse the trend on the part of many in our society over the past 20 years to see litigation-and tax-funded litigation, at that-as the first option, and we have gone about this in a way that moves away from the 1999 Act.
The Government have undertaken a comprehensive review of legal aid, have published impact and equality assessments and received nearly 5,000 responses. We have taken into account the importance of the issue, the litigant's ability to present their own case, including their vulnerability, the availability of alternative sources of funding, and the availability of other routes to resolution. We have never hidden the fact that this is a change from the 1999 Act, but one which retains access to justice while coming to terms with economic reality. We have prioritised funding so that civil legal services as set out in Part 1 of Schedule 1 will be available in the highest priority cases; for example, where a person's life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or where children may be taken into care. I therefore urge the noble Lord to withdraw the amendment.
Lord Beecham: With all respect to the Minister, that is not a very satisfactory reply. In the first place, to suggest that the whole purpose of these changes is to avoid litigation as the first option mistakes the nature of the system. It is not only legal aid and representation that will disappear under these provisions but legal advice and assistance, which often prevent cases going to court. In many cases such measures avoid what I and many observers fear will happen; namely, a significant increase in litigants in person. That is likely to lead to considerable delays, the clogging up of the courts, will be inefficient and, for that matter, costly. The noble Lord airily cited the 5,000 responses received to the consultation paper. He did not tell us how many of those responses supported the thrust of the consultation paper. The suggestion is that about 90 per cent of respondents were very much opposed to the proposals.
In any event, there is another issue. The Government are in effect tying their hands and those of their successors on what might ultimately be thought to be desirable to be brought within scope. That will now
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This matter goes to the heart of the Bill, along with the next amendments to be moved by my noble friend. In the circumstances, I will not push this to a vote at this stage, and I beg leave to withdraw the amendment.
Lord Faulks: My Lords, the amendment is in my name and that of the noble Lord, Lord Pannick, and others. The noble Lord, Lord Pannick, asked me to give the House his apologies for his unavailability today. The amendment concerns Clause 8(2), which gives the Lord Chancellor the power to modify Part 1 of Schedule 1 so as to omit services from the scope of legal aid and assistance. I have considerable concerns about that power.
First, this allows for still further reductions in the scope of legal aid by means of delegated legislation. Your Lordships' House is currently debating the scope of legal aid. For example, we are shortly to consider the withdrawal of legal aid for clinical negligence. The power would allow the Lord Chancellor to remove areas from the scope of legal aid without proper debate on the Floor of the House. There should surely be the opportunity for such debate if the Lord Chancellor is inclined to restrict in future the scope of legal aid.
Furthermore, although the Lord Chancellor can remove legal aid from the scope in areas he thinks appropriate, he is not given the concomitant power to restore legal aid. There are two circumstances in which he or his successor might want to do that. The first is if there was an improvement in the economy. The cuts in legal aid are, as the Minister has repeatedly said, needed as a result of the Government's overall strategy. Should matters improve, there should be an opportunity for the Lord Chancellor to restore legal aid within the terms of the Bill.
There is another reason. However well planned the cuts are-I know that much criticism is made, particularly by the party opposite, of the lack of an impact assessment-it is difficult to be absolutely confident about the effect. For example, I do not think that the party opposite had any idea of the extent of the take-up of conditional fees when it introduced changes in the Access to Justice Act.
I suggest, further, that the uncertainty about the effect of legal aid was acknowledged by the Government themselves in last year's Community Legal Service (Funding) Amendment Order 2011. The Explanatory Memorandum stated that,
should this materialise. The Lord Chancellor should be able to respond in a like manner should there be some egregious examples of market shortfall or the establishment of legal aid deserts. Your Lordships' Constitution Committee said in paragraph 20 of its report that if the Lord Chancellor is to have the power to take away by delegated legislation, he must also have the power to provide.
The amendment is intended not to be destructive but to improve the Bill so that, within the constraints considered necessary by the Government, there should none the less be a proper reflection of the principles of access to justice. This amendment and others in the group should help to achieve this. I beg to move.
Baroness Butler-Sloss: My Lords, I have put my name to Amendments 23 and 27, which are very much on the same lines as the amendment by the noble Lord, Lord Faulks. I find it absolutely astonishing that the Government should, in Clause 8, have an arrangement whereby they can delete legal aid but they cannot bring it back. It is particularly astonishing because a number of judges who know what they are talking about-two Supreme Court judges who have been judges in the Family Division and the present president of the Family Division-all say that this is a false economy. I very well understand that it is absolutely necessary to cut the legal aid bill. However, if the Government cut it in the wrong way, as I suggest they are doing and as I shall say in the debate on later amendments, they cannot put it back if it requires primary legislation.
As the noble Lord, Lord Faulks, has already said, the whole purpose of these amendments is not to destroy the Bill but to allow the Government, or indeed a subsequent Government, a degree of flexibility so that they do not have to use primary legislation to achieve their purpose. Therefore, I very much support all the amendments in this group.
Lord Goodhart: My Lords, I entirely agree with what has been said by the noble Lord, Lord Faulks, and the noble and learned Baroness, Lady Butler-Sloss. At present, as has already been pointed out, the Bill authorises the Lord Chancellor to omit the services under Schedule 1 but it does not permit him to extend his powers by adding to the services in Schedule 1. Any extension of the power would therefore require primary legislation. By contrast, the deletion of existing services would, under Clause 132(5), require only the affirmative procedure, which is quicker, simpler and cheaper than primary legislation.
From long service on the Delegated Powers Committee, I am satisfied that it would be acceptable to use the affirmative procedure to use Clause 8(2) to delete
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Therefore, if we are to go ahead with the Government's proposal, it is essential to add to it the requirement that the Government accept that in the future, when it is possible on economic grounds to do so, existing provisions can be added and not just deleted by the affirmative procedure in both Houses.
Baroness Mallalieu: My Lords, I wonder what on earth could, in fact, be a valid reason for objecting to the spirit of the amendments in this group, in particular the one proposed by the noble Lord, Lord Faulks. If, as I fear, some parts of the Bill remain unchanged by amendment and legal aid is withdrawn from some areas, it is almost certain that it will be shown in due course that legal of aid was essential for the smooth running of our benefits systems, our legal system and our society. I suspect that there will be a public sense of unfairness when the extent of the proposed cuts is more widely known. I suspect that at that stage there may need to be, as others have already said, some rapid amendment to the existing system.
Who knows whether our economy may once again prosper? Further money may be available to spend, not just on more lavish opening ceremonies for the Olympics, royal yachts or high-speed railways but on the needs of people who are poor and disadvantaged. It is surely not beyond the bounds of possibility, as history has often shown, that a new field of law will develop rapidly and that legal aid will need to be extended to a different category that has not been anticipated to require it. Flexibility, as others have said, so that further primary legislation, which is costly and time consuming and inevitably involves considerable delay, can be avoided, ought surely to be embraced by the Minister with enthusiasm. I look forward to seeing it in a moment.
Lord Thomas of Gresford: My Lords, the problem for many lawyers is that we so often look into the past. Common lawyers in particular try to piece together what has happened before. Consequently, we tend always to look for evidence to support our interpretation of events. I certainly share that problem, but I have also had some experience of running an independent local radio company. During that time I realised the great difference between businesspeople and lawyers. Businesspeople have to take decisions about the future, and they can do that only on limited information.
In this instance, the Government have had to take a decision; it has been forced upon them. To adopt a phrase first used by the noble Lord, Lord Elystan-Morgan,
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This is an instance of that. Some of the prognostications that we have heard from the lawyers around this place-and there have been a lot of "mays" and "what is likely to happen" and so on from lawyers-might happen in the future, in which case the provision of legal aid will have to change. The changes might be positive and legal aid granted more widely. It is therefore essential that the Lord Chancellor has the power to add back into the scope of legal aid matters that prove not to be profitable in the way that the Bill envisages. There are not the alternatives that the Minister speaks of for dealing with various legal issues and the very important question of access to justice. That is why I am speaking to Amendment 25 in my name. This is a very positive way in which the Minister can demonstrate that the Government will be flexible in this area, will listen to the concerns that are voiced in the Chamber and will adapt the Bill accordingly.
Lord Scott of Foscote: My Lords, I support strongly the amendment proposed by the noble Lord, Lord Faulks, and the other amendments in the same spirit. It is important in considering the merits of the amendments that we bear in mind the purpose of a civil justice system. I suggest that a country is not entitled to regard itself as civilised unless it has a proper, workable system for the administration and attainment of civil justice. I spent my professional life working in the civil justice system. Of course, the criminal justice system has its own imperatives, but a civil justice system whereby individuals can obtain remedies or resist attempts to obtain remedies against them is of critical importance if our country is to retain the status that it has earned over many years of being a civilised country in which it is a pleasure to live.
