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(a) the Social Security Contributions and Benefits Act 1992;
(b) the Jobseekers Act 1995;
(c) the State Pension Credit Act 2002;
(d) the Tax Credits Act 2002;
(e) the Welfare Reform Act 2007;
(f) the Welfare Reform Act 2012; or
(g) any other enactment relating to social security.
(a) independent advice or assistance for an appeal to a second-tier tribunal; and
(b) independent advice, assistance and representation at a higher court of such a decision."
Lord Lloyd of Berwick: My Lords, we come to the first of a group of amendments dealing with clinical negligence. The noble Lord, Lord Phillips of Sudbury, has asked that his Amendment 101A be degrouped, and I ask the same in respect of my Amendment 137. Amendment 15, in the name of my noble friend Lady Grey-Thompson, should cover clinical negligence as a whole. My amendment covers only the cost of expert reports, which, as one noble Lord said in Committee, is the very least that should be covered by legal aid. If my amendment succeeds, it will not in any way pre-empt Amendment 15. If that amendment then succeeds, as I hope it will, then my amendment will lapse at Third Reading.
The difference between this amendment and many that have been debated in Committee-and, indeed, so far on Report-is that it will actually save money. The question is this: what is the best way of funding expert reports in clinical negligence cases? Unlike the previous amendment, that question is not likely to give rise to any great emotion. The method proposed by the Government in Clause 45 would cost between £16.8 million and £25 million. The cost of doing exactly the same under legal aid would be between £6.3 million and £6.9 million. If those figures are correct, as I believe them to be, that in itself should be enough to commend the amendment to the Minister.
I will come back to justify those figures a little later, but first I need to say a little about the background. As I am sure noble Lords know, clinical negligence claims are funded in two ways: legal aid or conditional fee agreements supplemented, in a majority of cases, by "after the event" insurance, the purpose of such insurance being to protect the plaintiff against an adverse order for costs. Under the current law, the premium charged by ATE insurers is recoverable from the defendants, usually the National Health Service, even if the plaintiff loses. That system was introduced by Section 29 of the Access to Justice Act 1999.
"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"-
If we will not cover clinical negligence as a whole, as my noble friend Lady Grey-Thompson would wish, we all agree that at the very least we should cover in one way or another the cost of expert reports. To that extent, Mr Djanogly was absolutely right. The trouble is that he has chosen the wrong way to set about it.
the Government's objective. It is easy to see why he used such language. One has only to look at new subsections (2) to (4) in Clause 45. They require yet more regulations to be made by the Lord Chancellor, at the very time when we are trying to reduce the burden of regulations in civil litigation. The regulations are bound to be complex. If the maximum of the relevant part of the premium, as it is called, is too high, the regulations will not achieve their objective. On the other hand, if it is set too low the insurers are sure to find one way or another around it. It is surely much better, and certainly much simpler, to cover the cost of expert reports by the well worn path of legal aid.
I find it difficult to see why the Government have chosen not only the most complicated way of achieving their objective but the most expensive, which brings me back to the figures. In Committee, I put forward a simple calculation on instructions, as lawyers say. I took £5,000 as the average cost of reports in clinical negligence cases. If you assume that the plaintiff has a 50:50 chance of success, the insurer must charge at least £5,000 if he is to break even. To that he must add something to cover his overheads and profit. The figure that is usually taken for that purpose is 25 per cent, so the premium will not be less than £6,250. If you then assume that ATE insurance was used in half the cases settled by the National Health Service in 2010-11, you simply multiply £6,250 by 2,700 and get a figure of £16.9 million paid out by the NHS. It is as simple as that. Compare that to the £6.3 million to £6.9 million spent on achieving the same result by legal aid.
In an e-mail sent on 1 March, the Government accept that the cost of Clause 45 will be £23.7 million if you accept, as one surely must, that the mark-up will not be less than 25 per cent. However, they say that the £6 million cost of legal aid does not take full account of the cost of taking that route. They say that that cost should be £17.5 million, not £6.3 million. However, even on their figures of £17.5 million and £23.7 million, the cost of Clause 45 will exceed that of legal aid by £6.2 million, which I would hardly regard as "relatively small" or "marginal"-the words used by the Government to describe that difference.