Lord Scott of Foscote: I beg your pardon. That might have sounded like a peroration but I am afraid it was only a beginning. Cutting down on legal aid might be very necessary for cutting the deficit, but it must not be allowed to get to a stage where it imperils the adequacy of the civil justice system.
A plethora of litigants in person is not an ornament to a civil justice system but a reproach. I was a judge for many years, and on many occasions litigants in person appeared before me, sometimes as plaintiffs and sometimes as defendants. It is never a satisfactory means of conducting a trial. Every judge wants to come to the correct conclusion if they can, and every judge must bear in mind that one party is going to lose and must leave the court feeling that he or she has had justice. Where there is a litigant in person, the judge cannot avoid appearing to be on the side of that party.
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It is of very great importance, if the Minister is to have the power to remove areas of eligibility for legal aid or to add areas where there should be legal aid, that both those forms of executive law-making should be associated with the requirement for an affirmative resolution from each House, as the noble Lord, Lord Goodhart, suggested. Without that safeguard, these amendments are essential. If they are not agreed, that safeguard at least should be included.
Baroness Kennedy of The Shaws: My Lords, I apologise for interrupting the noble and learned Lord, Lord Scott. There is no greater crime than for a barrister to interrupt a judge mid-speech, so I am covered in a white shroud as I appear before him.
I, too, support the noble Lord, Lord Faulks, in this amendment, and in the other amendments. They tend to flush out a rather important question: is it the intention that this is a continuation of the erosion of legal aid, and that the idea of turning it back is never to be considered? Are we talking about the withering on the vine of legal aid? If so, you would not have in mind the opportunity of the Lord Chancellor to reinstate legal aid or to put it back in place as a result of evidence of shortcomings. If the intention is simply to reduce legal aid inexorably, of course you would not bother having that bit as part of the powers of the Lord Chancellor.
The piece of law to which I want to speak is that of unintended consequences. We know that it is only in the experience of the absence of legal aid that we will see its impact. I want to reinforce what others have said, that it will be in the sucking of the sweetie that one will be able to work out whether the consequences are so serious that the Lord Chancellor might want to reinstate legal aid or to put it into a place where it had not previously been. I strongly urge the Minister to look again at this and to have that reciprocal part of the power so that it will be possible to put legal aid in place, or to reinstate it where it has been removed.
Lord Carlile of Berriew: Like other noble Lords, I wish to support what has been said by all speakers so far in this short debate. We are talking not merely about reinstatement of legal aid but about adding to legal aid issues that have not yet been considered. In the first debate this afternoon, the noble Lord, Lord Beecham, referred to his experience, which I share. When I and many others in this House started practising the law, there were many things that we had not envisaged that we now take to be absolutely basic rights. For example, equalities legislation, the equality of women and the right to equal pay in the workplace
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The final point is a question to my noble friend the Minister. Why are the Government opposed to addition or reinstatement? The only informed speculation, if I can call it that, which I have heard on the reasons for this provision is that Ministers feel that they would avoid being lobbied by outside interest groups if this were a one-way-only provision. Surely being lobbied is something that we expect and welcome in political life in this country, and Ministers of the Crown and their officials should be robust enough to resist if the lobbying lacks merit. If the Minister is to resist the spirit of the amendments this afternoon, the House would be grateful for a coherent set of reasons why.
Lord Elystan-Morgan: My Lords, I was exhilarated, enthralled and deeply flattered by the reference made by the noble Lord, Lord Thomas, to my existence 50 years ago. It is surprising that he should remember that I was there at all, let alone the hackneyed clichés that I was given to in those days.
I shall speak to this amendment, and to Amendment 23, if I may. Their effect would be to give the lie to the canard, which may well be suspected by many people, that the Government are a liquidator of legal aid. The first part of Schedule 1 is the remnant, remainder and rump of what was once a splendid system created in 1949. I make no apology for reminding the House that in 1949 the financial condition of Britain, having fought and won a dreadful war, at massive expense, was even more parlous than it is today. Yet the Government did exactly that. They sent John Maynard Keynes to the United States to negotiate, on very hard terms, a massive loan that had harsh conditions, the last instalments of which were repaid only some six or seven years ago. That was the situation and it would have been easy for the Government of the day to have said, "Justice is a magnificent thing-it is a noble ideal-but in our weakened condition we simply cannot afford it". They did not say that, to their eternal credit. The first point to be made is that the amendments give the lie to the idea that the present Government are trying to reduce legal aid and that they are a liquidator of everything that legal aid fundamentally represents. That is neither the attitude nor the intention of the Government.
The effect of these amendments would be to give a more balanced view of the situation. It would be absurd-and even more absurd to allow it to be done by secondary legislation-to allow the authorities a power in Clause 8(1) and (2) to further restrict legal aid without considering any possibility on the other side of the balance sheet, as it were, of adding where necessary. That addition might be made if there was a massive change in economic circumstances, which is not likely to occur for some years, or if it were discovered that some of these changes, though proposed in good faith, were so costly to the principles of the administration of justice and access to justice that there had to be a rethink. That would be one condition.
Another condition would be where it had been anticipated that a substantial net saving could be made under a certain heading but it was shown that the consequential costs to other departments were such that either a loss or no saving at all was created. These are real possibilities. I do not criticise the Government for not being able to point out exactly what will happen in any of these matters either in relation to access to justice or-perhaps less importantly, but nevertheless of immense importance-in relation to the savings for the public purse, as that is not possible.
If I may indulge in egotism again, in Committee on Tuesday I put it to the Deputy Leader of the House that the Government's intention was to save £350 million, that that was a gross figure and that from that gross figure there had to be deducted a figure of X. No one in this House or this world can say exactly what X may be-it is certainly not a miniscule figure; it may be massive; it may be no more than substantial, but it is an equation that everyone must bear in mind. The £350 million is a gross figure from which X has to be deducted.
The Deputy Leader of the House maintained that that was not the case. His reply can have validity only if there is no downstream additional cost to be regarded or that cost is miniscule. Neither of those propositions can be correct. It is for those reasons that I ask the Government to bear in mind the necessity of maintaining a balance and an equity in this situation and to agree to these amendments. No one imposes any condition upon the Government-the initiative will lie with them the whole time-but this will give a balance and an equity to the situation which does not exist in the Bill at the moment.
Lord Howarth of Newport: My Lords, should not the governing principle be that every single one of our citizens, regardless of their income or personal resources, should have available to them legal advice and representation should they find themselves in a situation of dispute and where they have a reasonable case to pursue through legal channels? Is that not a fundamental liberal principle? The noble and learned Lord, Lord Scott of Foscote, articulated it very finely and much better than I can, but this has to be our benchmark.
Of course, I recognise that this group of amendments is designed to salvage what can be salvaged and to limit damage. However, we ought to differentiate quite carefully between the purport of the amendments in this group, because they are not all saying the same thing. I support Amendment 24, tabled by my Front Bench, because the effect of it would be that no further areas could be taken out of scope other than by new primary legislation. The way that Parliament deals with secondary legislation does not provide adequate opportunity for debate about very important and contentious matters. Therefore, it would be a proper safeguard that there could be no further attrition of legal aid-we would not take any additional areas out of scope-without Parliament thinking deeply about it, taking care about it and being fully aware of what it is doing.
On the other hand, Amendment 24 would allow areas to be brought back into or added to the scope of legal aid by order. That is acceptable because you are
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Perhaps the Minister will again defend the Government's breach of liberal principle in taking whole areas out of scope of legal aid with the argument that it is imperative to save public expenditure. I noticed that the Lord Chancellor, in that very interesting article he wrote in the Guardian just before Christmas, said that:
However, I understand that the cost of civil legal aid in New Zealand is not significantly higher per head. It is of the same order as it is in England and Wales, and it is in fact in the criminal legal aid area that the New Zealand system is so much more economical-they spend less per head on criminal legal aid but not on civil legal aid. However, although the Government justify what they are doing by reference to the comparison with New Zealand, they have not chosen to seek economies in criminal legal aid, but in civil legal aid. The Government need to examine these figures and, I hope, explain their economic rationale rather more fully than they have so far.
I am sure the Minister has had the opportunity to see the study entitled Unintended Consequences: the Cost of the Government's Legal Aid Reforms by Dr Cookson of King's College, London, in which he examines the possible knock-on effects-the higher spending that may be incurred for other government departments and indeed for the Ministry of Justice-as a result of the polices in this Bill. The Minister has been extremely helpful to the Committee in writing to us very fully to explain why the Government have adopted the policies that this Bill would enact. If the Minister would be kind enough to write to us with a detailed refutation of the arguments that Dr Cookson, a distinguished academic, has put forward in criticism of the Government's case that it will be making a net saving to public expenditure, I am sure that that would be very helpful.
I am very far from saying that the sky should be the limit in terms of what we spend on legal aid. I would entirely agree that where there is waste, it should be taken out. However, the assault should be on waste, not on scope. If the principle is that every citizen should have equal access to the law, then it is not proper for the Government to say, "But if the conflict or dispute that might be litigated is in one particular field, then the citizen is not to have access to the law for a dispute of that kind". It is fine to do all you can strenuously to reduce unnecessary costs, but do not breach the fundamental principle.
I would finally say that while it seems to be almost common ground around the House that it is necessary to reduce the legal aid bill, with respect, it is an absurd
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Lord Phillips of Sudbury: My Lords, I would very briefly reassert the fundamentalism of access to the law. Equality before the law is one of our basic claims. If in fact it does not exist, it damages not only the law and the rule of law but democracy itself.
This group of amendments is interesting. Amendment 22, moved by the noble Lord, Lord Faulks, which leads the group, simply removes subsection (2) of Clause 8, which will mean that any change in the scope of legal aid would have to be by primary legislation. Our amendment, spoken to by my noble friend Lord Thomas of Gresford and to which my name is added, seeks to even things up by saying that not only can the Government omit or change by deletion the scope of legal aid, but can add to it. The third position is that of the noble Lords, Lord Bach and Lord Beecham, who in their amendment reverse the tables, saying that you cannot remove from scope but you can add to it.
I must confess that I would, if the world were a perfect place, prefer the first amendment, Amendment 22, which would require all changes in scope to be by primary legislation. However, living on a pragmatic globe, I suspect that the best we may do is at least to have equality as between diminution of scope and addition to it. Hence Amendment 25, which incidentally is mirrored by Amendment 23, spoken to by the noble and learned Baroness, Lady Butler-Sloss.
I would just add this point, which has not been sufficiently clarified or emphasised. Whether something is in or out of scope is not, in my book, most significantly a question of finance. If we are the most legislated democracy on earth-do not forget that we pass about 14,000 pages of new statute law a year-it behoves us, in this Parliament above every parliament, to ensure that what we do has fairness of application in the real world. Above all, I put it to my noble friend Lord McNally that there has been a unanimity of view from those who have contributed to this debate that, as things stand, the exclusions from scope are going to cut so deep that the consequences will be social and political unless they are reversed speedily. For that reason alone, if I were sitting in the seat of my noble friend, I would want to be able to add back speedily. I promise him that if this Bill goes through as drafted, scandals will arise, which the Government will want to rectify swiftly. Therefore, I hope that the Government will move on this.
Lord Clinton-Davis: As a former Member of the other place and as a Member of this House, I am deeply suspicious of secondary legislation. The onus
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The onus of proof rests fairly and squarely on the Government. In my view, they have not begun to do that. They disregard entirely the essential nature of that duty. In other words, they are saying that it is not important. I think that it is vital that Parliament conducts itself properly and scrutinises legislation where possible. I do not think that we should resort to secondary legislation, except where it is proven to be absolutely essential.
Lord Bach: My Lords, first, I thank my noble friend Lord Howarth in particular for supporting our Amendment 24. Of the alternatives set out so clearly by the noble Lord, Lord Phillips of Sudbury, Amendment 24 is the preferred amendment. But I want to make it absolutely clear from our Front Bench that our real quarrel is with the Bill as drafted. In the mild words of the noble and learned Baroness, Lady Butler-Sloss, it is astonishing to find Clause 8(2) in modern legislation. It goes without saying that we believe that this is a non-party issue. Right around the Committee, it has been suggested that on this the Government have got it seriously wrong. If I am a little harsher on the Government than noble Lords have been so far, it is because this is an essential and very important part of this Bill. It is crucial that the Government move on it, if not at this stage, then later. I very much hope that on this group, the Minister can help us by implying that the Government are thinking of changing their position.
The Bill represents an attack on a number of crucial areas of civil legal aid. If the Government get their way, the whole edifice of social welfare law will be severely damaged, perhaps to destruction. The restrictions on private family law are poorly thought through and the proposed taking out of scope of clinical negligence, which we are to debate shortly, seems more ridiculous as every day passes.
We all agree-we certainly do-that there must be some cuts to legal aid. But there should not be these cuts, and any cuts should not be so fast or so far. I pose again to the Minister a question to which I have had no response up till now: why on earth is all criminal law seemingly off limits? Is there no waste, nothing that could be rationalised, in that area of law which, I remind the Committee, takes well over 50 per cent of the whole legal aid budget? The answer is apparently not, because the Government have announced that there will be no moves on criminal legal aid until 2015 at the earliest. I pose the question again: why?
The present position, as I understand it, is that a government can, to a limited extent-I shall be frank in saying that I am not sure to what extent-alter by order what is in and out of scope; for example, by amending the funding code as felt appropriate. But what
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It is often said, particularly in this House, that the real argument against allowing a provision like this is not for now but for a future government who may not be troubled by the same principles as are supposed to exist in all modern governments of whatever complexion. However-and I hope that this does not sound too harsh-my own reason for not allowing this crude power to omit legal aid to the Government is just as much to do with what I fear is the present Government's careless attitude towards legal aid as with some rogue government in the future.
Right across this Bill, or right across Part 1 at any rate, the cavalier manner in which it is proposed to decimate social welfare law, to remove clinical negligence from scope and to restrict the definition of domestic violence on the one hand and have too wide evidential criteria for it on the other all tend to suggest that, on the importance in our society of the availability of civil legal aid for ordinary citizens to access justice, the Government really do not have the enthusiasm that they should have. I believe that this view is shared by many inside and outside this Committee. How then can it be right to entrust the Government with the new extensive powers that they propose? Legal aid could be further diminished by order, but nothing could be added to it except by primary legislation. Just to state that proposition shows how wrong it is.
No one apart from the noble Lord, Lord Goodhart, has referred to the two important reports that have been published for our benefit. One was from the Delegated Powers and Regulatory Reform Committee, which discussed this issue and came to the following conclusion:
"The Committee has concerns about clause 8(2), and those concerns were not allayed by the explanation in the memorandum that this was merely an updating provision. However, there is precedent for a power of this type to be delegated and subject to affirmative procedure (whether the power is to add or to remove from the Schedule), and on that basis, we do not find it inherently inappropriate. But we draw it to the attention of the House because it is not limited to routine updating and may legitimately be used to make substantial omissions from Schedule 1."
"Under the Bill the Lord Chancellor will have a power to modify Schedule 1 by omitting further services from the scope of civil legal aid (clause 8(2)). Orders made under clause 8(2) will be subject to the affirmative resolution procedure. This provision should be amended to enable the Lord Chancellor not only to omit services from the scope of civil legal aid but also to add services to the scope of civil legal aid."
I do not want to quote from the Government's response to both those committees' reports. Perhaps the only advantage was that of consistency, because the two paragraphs were the same in each case. If noble Lords look at those paragraphs they do not make a convincing case, or indeed any case at all, against the amendments that have been raised in Committee today.
This is another part of the Bill where the Government must move. I very much hope that the Minister will show signs that the Government have listened to the unanimous view of these committees on this matter today.
Lord McNally: My Lords, I thank all noble Lords who have contributed to this debate, and particularly my noble friend Lord Faulks for introducing it. There is a little bit of the political bruiser in me that always wants to take the noble Lord, Lord Bach, full on, particularly when he is in piety mode. He was part of a Government who carried out six reviews of legal aid in its last five years, brought in real cuts, and had an actual manifesto commitment to cut legal aid.
A number of telling points have been made by the contributions today. To clarify a point that my noble friend Lord Faulks asked for, the regulations under Clause 8(2) would be subject to the affirmative procedure in terms of parliamentary scrutiny. However I take full note of the point that the noble and learned Baroness, Lady Butler-Sloss, made, that strong and experienced legal opinion has advised against this one-way street which is built into the Bill. I also take on board-which is why I want to come back to this at the end-the question of primary legislation as against secondary legislation.
I also take note of the advice of the noble Baroness, Lady Mallalieu, about the need for flexibility and future-proofing, which my noble friend Lord Thomas also referred to. The importance, as the noble and learned Lord, Lord Scott, pointed out of the adequacy of the civil justice system, is something that is constantly in our minds in trying to determine our priority, and I take on board the warnings that we have had about the dangers of litigants in person.
The noble Baroness, Lady Kennedy, asked whether the aim was to see legal aid wither on the vine. That is certainly not our intention. Like previous speakers, the noble Baroness argued again the case for having some guard against what she termed the "law of unintended consequences", although the term "sucking on the sweetie" must be some aspect of Scottish law rather than English law. As a non-lawyer, I would not know. However I agree that "sucking on the sweetie" may well be the test of all legislation.