However, in truth, the saving is much greater than that to which the government figures point because the figure of £17.5 million that the Government have put forward is erroneous. It includes the cost of expert reports in successful cases as well as unsuccessful ones. The cost in successful cases is recorded by the Legal Aid Fund but is not-this is the vital point-paid by it. If you exclude successful cases from the figure of £17.5 million given by the Government, you come right back to the figure of £6.3 million, which is the figure that I have given all along. On that view, the saving is not what is conceded to be a saving by the Government, but one of £10.6 million. These figures were contained in an e-mail that was sent to the Government on 2 March, which has not, as far as I know, been answered. I beg to move.
Baroness Grey-Thompson: My Lords, I will speak to Amendment 15, which is in my name and in the
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The Government have so far argued vigorously that many cases would be funded by the proposed exceptional funding mechanism and that it was not necessary to guarantee this by retaining them in scope. While it is an improvement to have the situation clarified and legal aid guaranteed for at least this small band of cases, that is, in effect, all that the Government have provided-clarification and a guarantee of what was already on the table.
I am pleased that the Government have moved forward on the retention of obstetric cases in scope, as opposed to relying on the exceptional funding route. This is very positive. In its statement announcing the change of approach, the Ministry of Justice said:
This safety net is the same one that we were told meant that there was no need to retain even the obstetric cases in scope for legal aid because exceptional funding would take care of them. It is perhaps logical to conclude that exceptional funding is no more of an adequate safety net for other highly complex and deserving cases than it was for obstetric cases. Just about every clinical negligence case is complex, which is why, over time, successive Governments have agreed that clinical negligence needs to be kept in scope for legal aid. Not only would taking most clinical negligence cases out of scope result in higher costs to the taxpayer overall, but those costs will still be there but pushed somewhere else. Even more worrying, many people will be denied access to justice.
The independent report by King's College London identified that the unintended consequences of taking clinical negligence out of scope for legal aid would be almost three times the projected saving for the Ministry of Justice budget-costs of £28.5 million set against a "saving" of £10.5 million. These clinical negligence cases which are not in scope for legal aid will in future be able to take their cases forward either through no-win no-fee agreements or with the benefit of exceptional funding. Under the new system, even if an expert report deems a claim to be valid, there is no guarantee that the claimant will receive representation under a conditional fee arrangement. "After the event" insurance is expensive, if, indeed, it is possible to obtain it. I do not believe that exceptional funding is a sufficient safeguard.
If the Minister revisits the responses to the consultation on legal aid, he will find that the vast majority of lawyers involved in clinical negligence cases say that they will not be able to take on many of these cases under the new arrangements. The noble and learned Lord, Lord Lloyd, cited Lord Justice Jackson, who said that the most expensive and inefficient mechanism
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Amendment 31 would allow legal aid for all children who are victims of clinical negligence and not just some children, which, unfortunately, is the current position of my Government. I have both personal and professional experience of these cases as a mother and a former leader of a metropolitan district council. I would like to tell noble Lords something of my experiences. When my eight year-old boy was diagnosed with a psychosomatic illness, my husband and I went through the worst time trying to persuade doctors that something was seriously wrong. Eventually, the diagnosis was found to be faulty and we discovered that our son was in fact suffering from a very virulent form of bone and tissue cancer. Even though we had a very strong clinical negligence case, my husband and I decided not to pursue it because it would be too stressful and we had the resources to support my son. However, not every family is in this privileged position, and I met many through those dark times, and since, who needed to make a claim so that their families could survive.
I have seen at first hand how compensation for medical negligence allows parents to continue to care for their children in their own homes. It does not make it easy but it does make it possible. I have also seen what happens to parents who do not receive financial compensation. Caring for a child who has been the victim of a medical accident and is severely disabled, sick or injured normally gets progressively more difficult and can frequently result in separation and divorce and depression and other mental health disorders in parents. It can also result in an inability to care for other children in the household and parents losing their jobs, becoming homeless and having to be rehoused in social housing, and with the victim having to be cared for in residential homes away from their family. In other words, everyone ends up suffering-a child who is the victim, the parents and the wider family and the taxpayer. As a councillor, I know that all too frequently the local authority has to pick up the pieces and the financial cost.