The noble Lord, Lord Elystan-Morgan, cursed with the fluency of the Welsh, talks about the liquidation of legal aid. I remind colleagues, as I have in previous debates, that we are talking about a 17 per cent reduction of present expenditure over the lifetime of this spending review. This is not the liquidation of legal aid. Whatever debates there are about other countries and other systems, I have never seen it challenged that ours is a most generous system of legal aid.
I was pleased that the noble Lord, Lord Howarth, said that he did not believe that the sky was the limit regarding legal aid; it sometimes sounds as if that is what he is saying. Legal aid has never been available at the point of need in the way that was the great aspiration of the National Health Service. Those drawing up the rules of legal aid have had to do just that: draw lines and often make difficult decisions.
My noble friend Lord Phillips argued for what I should describe as the doom scenario. That may be a case that makes the argument for looking again at the clause, although Ministers do not believe that all the terrible things in reports, briefings or speeches in this House are going to take place.
The noble Lord, Lord Clinton-Davis, was suspicious of secondary legislation. Again, that would carry more weight if he had not been a strong supporter over 13 years of a Government who brought forward a whole tsunami of secondary legislation.
Lord McNally: I did hear the noble Lord's speech. I was merely pointing out that as a parliamentarian I, too, have worried about the overreliance on secondary legislation, which is a point that I would concede to him.
There is no doubt that there is great strength of feeling about these amendments. I assure the Committee that the Lord Chancellor has noted the concerns; my noble friend Lord Thomas and others had a meeting with him earlier in the week when they put this case very strongly. With the leave of the House, and I think the noble Lord, Lord Bach, intimated this in his wind-up speech, in the full light of the points made in this debate and by the Delegated Powers Committee and the Select Committee on the Constitution, both of which have been referred to, may the Justice Secretary look at these matters again and give serious consideration to the amendments-not all of which mesh together-so that we can bring back proposals regarding this clause for further debate on Report? Given that assurance that we are taking this matter away in a constructive way, I hope that noble Lords will agree to not to press their amendments today.
Lord Faulks: My Lords, I am very grateful to all noble Lords who have spoken in this debate. It is a matter of happenstance that I am dealing with this amendment. The other amendments are in the same spirit, although to slightly different effect. I do not wish to intrude on the spat between the noble Lords, Lord McNally and Lord Bach. My concern, in this
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I am, however, very grateful for the conciliatory noises made by the noble Lord, Lord McNally, and for his assurance that what has been said in this debate, and what has been said in the various committees that have considered this clause, will be noted by the Lord Chancellor. I very much hope that, when this matter comes back on Report, those concerns can be reflected by the Minister. In that guise, I am happy to withdraw this amendment.
"clinical negligence proceedings" means proceedings which include a claim for damages in respect of clinical negligence;
"clinical negligence" means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);
"expert report" means a report by a person qualified to give expert advice on all or most of the matters that are the subject of the report;
"proceedings" includes any sort of proceedings for resolving disputes (and not just proceedings in court), whether commenced or contemplated."
Lord Lloyd of Berwick: My Lords, we now to come to the first of 60 or so amendments dealing in detail with Schedule 1. It is safe to assume that all of those amendments would be likely, in one way or another, to add to the cost of legal aid. The amendment now before your Lordships is different. It is true that Amendment 28 would add £6 million to the legal aid bill, but, coupled with Amendment 139, to which I shall also be speaking, it will save the taxpayer at least three times that amount, and probably a great deal more.
It is because of that special feature that I wrote to the noble Lord, Lord McNally, on 16 November and asked to see the Lord Chancellor and the Minister in charge of the Bill in the House of Commons. I received a very courteous reply from the noble Lord, Lord McNally, on 1 December, for which I am grateful. It refers to the point which I had raised in some little detail, but, if he will forgive me for saying so, it does
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So what, after all that, is the point? As I suspect your Lordships know all too well, clinical negligence cases are currently funded in two ways: either by legal aid or by conditional fee agreements-CFAs-supplemented in almost every case by "after the event" insurance. The purpose of taking out the "after the event" insurance is, of course, to cover the claimant against an adverse order for costs. The premium is paid by the claimant, as one would expect, but since 2000, when the 1999 Act came into force, the cost of the premium has been recoverable from the defendant-usually, although by no means always, the National Health Service-whether the claimant wins or not. That is the whole point.
It was hoped that in that way the cost of legal aid would be reduced. But of course it has not worked out, as these things seldom do, exactly as intended. The reason is the huge increase in the cost of taking out such insurance. It is now a major element in the cost of bringing clinical negligence proceedings. It is also a cost which, as I have said, currently falls on the National Health Service, one way or the other, and is therefore ultimately borne by the taxpayer.
Therefore, the Government's original intention, as one can well understand, was that the cost of ATE premiums should cease to be recoverable from the National Health Service. That was clear enough; whether one agrees with it perhaps does not matter. However, the Government then listened to representations and decided to make an exception in the case of expert reports. They had a principle but then made an exception. The point was made very clearly by the Minister in the other place, Mr Jonathan Djanogly, when he said:
"One particular aspect of clinical negligence cases is the significant up-front costs involved in obtaining expert reports. Following consultation, the Government are seeking a tightly drawn power in the Bill to allow the recoverability of after-the-event insurance premiums in clinical negligence cases".-[Official Report, Commons, 31/10/11; col. 710.]
"Such reports, which can be expensive, are often necessary in establishing whether there is a case for commencing proceedings, which raises particular issues if recoverability of ATE insurance is abolished. In responding to these concerns, clause 43"-
"provides, by way of exception, for the recoverability of premiums in respect of ATE insurance taken out to cover the cost of expert reports in clinical negligence cases".-[Official Report, Commons, 2/11/11; col. 1027.]
I imagine that we would all agree that, if clinical negligence claims are not to be covered in toto by legal aid, there should at least be legal aid to cover the cost of expert reports, including legal advice, without which a claim for clinical negligence simply cannot get off the ground. I suspect we would all agree with that. The trouble is that the Government have set about achieving that result in the wrong way. You have only to look at
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In the article in the Guardian to which the noble Lord, Lord Howarth, referred, the Lord Chancellor said that it was his ambition to simplify and deregulate civil litigation. We would all say amen to that; nobody could seriously quarrel with it. However, if we look at Clause 45-starting with "unless" at line 29-we find the exception to which the Minister in the other place referred in the passages which I have read out. How is that exception to be achieved? The Lord Chancellor must make regulations concerning all manner of things, including the contents of the policies and the maximum premiums to be charged in any policy. The subject matter to be covered by these regulations takes eight sub-paragraphs and 20 pages of text. One can only imagine what the regulations themselves would look like if the subject matter is as lengthy as that. If the Lord Chancellor wants to simplify and deregulate civil litigation, surely Clause 45 is not the way ahead. It would be far simpler and better to allow legal aid to remain for the very limited purpose of obtaining reports in clinical negligence cases.
However, there is a far graver objection to Clause 45 than that, which is cost, as I mentioned at the outset. The cost of providing legal aid for expert reports is £6 million. That is the one figure on which, happily, everybody seems to be agreed. What, then, is the projected cost of implementing Clause 45? Clearly, one must make some assumptions. In an average case one can assume that the cost of the reports will be £5,000. In a simple case, it will be less; in a difficult case, it will be a great deal more. Let us assume that claimants in general have a 50 per cent chance of success in clinical negligence cases. If the insurer is to break even in the course of a year, it follows that he must charge not less than a £5,000 premium for £5,000 of cover. However, to that he must add 25 per cent for his overhead expenses and profit and 6 per cent to cover the cost of insurance premium tax. Therefore, the minimum premium for £5,000 of cover will be £6,265. We know that in 2010-11, the National Health Service settled some 5,400 cases. If one again assumes that the funding in half those cases was by way of ATE cover, one can work out by a process of simple arithmetic that the cost would have been 2,700 cases times £6,265: that is, £18 million. That is almost exactly three times the legal aid cost of £6 million.
Those figures were given to me by a distinguished solicitor who is familiar with insurance law and practice. However, more importantly, he was one of the small panel of assessors who advised Lord Justice Jackson during the year he spent writing his report. Therefore, there is no reason to doubt his figures, or the figures I have given to your Lordships. Indeed, I am told that
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I do not expect the Minister to be able to comment on these figures in any way but hope that he will provide an answer as soon as he can. For if the figures are correct, they suggest very strongly that the Government are set on the wrong track and that the funding of expert reports should be by way of legal aid and not by way of the complex and expensive procedure under Clause 45. I beg to move.
Lord Wigley: My Lords, I rise to speak to the amendment so comprehensively moved by the noble and learned Lord, Lord Lloyd of Berwick, to which I have added my name. It would go some way towards rectifying the alarming situations that may be faced by individuals who have been disabled due to clinical negligence.
Many people involved in cases arising from clinical negligence by a public authority are among the most destitute. These cases will frequently involve parents or other family members bringing cases against public authorities as a result of traumatic injuries sustained by their children or other relatives. Considering the inequality of arms that inevitably arises, having access to expert reports is vital.
What is perhaps most distressing in cases centring on charges of clinical negligence is that individuals will come up against the state, with its teams of lawyers, during proceedings. Never is an inequality of arms more blatant than in those situations. This is somewhat ironic when we would all agree that the state should have a responsibility to ensure that an individual has the means to hold it to account.
To put this debate into context, there are about 1 million adverse accidents in the NHS every year. About 10,000 of those lead to action being taken against the NHS-in other words, about 1 per cent. These figures gainsay the claim that we live in a compensation culture, at least in this context. People who make these claims may have suffered grievous harm at the hands of a public authority, and they have every right to legal assistance in seeking redress.
What is more, and as the Unintended Consequences: the cost of the Government's Legal Aid Reforms report, published last week by King's College, made clear, charging ahead with these reforms would be economic nonsense, as the noble and learned Lord, Lord Lloyd, said. The report states that the proposed changes surrounding clinical negligence cases will cost the NHS some £28.5 million, which is nearly three times the amount to be saved by the Ministry of Justice-about £10.5 million. The figures may be slightly different but the ratios are the same.
Moreover, the Government have not yet specified how they intend to deal with the problems that will arise if legal aid is withdrawn from these cases. As the
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What is more, under Part 2, after-the-event insurance premiums will no longer be recoverable from defendants, and a number of insurers have said that they will pull out of the ATE market. As the Bar Council once again made clear, it is highly unlikely that ATE insurance will be available for expert reports-hence, victims of negligence will be unable to establish whether their case has merit.
In these proposals, the Government appear to have lost sight of their duty to protect the vulnerable from further harm. Moreover, they have failed to provide a robust alternative to counter the inevitable damage to justice that would ensue if the proposals in the Bill went through unchecked. The Government must retain their responsibility to protect the vulnerable, and I hope that they will listen to the criticisms made in this debate.
Lord Faulks: My Lords, all the amendments in this group are directed towards the retention of legal aid in clinical negligence cases. This is an area in which I have practised as a barrister for the past 20 years or so, acting for both claimants and defendants; I continue to do so.
I should emphasise that in making these few remarks I am not against Part 2, which brings into effect the Jackson reforms. Litigation costs have become wholly out of control, particularly in smaller cases, where legal costs tend to dwarf the sums at issue, and litigation has far too often become concerned about legal fees and the recoverability of insurance premiums rather than what should really be at the centre of the dispute.
However, we should acknowledge that if Part 2 becomes law, difficult cases will be less attractive, as the noble Lord, Lord Wigley, has rightly pointed out. There will be no success fee recoverable, nor ATE premiums, and there is a significant risk that complex but meritorious cases will be uneconomical for legal practices to pursue. The paradigm case which concerns me-and, I dare say, many other noble Lords-is that of a brain-damaged baby. Of course, there are other entirely worthwhile and difficult cases, but such cases are particularly complex and often need many experts to tease out whether there is a case on liability or causation. Without legal aid, individual litigants or solicitors will have to carry investigative costs of many thousands of pounds before, in many cases, deciding that there is no claim to be pursued. There will, however, be quite a number of cases where entirely meritorious claims will simply be unfeasible, so that
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I understand that the Government have acknowledged that there is potential injustice in the removal of legal aid for such cases. What answers have they put forward in what I acknowledge as being a constructive exchange of views in this area? The first is that CFAs should be available. I am unconvinced of that. Availability would be theoretical only. At the very best, some of the largest firms might take on the occasional case on the basis that they could bear the risk of funding it, but no individual will be able to do so. The second answer given is that exceptional funding within the terms of the Bill will be available in such cases. That is on the basis, as I understand it, that funding will be forthcoming in circumstances where there would be a violation of an individual's convention rights if there were to be no legal aid.
I pointed out at Second Reading that clinical negligence cases very rarely involve any human rights violations. To that argument comes the rejoinder that the relevant article of the convention is Article 6-the right to a fair trial-and that if the circumstances are such that Article 6 is violated, exceptional funding will be forthcoming. The problem with that answer seems to me to be that the jurisprudence from Strasbourg concerning the circumstances in which the denial of legal aid or other state support would constitute a violation of Article 6 is considerably lacking in consistency and coherence. I do not see how anyone could advise their client with any confidence that the refusal to provide legal aid would constitute a violation of Article 6. That means that the exceptional funding answer is remarkably insecure. If it is really the case that the refusal to provide legal aid in such cases constitutes a violation of Article 6, I venture to suggest that there may be some difficulty in justifying the declaration of compatibility with the Human Rights Act which has been signed in relation to the Bill.
If there is indeed an intention to provide funding for the sorts of cases that I am discussing, why not place the provision of such funding in the Bill rather than rely on the vagaries of exceptional funding and potential challenges by way of judicial review or otherwise if a determination turns out to deny access to legal aid in such cases? I appreciate that in the other place the Minister, Jonathan Djanogly, made some reassuring remarks in this area, but they went nothing like far enough to inspire the sort of confidence that is needed that these claims can be pursued.
The final answer provided by the Government so far in response to the admitted lacuna is by means of the recoverability of ATE premiums in relation to experts' reports by Clause 45. The noble and learned Lord, Lord Lloyd of Berwick, has very comprehensively decimated that argument. I acknowledge the genuineness of the Government's attempt to provide an answer but it involves an assumption that a market can somehow be created by them legislating. If there is no market, as
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The retention of legal aid for these cases has, unusually, united both the claimants' camp and the defendants' camp. It is understandable, noble Lords might think, that claimants' lawyers would want to preserve legal aid-less so obviously defendants' lawyers. However, the preservation of legal aid provides some discipline on litigation. Lawyers and experts who are involved in a case have to be accredited effectively by a legal aid franchise. Rates are currently determined by the LSC and defendants are not faced with enormous claims for success fees and ATE premiums. If, as may well be the case, some 20 per cent of cerebral palsy cases result in a finding at trial in favour of the claimant, others may have to be abandoned or settled earlier. Then, to add to the point made by the noble and learned Lord, Lord Lloyd, the ATE premium is likely to be vast. I know that the Government are involved in talks with ATE insurers but it is somewhat unfortunate that a provision should be before the House while those provisional talks are still being undertaken.
I very much support the suggestion in the amendment of the noble and learned Lord, Lord Lloyd of Berwick. It is one answer to a potential real injustice. There are other answers, such as the retention of legal aid for children generally in clinical negligence cases, or the retention of legal aid in cases which are of sufficient gravity that they result in a substantial change in individual circumstances. I entirely accept what drives the need to restrict the scope of legal aid but this, I regret to say, is a step too far for me.
Lord Carlile of Berriew: My Lords, my name is one of those that have been put to Amendment 30. I set no particular store by this amendment, save to say that it is one of the attempts to deal with the issue that has been eloquently described by the noble and learned Lord, Lord Lloyd, and by my noble friend Lord Faulks, with whom I agree entirely.
Looking around the Committee this afternoon, I see a dozen or so Members of your Lordships' House who had to deal with constituency surgeries on a regular basis while in another place. The noble Lord, Lord Wigley, who earlier spoke very eloquently, has had the same experience as me of dealing with constituency issues in quite a remote rural part of Wales. Clinical negligence relating to perinatal damage does not choose its location. It is just as likely to arise in rural Montgomeryshire or in rural Caernarvonshire. Indeed, I have certainly seen people in years gone by who have come to a constituency surgery devastated by what they believed had happened to their child while the child was being born in a neighbouring hospital. In the case of Montgomeryshire, this was almost always over the border in England, but that may be beside the point.
The people who come with these problems are often not only overwhelmed by the care of their children, but also by the future they face: the lifetime of having to look after a damaged child to whom of course they are generally entirely devoted and to whom they will give the whole of their life or the child's life-whichever lasts longer. They are often, too, people from poor circumstances. In many cases, they have no experience of dealing with lawyers and are frightened of lawyers. They have read in the newspapers that the medical profession-and I hope I will not offend any of my many friends who are distinguished members of the medical profession-is chronically defensive in its approach to allegations. They will not be aware that the chair of the National Health Service Litigation Authority has made it clear that, in her view, legal aid for clinical negligence should continue because it is a way of ensuring that medical practice is carried out responsibly and with reasonable care.