The proposals in the Legal Aid, Sentencing and Punishment of Offenders Bill can only make a bad situation worse. The concession proposed by the Government allows legal aid where a baby is the victim of clinical negligence from the period of conception through to eight weeks after his or her due date in the case of neurological injury only. It relates only to babies who have suffered damage to their brain. As I understand it, children with physical disabilities resulting from clinical negligence at birth are not covered, and conditions such as Erb's palsy would not fall into the category of receiving aid. This means that if a full-term baby is the victim of clinical negligence when it is
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I wish to tell noble Lords about Sophie Tyler from Newport. When Sophie was 14 years old, she went into her local hospital for a routine bladder operation. She underwent an epidural, which, sadly, went very wrong. Sophie is now paralysed from the waist down and will always be in a wheelchair for the rest of her life. Sophie is now 17 years old. She took action with the help of legal aid, and three years on she has received a medical insurance payout. This compensation will never make amends for what has happened to Sophie, but it will make it possible for her to live independently with support. In the cases of children, compensation pays for extensions to be built downstairs with bathrooms and bedrooms so that children do not have to be carried upstairs, which is more difficult when they become adults. Compensation pays for the widening of doors to allow wheelchair access and for hoists, electric wheelchairs and other specialist equipment not available on the NHS. It pays for occasional night-time and holiday respite care so that parents can get some much needed sleep and it pays, where possible, for extra tutoring to make up for lost schooling along with additional physiotherapy and holidays. Above all, compensation allows parents to carry on in the knowledge that there is someone who will take care of their child after they themselves die. Believe me, this is what worries parents more than anything else.
I therefore ask noble Lords to support children like Sophie next year and the year after-children who, through no fault of their own, become the victims of medical negligence and need legal aid to pursue their cases. I hope that my noble friend the Minister will concede legal aid for all children and recognise that although the concession proposed by the Government supports children with neurological injury, it does not address the needs of the remaining children who suffer hugely as a result of medical negligence and accident.
I also speak with experience of clinical negligence cases. I practised as a solicitor for some 50 years and on many occasions during that time came across cases which involved clinical negligence. The Government appear to be suggesting that clinical negligence claims should proceed by way of joint expert reports. I think that that is pretty impractical. Medical and other
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Legal aid should be available in all cases of clinical negligence where it appears to the Law Society, or whoever is arbitrating on the issue, to be practical and necessary. The ability to go to joint experts, where it is proved to be absolutely essential, should remain part of our legal process, and lawyers ought to be given the opportunity to do precisely that. It would save rather than expend more money if we were able to embark on such a policy, and that has been proved in practice time and time again. Why are we embarking now upon the totally impractical idea of a single expert?
Lord Cormack: My Lords, I am delighted to follow the noble Lord, Lord Clinton-Davis. We entered another place on the same day in 1970; we have been friends ever since; and I have admired the way in which he has fought against real difficulties and played such a part in your Lordships' House.
I was glad to add my name to the amendment that was so movingly spoken to by my noble friend Lady Eaton. Unlike her and, I suppose, most of your Lordships here, I have not had that personal experience involving a child in my own family. When I heard what she had to say, I felt all the more thankful that my children and grandchildren did not face those problems. However, as a constituency Member of Parliament for 40 years, I came across many sad cases that were similar to her own. They were dissimilar in only one respect, and that the one to which she referred-almost always the parents did not have the means to deal with the problem on their own.
No compensation ever adequately compensates for loss of limb or for any other severe disability. However, when one is dealing with clinical negligence, it is crucial that we treat all children, whatever the problem, in a similar way. My noble friend Lady Eaton made that point with quiet passion, and it was all the more effective for that.
I have a great respect and affection for my noble and learned friend the Minister who will reply to this debate. After the histrionics of the previous debate, I say to him that there cannot be a Member in your Lordships' House who does not have sympathy with a Government who are faced with a pretty dire financial situation and looking carefully to see where they can make savings and cut costs. We all appreciate that and do not need to be lectured on the subject. Equally, however, we in this House all have a duty to try to look at things with a degree of objectivity which is devoid of the acerbity of party politics which so often dominates debates in another place.
In my 15 months in this House the two things that have endeared it to me more than any other place are its collegiate atmosphere and the way that we genuinely respect each others' differences of opinion, even though we may all have deeply held personal political opinions and prejudices. However, we have before us an essentially modest amendment. I know not whether the amendments which the House has just been passed will drive a coach and horses through the Bill. I suspect that they
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I take no delight in not supporting my Government. I was not able to support them on the previous two amendments, and I should very much like a response from my noble and learned friend that will enable me, with a tolerably light heart, to go into the Lobby with him if a Division is called. I very much hope that one will not be called. I hope that he will be able to accept the spirit of Amendment 31, even if he cannot accept the precise wording.