It may be that in some big cities there are firms of solicitors who would take on cases of this kind pro bono, at least in the first stages, because they can afford to carry that excess. However, that does not apply in the small towns of rural Wales and the shire counties of England. People whose child has been damaged at birth may only know of, let alone know, one solicitor, who may be in a small practice somewhere in their neighbourhood. It is right that people in that situation be able to at least explore bringing legal action to see whether there is a course of action that may be effective in relation to the injury that has occurred to their child. In some cases, if disbursements can be expended on expert evidence, it will be shown that there is a strong case of negligence, and most of those strong cases will be settled in due course-often for very large sums of money.
The proposals in the Bill run the risk of depriving parents in that situation of the remedy which they will discover only if they and their solicitors are allowed to spend the money to obtain expert reports as early as possible. There are amendments which suggest that there should be co-operation over expert reports and that other measures should be taken to limit the costs. I applaud those proposals. I suggest to the Minister that the Government include, in any concessions that in my judgment they will be bound to make in due course on this subject of perinatal injury to children, ways of ensuring that money is not wasted on a multiplicity of expert reports, but that the right reports are obtained as early as possible. In my judgment, the case for legal aid at the early stage of potential perinatal damage claims is absolutely unanswerable. The Government would be seen to have lost their human face if they refused to amend the legislation to reflect those concerns.
I say to the Minister, however, that perinatal negligence is not the only area in which were legal aid to be removed great injustice would be caused. One can think of endless examples of poor negligent treatment in hospital which result in devastating injuries: the loss of limbs, the loss of eyes, brain damage, and so on. They fall into the same broad category as the perhaps emotive example of perinatal injury. I therefore suggest to Ministers that they should consider permitting legal aid to continue in cases-I do not say that this
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ATE insurance and CFAs have their place, which may be in some of the types of cases I referred to-but not right at the beginning. As the noble and learned Lord, Lord Lloyd, said clearly, the cost of insurance premiums for even quite small cases is out of proportion to the claim. Potential claimants dealing with severe injuries that occurred in a clinical setting may not be able even to contemplate the prospect of whatever element of cost they might face through the insurance system. It does not provide an answer to all cases.
I urge my noble friend to answer sympathetically the huge burden of representations that have been made by those who have knowledge and experience of conducting these cases or experiencing their consequences directly. They make an overwhelming case.
Lord Phillips of Sudbury: My Lords, my name is on Amendment 30A, along with that of my noble friend Lord Faulks, who spoke clearly and persuasively to it, and that of the noble and learned Lord, Lord Woolf, who apologises for his inability to be here today. He sent me a note in which he rather pithily justified the contents of the amendment-which, it has to be said, is more modest than the one so eloquently moved by the noble and learned Lord, Lord Lloyd, at the start of the debate.
These are two great virtues. Even those in this Committee who have had nothing to do with clinical negligence claims-I congratulate them because these cases are grisly affairs and perhaps the most unsatisfactory and anguish-making aspect of litigation-will know that the expert's report is absolutely crucial to everything to do with the case. It currently determines whether you get legal aid, and, as the noble and learned Lord, Lord Woolf, said, in future if the reform goes through it will determine whether you get effective coverage under a conditional fee agreement.
I will give the vivid example of a case notified to me by Emma Braithwaite, a solicitor with the National Health Service Wales Shared Services Partnership. Noble Lords may not know that Wales is way ahead of us in trying to find a via media between conflicting issues in clinical negligence cases. Amendment 99A attempts to address the general picture. This particular case was finalised by the payment of damages by the NHS of £4,500. The costs, which NHS Wales had to pay, were £95,897. Roughly half the amount-£44,000-went on legal fees. The case was conducted under the conditional fee system. The balance was mainly experts' fees.
The case was always small; it was never a case in which large damages would ever be contemplated.
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Baroness Turner of Camden: My Lords, I support Amendment 28. I have received a number of briefing letters from all sorts of organisations in connection with this Bill. One of the most frequent issues is clinical negligence, which the Government propose to remove from the scope of legal aid entirely. A few cases may fall within the exceptional funding test, but that could have massive impacts on some of the most serious cases of clinical negligence, particularly those involving very badly injured children. I understand that significant numbers of parents already receive support from legal aid around clinical negligence on behalf of their children.
The Government's stated intention, however, is that those cases should be brought on a conditional fee-the no-win no-fee basis. That is not the right way in which to handle such cases, as they often need extensive medical reports, running into thousands of pounds, just to establish whether there is a case. They often have to be held in abeyance to try to assess the long-term consequences for a child. In those circumstances, I am advised that it is not commercially practical to run such cases on a no-win no-fee basis. That is the view of organisations that have made representations, such as the Bar Council and the Law Society.
The Government's proposed solution of allowing the recovery of insurance premiums related to the costs of disbursements has been widely criticised as not being terribly workable. I also understand that the Government claim that up to 100 per cent of some types of legal aid proceedings will be brought back into legal aid by means of the exceptional funding test. However, the test is deliberately narrowly drawn and its legal and practical implications remain completely unknown.
I support Amendment 28 because it spells out in detail exactly what is meant by clinical negligence proceedings. It seems to me that the Government should take this issue very seriously, particularly in view of the representations that have been made right across the board from all kinds of organisations that really know what they are talking about because they are involved in the day-to-day application of the law in this area. Will the Government please consider what they are proposing with regard to clinical negligence? In my view, it is highly unpopular with organisations that know what they are talking about and with the many people who have had experience of trying to raise issues on behalf of injured children, particularly those injured as a result of clinical negligence.
Lord Goodhart: My Lords, the speech of the noble and learned Lord, Lord Lloyd, at the beginning of the debate was both thorough and persuasive. There is nothing that I wish-or would be able-to add to the basis of his arguments. It is widely believed, and I am
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Baroness Eaton: My Lords, I shall speak to my Amendment 36A, which deals with the position of children in medical negligence cases. I am not a lawyer and so I speak with some trepidation, having heard so many noble Lords who are experts in the field of legal matters.
The proposals to remove clinical negligence entirely from the scope of legal aid will have an enormous impact on the most serious cases of clinical negligence, especially where catastrophic injuries to children have occurred. A freedom of information request to the Ministry of Justice revealed that in 2009-10, 870 medical negligence cases in the name of children were supported by legal aid. Under the proposals in this Bill, 640 of those cases would no longer be supported by legal aid. Whenever I have raised this as an issue, I have been told-as have many Members-that the Government's view is that these matters can be dealt with through conditional fee arrangements. We have heard from my noble friends Lord Faulks and Lord Carlile, the noble Lord, Lord Wigley, and the noble and learned Lord, Lord Lloyd of Berwick, about the complications and why this is likely not to provide a satisfactory response.
Cases that are brought for children are often very long-sometimes complicated matters can last six or seven years-and cases that are not quite so complicated can still last for 34 months and longer. This is a terrible situation for families and parents to consider and contend with. Of the £17 million medical negligence cases funded by legal aid, less than a quarter are children's cases. I understand that the majority of these involve perinatal injuries. These are particularly difficult cases and success is very uncertain.
When we are talking about the technicalities of legal aid and all that is involved in it, we should remember that clinical negligence cases affect not only the child in question but the parents and the whole family. Having a child myself who was wrongly diagnosed with a psychosomatic illness, which was in fact a very virulent form of bone and tissue cancer, I understand something of the trauma felt by such families. We did not proceed to litigation as the stress of doing so was, we felt, too great for us to cope with. We were an emotionally strong family in the fortunate position of being both strong for each other and able to afford the additional costs that occur to families in such situations. Others are not always so lucky. For families with a number of other children needing parental attention, the difficulty for parents to retain their employment can be a problem. I have seen many situations where the stress on families of looking after such children is so high that it has brought about a breakdown between parents.
The process of litigation with the support of legal aid is traumatic enough, but for a child to be denied that right must add hugely to the burden on the child
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I also do not believe in wasting public money or spending it unwisely. As we have heard today, independent research on behalf of the Law Society has found that the knock-on effect of the proposals in this Bill for legal aid in clinical negligence cases will cost almost three times the Ministry of Justice-predicted savings. I hope the Minister will be able to reassure your Lordships that this issue will be reconsidered and that the Ministry of Justice will produce a financial impact assessment so that decisions will be based on sound information.
Representations on this issue have come from many sources: the Law Society, firms of solicitors practising in this area, and the National Health Service Litigation Authority. I have received-as have many noble Lords, no doubt-a letter from a firm of solicitors called Withy King, which raises two particular issues. It asks:
I apologise to the noble and learned Lord, Lord Lloyd of Berwick, for being absent for part of his speech. He may have addressed these issues himself-I do not know. I had to make an urgent phone call so I apologise. There is no doubt that the issues raised by Withy King are complex, but they are essential. Therefore, I hope that the Minister will focus his attention on the points it has raised, which arise out of professional experience, and that is most important.