Those of us who have served in politics for a long time-and I saw the noble Lord, Lord Wigley, who I deliberately call my friend, nodding a moment ago-know that it is difficult for Back-Benchers in another place or Peers in this place to devise an amendment that will be absolutely acceptable in the precise terms in which it appears on the Marshalled List. However, I hope that we will have from my noble and learned friend a response that accepts the spirit of this amendment, and the amendments spoken to earlier, so that we can move on without clash and division and underline the fact that all of us are keen that there should be equality and fairness of treatment to everyone in this country. Although this Government, and every Government, have to act within severe constraints-there is nothing new in that-let us hope that we can recognise the Government's dilemma while asking them in turn to recognise that there is within this amendment, so splendidly spoken to by my noble friend Lady Eaton, a real point of principle that deserves a most sympathetic response.
Baroness Turner of Camden: My Lords, when the Bill was first published it led to a great deal of correspondence from all sorts of quarters, including the Bar Council and many other bodies that were deeply involved, because the Government proposed to remove clinical negligence in its entirety from the scope of legal aid. They asserted, as I understand it, that most claimants would receive representation under a conditional fee agreement-that is, from a no-win no-fee lawyer. However, if implemented as drafted, the Government's proposed reforms to civil litigation funding laid out in Part 2 will deny access to justice to all but those with the most clear-cut cases.
Clinical negligence claims raise complex issues of liability. The risks of taking on such cases on a no-win no-fee basis can therefore seem very high indeed, so claimants will find it difficult to find representation. I therefore support what the noble and learned Lord, Lord Lloyd, had to say in support of his amendment, because it provides for obtaining the expert reports that would of course be necessary and says that they should retain legal aid. But, on the other hand, I find myself more in support of the next amendment in the group, Amendment 15, which would provide the cost of legal proceedings in relation to clinical negligence. That is important, and we have heard why from a number of contributions to the debate. I therefore hope that we can persuade the Government that what we are saying in Amendment 15 is sensible and that they will accept it.
Lord Carlile of Berriew: My Lords, I want to give my noble and learned friend the Advocate-General a brief moment of ministerial bliss during this debate-there have not been many so far. I speak to government Amendment 68. My noble friend Lord Faulks and I and others have argued that clinical negligence should be available for severely disabled infants-at least for those who suffered neurological damage, which may of course result in physical damage, and often does, either before birth, at birth or shortly after. It is a great pleasure to see Amendment 68. It has been the result of some negotiation, but I should say that the Government have been very willing negotiators at all times on this issue.
I recognise that there will be understandable disappointment if legal aid is not extended in the same way to all clinical negligence relating to infants, even that which does not involve neurological damage, and disappointment that legal aid is not being automatically scoped into all clinical negligence. Like the noble Lord, Lord Clinton-Davis, I am old enough to have been involved in clinical negligence cases and seen the advantage of legal aid, particularly for those of poor means.
I raise one issue with my noble and learned friend on which I would be very grateful for a specific response. It is about other clinical negligence and exceptionality. Many of us have pored over Clause 9, entitled "Exceptional cases", although if one reads the text of Clause 9, it is ambiguous whether it applies only to exceptional cases or, potentially, to a largish cohort of cases that fall within Clause 9(3)(b)-that it is appropriate to grant legal aid,
a breach of convention or enforceable EU rights. I have in mind where there may be a number of claims of a similar nature-for example, a group of 100 claims arising from the negligent use of a particular drug. One has only to say the word thalidomide to understand how that can arise. I believe that a similar situation could arise in our age, just as it did then.
I would be grateful if the Minister would confirm that, were such a cohort of cases to exist, it would not be excluded from exceptionality by reason of being a cohort or group. If one looks at the decided cases in which the word exceptional or exceptionality has been interpreted by the senior courts, it is generally understood to refer to singular cases. We can envisage a plurality of cases of the kind I described, which may give rise to a risk of a breach of convention or other EU rights.
Lord Howarth of Newport: My Lords, I, too, welcome the concession that the Government propose in Amendment 68, in so far as it goes, to allow legal aid to be available in cases where infants have suffered perinatal injury. As the parent of a child who suffered perinatal injury, I can only welcome it. I simply ask the Minister on what argument of principle he extends legal aid to that group of people but not to others whose lives may be ruined through the experience of clinical negligence.