Baroness Finlay of Llandaff: My Lords, I have my name to Amendment 36B, as does my noble friend Lady Grey-Thompson, who has sent a message to apologise that she has unfortunately been delayed, despite making every effort to get here for the opening of this debate. I hope the Minister will reflect on all the comments that have come from around the House. We have heard some very eloquent speeches packed with information. The real problem here is: what are the unintended consequences of this change and who is going to be harmed by it?
One problem is that those who stand to lose the most in clinical negligence are indeed those harmed at birth, and children, because they are unable to be advocates for themselves, and their parents are often in more financially straitened circumstances than others. In Wales we have a disproportionate number of people who are at a lower income level and have therefore been eligible for legal aid. Therefore, we have instigated a system called Putting Things Right, which has already
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However, the problem for patients in general is that they entrust themselves to the NHS and they expect to receive care. When things go wrong, this may be because medicine is shades of grey, but when there is clinical negligence there really is the need for some support-not in terms of redress, because you cannot undo what has gone wrong-but to help people cope. But the problem is that they are also dependent on the NHS itself for their ongoing support and care, which puts them in a different situation from those harmed by others generally, who can avoid contact with the system that has harmed them.
Some things that go wrong are catastrophically awful, and are the result of a series of errors rather than something which can be pinned on one person. I would concur with the comments made by the noble Lord, Lord Carlile, that clinicians generally are not quick enough to reflect on where things have gone wrong, to take action and to be open enough about it. Introducing change is a really slow process, but the lessons that have been learnt are a really important way of driving up standards.
The problem with taking clinical negligence out of scope is that it will mean that some of those with the greatest need will not have any access to any form of recompense for what has gone wrong. In addition, some of those who have less reason to pursue a claim may be tempted to do so, because the conditional fee arrangements will mean that any solicitor can effectively have a go without the safeguard and quality control currently afforded by the restriction of legal aid franchises, meaning that currently a solicitor has to be a specialist. If a solicitor is not specialised enough, they may fail to investigate adequately. The other problem is that by being underrepresented, those who really need it may not get the compensation that should rightfully come to them.
The problem in terms of patient safety and avoidable errors has to be addressed when looking at changing a system like this. The cost savings have already been somewhat debunked as the costs are being transferred from one ministry to another. I would urge the Minister to listen to the NHS Litigation Authority in England and the Shared Services Partnership in Wales, which want clinical negligence kept in scope for legal aid. The plea to take it out has not come from anywhere within the NHS, and I hope that he will reflect carefully on the unintended consequences that have been addressed in this debate.
Baroness Mallalieu: My Lords, a number of noble Lords have spoken who have experience both of the legal and the medical sides of such cases. I am not one of them-it is outside the scope of my field of practice-but I am conscious that this debate on clinical negligence has produced some very powerful arguments, and more very powerful arguments are likely to be produced in the debates on Schedule 1 which are to follow it.
Noble Lords clearly will be arguing what I imagine will be described as special pleading for a number of deserving areas. After clinical negligence I know we are moving on, among other arguments, to those in relation to children, the disabled, disabled children, victims of domestic violence, victims of human trafficking, those who are in need of a guiding hand through the labyrinth of our welfare system, and those whose cases involve complex issues of law which often-indeed almost always-require expertise to present them fairly. Those are just some of the areas to follow. So my sympathy for the Minister, in listening to this particular debate, is great. However, it seems that the amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick, is the very least that could be conceded. I am not by any means sure that it goes far enough, for the reasons which I will come to in a moment, and which the noble Lord, Lord Faulks, set out very clearly.
The Minister will have a difficult time at the end of the debates on these particular additions-as parts of the House will seek to make them-to Schedule 1. He could just stop his ears and refuse to concede on anything, and if he does I suspect that he will leave civil legal aid in tatters, and leave the civil justice system almost wholly to the well-off-to those who can afford to pay. He could pick one or two of the special cases-perhaps clinical negligence, which is very strong, or some of the others, about which we are about to hear. He could pick cases to concede on the basis of who shouts the loudest. He could pick cases that have the strongest or most numerous advocates in debate, those that are likely to attract a bad press for the Government, those that are likely to command public sympathy or-perhaps even more likely-those whose advocates manage to twist his arm most severely between Committee and Report stages in this House.
I respectfully suggest that the Minister should look first at just how much will in reality-particularly in the light of the King's College research-be saved by each one of these proposals. As the noble Baroness, Lady Eaton, said, in some cases it seems that the gain simply is not worth the candle and that legal aid is ultimately the cheapest option and should remain, albeit with the careful scrutiny suggested by the noble Lord, Lord Phillips of Sudbury, for areas where money could clearly be saved.
Once the Minister has done that and has looked at each of the special areas to see whether the financial argument stands up, surely he must look at those remaining areas to see whether alternative access to justice could be maintained by other means-by mediation; by some form of alternative dispute resolution; or, in clinical negligence cases, by CFAs. We have heard from people closely involved in that area who say that those means will not be available in relation to clinical negligence.
Having done that examination, I am sure that the Minister will find areas where, in his own mind, he has a very real doubt about whether a satisfactory alternative exists and whether he is, by persevering with the Bill in its present form, going to leave people to make their own arrangements without financial help, expert guidance or advocacy and where the result is that the consequences
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I am quite sure that neither he nor the Lord Chancellor would wish to do any of that. When he comes to examine fairly each of the arguments on this aspect and the ones to follow, I hope that he will be open minded in his approach to what is to be done. As I understand it, fairness is the principle that our Prime Minister has said all the cuts which the Government propose are to accord. I cannot believe that that means that civil justice should henceforth be the prerogative of those with means. Unless the Minister, whose judgment I respect and admire, is personally satisfied in each case that an adequate alternative provision is available to such people, I hope that he will take the matter back to his department, take out a red pen where necessary and put his foot down.
Lord Newton of Braintree: My Lords, I rise in the hope of commanding your Lordships' attention for two reasons. First, my name is on one of the amendments in this group in the name of my noble friend Lady Eaton. Secondly, since I was unable to be here last week, I want the Front Bench to know that I am back. I have listened with care to the speeches that have been made, and obviously I express my support in particular for the arguments on children's clinical negligence which were raised by my noble friend Lady Eaton. I also want to say to my noble friends that when they come across an amendment with the names Newton and Tebbit on it, they are in trouble. I am sorry that my noble friend is evidently not able to be here today. We are friends but no one who knows us both will think that we always come from the same perspective. Here, we are united.
I need not repeat the points that have been made in debate, not least the very important points made by a number of my noble friends, including my noble friends Lord Faulks and Lord Carlile and-not to minimise any other speeches-the very constructive remarks just made by the noble Baroness, Lady Mallalieu. I share the view that this is one of those areas where it is highly likely not only that the game is not worth the candle but that the costs to other departments will be greater than any savings to the Ministry of Justice. That simply cannot be a sensible way to approach the problem of the deficit as a whole.
Without rehearsing all these arguments again, I hope that I am right in detecting in the air today a move away from what my noble friend Lord Carlile memorably described at an earlier stage as "irritated intransigence" from the other end of the building, and that we will get a constructive approach. We have certainly heard a lot of constructive speeches; I think that they deserve-if I may say so to my noble friends on the Front Bench-a constructive response. Leaving aside the Newton-Tebbit point, if I were them and looked at the totality of the names on the amendments in this group, I would decide, if I may coin a phrase, that concession was the better part of valour.
Lord Howarth of Newport: My Lords, the noble Lord, Lord Carlile, was right to draw attention to the unwillingness of members of the medical profession
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In the interests of being realistic, I should like to pick up a point made by the noble Lord, Lord Phillips of Sudbury, à propos his Amendment 30A, in which he favours the appointment by the NHS Litigation Authority of a single expert witness who would produce a report. We can see the attractions of this in the interests of economy, but if there is mistrust between the claimant and defendant, as there so very often unfortunately is, I wonder how much confidence claimants will have in such reports commissioned by the defendant, the NHS Litigation Authority. That is particularly so if the expert witness appointed by the NHSLA finds that there was no negligence, which may indeed be correct, but can we expect the claimant to accept that that is so?
We all agree that it is unthinkable that legal remedy should not be available for victims of clinical negligence, but I believe, as do others far more authoritative than I, that this is a field in which legal aid must be retained. For example, if you are looking to solve part of the problem by disbursement-only ATE policies, it appears that they are simply not commercially viable. I am advised that, based on an ATE insurer's real figures, for the average cover of £2,000 needed for preliminary investigations-which does not include the high investigation costs of cases such as catastrophic birth injuries-the premium would need to be of the order of £11,000. So it simply will not work. The noble and learned Lord, Lord Lloyd of Berwick, was right to put it to us that this, at minimum, is an area in which legal aid must be preserved.
If the Government's proposal to remove ATE recoverability were to be accepted, there would be an increase in the number of unscreened cases, because ATE insurers are pretty risk averse and pretty sceptical. For very good business reasons they do not want to see unviable cases going through. They are therefore part of the mechanism, part of the system, that enables the bad cases, the weak cases, to be screened out. I understand the NHSLA shares that view.
"Ironically, whilst a so-called perceived 'compensation culture' (which does not actually exist currently when it comes to healthcare) is said to be one of the drivers for reform, the proposed changes will do more to promote the unsavoury aspects of a 'compensation culture' than deter them. For example relinquishing the degree of quality control afforded by the legal aid system for clinical
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Lord Howarth of Newport: I am second to none in my admiration, indeed my gratitude, for AVMA, which helped me and my family at a very difficult stage of our lives. I am deeply appreciative of them. If the list of expert witnesses was to be maintained both by the NHSLA and by AVMA, rationally speaking that is a list that should command confidence. None the less, in the emotionally fraught circumstances of a dispute, particularly where a baby has been damaged at birth or where some other catastrophic injury has taken place, it is asking a lot to expect people to trust witnesses and reports that are to be commissioned-the noble Lord's amendment would require that-by the NHSLA.
Lord Thomas of Gresford: My Lords, I hope the Government do not think that this debate is special pleading, as the noble Baroness, Lady Mallalieu, feared. There are a number of reasons for that. First, clinical negligence-at the moment, exceptionally in personal injury cases-already attracts legal aid. It is currently within scope. Secondly, there are considerable difficulties in proving clinical negligence. When a car accident happens, almost anyone, given proper evidence, can determine who is responsible. Clinical negligence is a very different field. It is very difficult to prove causation. If you can prove causation-that the condition of the claimant has been caused by the clinician concerned-you then have a further hurdle to surmount: whether that clinician has exercised the proper standards of care as known at the time.
I vividly remember a case in which I was involved where it was established that the arachnoiditis was caused by an injection into the spinal cord by a clinician. Arachnoiditis affects the limbs of a person and causes considerable paralysis. We could establish causation, but by the standards of the time it could not be shown that the injection was negligent.
The third matter that I draw to the Committee's attention was referred to by the noble Baroness, Lady Finlay-that there is currently quality control in the provision of legal aid in clinical negligence cases. There are panels provided by the Law Society or Action for Victims of Medical Accidents, and it is only to solicitors who are on those panels that legal aid certificates will be granted. That ensures that there is a proper approach to the issues that arise in clinical negligence cases, and a proper conduct of those cases. For all those reasons, this is not special pleading;
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I would like the Government to consider at what level legal aid can be granted. The noble Lord, Lord Faulks, and my noble friend Lord Carlile referred to the possibility that legal aid should be granted in serious cases that have an impact upon the lives of people. For example, if a case is worth only £4,500, which has been referred to, that may not be one in which public money should be involved-certainly not to the extent of £95,000. However, if, as so often happens, the lives of people and members of their families are altered for good, surely a humane society should provide legal aid to cover the cost of litigation in those circumstances?
Lord Beecham: My Lords, this has been a very thoughtful debate, and that owes much to the fact that so many of those who have participated have experience, either legal or medical, of cases of this kind. They are certainly among the most difficult that either clinicians or lawyers have to deal with. The noble Lord, Lord Wigley, referred to the rather alarming statistic that 10 per cent of National Health Service patients in any year suffer from clinical negligence. That ought to concern all of us, especially those with responsibility for the health service.
However, it is also right to point out that this does not give rise to a spate of litigation. In view of the numbers of people who must suffer from clinical negligence, the fact that only around 10,000 or 11,000 cases a year receive legal advice, and of those only about 3,500 proceed to receive legal aid for representation, completely contradicts the assumption that there is a compensation culture-certainly in this area of law and, many of us would argue, generally. There is no compensation culture. However, it is a measure of the scale of the need for representation that of the successful legal aid cases-some 1,500 cases adjudicated in, I think, 2009-10-the average period during which these cases were pursued was as long as 55 months. That might partly be a reflection of the complexity of the evidence, or partly of the fact that you cannot really settle a case until the prognosis becomes clearer, until a client's needs are defined, particularly in the case of children who suffer perinatal injuries or other forms of clinical negligence. Obviously their future lives cannot be predicted with any certainty at too early a stage. However, it also owes something, as the noble Lord, Lord Thomas, pointed out, to the reluctance of authorities-the NHS bodies and, I suppose, private bodies-to admit liability.
Lord Faulks: My Lords, would the noble Lord confirm that one of the causes of delays is that in complicated cases-we have been concerned with perinatal injuries-there are a number of different experts who have to report? One expert is not enough; you have an obstetrician and you may have a paediatric neurologist, a neonatologist, a neuroradiologist, a midwife and possibly even a geneticist. Trying to make sure that all those experts bring their expertise to bear at the same time and co-ordinate can itself be a reason for delay and therefore for the complexity of these cases.
Lord Beecham: My Lords, that is right. In addition to that issue, which goes to matters of causation and, potentially, liability, there is also a range of experts whose evidence is needed in determining the future needs of the patient in terms of care, education and support. The point is to underline that these are, necessarily, often complex cases, and they need careful investigation and support before they can be either settled or adjudicated.
The Ministry of Justice has estimated the savings from its proposals at some £10 million. That figure will not go far towards matching Mr Gove's suggestion of a new royal yacht as a timely gift to Her Majesty the Queen to celebrate the Diamond Jubilee and it occurs to me that the £250 million allocated by Mr Pickles for weekly waste collection would cover the sum in question for 25 years, but all that is beside the point. The reality is that the cost to the NHS will be considerably greater than £10 million. The recent King's College report that some noble Lords have referred to suggested that a figure of £28 million would be the cost to the NHS of the Government's proposals. That is surely something that none of us wishes to see. It would be caused by the availability of success fees where hitherto legal aid cases have not attracted such fees, and by meeting the cost of "after the event" insurance-again assuming, as a number of your Lordships have questioned, the availability of ATE. If ATE were not available then of course even more injustice would be done because it would be impossible to bring cases. But there must be a real question about the likely existence of a market for ATE insurance. Furthermore, under the Government's proposals, there would be the 10 per cent increase in general damages. All of that clocks up to a figure substantially more than what would be saved.
In addition to the financial aspect, there is the real impact on people who require assistance. The King's College report also indicated that there would be a reduction of 75 per cent in legal help and 65 per cent in legal representation from the admittedly not very large number of cases that are actually brought. That is a significant reduction. Although the noble Lord, Lord McNally, is not replying to this debate, he threw out the figure of a 17 per cent reduction in legal aid expenditure in discussing a previous amendment. However, the cut in civil legal aid generally would be 30 per cent, not 17 per cent. The Government propose saving some £285 million out of something like £900 million or £1 billion. Even the figure of 30 per cent looks modest, though, in relation to the cut that would be inflicted on a number of people who would be entitled to legal aid and representation in this most difficult area of law.
The effect of what is being proposed here is another example of cost-shunting on to other government departments. I have a Question for Written Answer about whether consultations have taken place with other departments by the Ministry of Justice about the impact of the proposals in the Bill on their budgets and whether that has been agreed. In due course no doubt the noble Lord will reply to that and we will see then what is to happen. We have not ventilated the question of a risk register under this Bill as we have in respect of another and I hope that we do not have to go down that road, but it is clear from the evidence
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It said that the existence of a CFA sometimes means that there is an underlying conflict of interest between solicitor and client, a matter that has been raised and that members of the profession, certainly in your Lordships' House, acknowledge is certainly a potential factor. However, it also referred to a paragraph of the consultation that stated that legal aid has contributed to containing NHS legal costs. The authority pointed out:
"In the absence of implementation of Sir Rupert Jackson's proposals to remove recoverability of uplifts and ATE premiums ... the current proposal will undoubtedly cause NHS legal costs to escalate massively ... Overall, we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria".
The NHS Litigation Authority also made clear, in response to a further question about a possible new scheme for funding individual cases where some provision of legal aid is necessary to meet domestic and international legal obligations-the noble Lord, Lord Faulks, dealt comprehensively with that rather weak argument about the applicability of the European Convention-that it was strongly in favour of retaining legal aid for clinical negligence cases and that, should withdrawal occur, it had doubts about the operation of a scheme that would cover high-value obstetric cases in particular, the very cases that the Committee has discussed at some length today. It asked:
"For example, would this scheme only cover cases of the most severe brain damage, or would it also extend to claims for moderate brain damage, shoulder dystocia or to children whose mental faculties are spared but who have serious physical disabilities?".
There is a strong sense that the Government's present position does not find favour in the Committee or, I suspect, more widely in your Lordships' House. A number of amendments seek to address that issue. We would support Amendment 30, spoken to by the noble Lord, Lord Thomas. It emphasises the need for specialists to be members of panels and their evidence would be
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