Lord Wigley: My Lords, I shall speak briefly in support of Amendment 13, proposed by the noble and learned Lord, Lord Lloyd of Berwick, and Amendment 15,
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Having campaigned with the noble Lord, Lord Ashley of Stoke, on the question of thalidomide, many years ago, those comments ring bells. We must ensure that, in drawing up a strict structure which is meant to avoid exceptions, other than those provided for specifically, we do not lose the possibility to secure justice for people who may be, as the noble Lord, Lord Carlile, rightly said, in the same position in this day and age.
It is of course welcome news that the Government have conceded bringing cases involving children who have suffered brain damage at birth back within the scope of legal aid, as provided by Amendment 68. That is a significant concession, and I congratulate those who have worked to secure it. As Peter Walsh, chief executive of Action against Medical Accidents, pointed out, that limited step in the right direction makes the decision to keep all other clinical negligence cases out of scope appear even more irrational. Why a distinction should be made between newborn babies and young children, for example, is rather opaque. The Government have questions to answer on that point.
On costs, during Committee I cited a report by King's College which argued that proposals to remove clinical negligence cases from legal aid will not save the Government money but will, rather, shift the bill to the NHS. The report claimed that the changes would cost the NHS £28.5 million, which is nearly three times the £10.5 million which would be saved by the Ministry of Justice. The noble and learned Lord, Lord Wallace of Tankerness, who was on the government Front Bench at the time, did not address that question in detail. He hid behind the general savings produced by the Bill. I would be very grateful if, in responding to this short debate, he addressed the relationship between the savings and the costs, which were highlighted by the King's College report. That underlines the point on costs made by the noble and learned Lord, Lord Lloyd, in introducing the amendments. We are actually providing for savings.
In Committee, I pointed out that under the proposed reforms contained in Part 2, victims of clinical negligence will not have recourse to the no-win no-fee system-a matter raised by others-as the complexity surrounding those cases will prove too risky for most solicitors to take on. The Bar Council has pointed out that it is very unlikely that "after the event" insurance will still be available for the purpose of obtaining expert reports. It is difficult to see where victims of clinical negligence are meant to turn for support. I strongly urge the Minister to consider expanding the provisions of Amendment 68 so that all genuine cases of negligence have access to justice.
Baroness Mallalieu: My Lords, I intervene very briefly to go back to the first of the speeches on this group, which have contained a number of powerful offerings, the speech of the noble and learned Lord, Lord Lloyd. He was kind enough to write to me and others setting out the figures that he gave in his speech. I found what he had to say deeply disturbing and something that I hope that the Minister will be able to help us with. If the noble and learned Lord, Lord Lloyd, is right, it appears that the Government did not do their figures correctly when the measures were introduced. These cuts, which are clearly very painful, are being advertised to the public and to this House as ones which will save money, but it is abundantly clear that when the figures are done properly-there has been no suggestion yet from the Government that the noble and learned Lord's figures are incorrect-the proposals in Clause 45 will cost the country money. That is the basis on which we are going through this very painful exercise. I want to hear from the Minister how the Government can possibly justify taking that step.
Baroness Masham of Ilton: My Lords, in supporting the amendments, I just want to say that clinical negligence is such an important matter. I am told that one in 10 people can have a problem with clinical negligence. That should not happen. Much more care should be taken in patient safety. If there are cases of negligence, the health authorities have their own lawyers. If there is no legal aid for the patient, it means that there is not a level playing field. After all, it is all taxpayers' money.
Baroness Finlay of Llandaff: My Lords, I sense that the House is getting to the point where this debate needs to draw to a close, so I will not go over the points that I was going to make at length, except to point out that there is a moral case and a financial case for both the first two amendments in the group. The moral case is that people are particularly vulnerable when they are in the hands of clinicians, their vulnerability being the reason that they need a clinical intervention. Therefore, closing down access to justice or compensation when things go awry seems particularly wrong.
I have a further point to make on allowing clinical negligence to come back into scope. The financial arguments, as already laid out by the noble and learned Lord, Lord Lloyd of Berwick, and in the report of King's College London, indicate that on financial grounds alone both these amendments make sense. To repeat the figures given by my noble friend Lord Wigley, the cost to the public purse is estimated to be £28.5 million, as opposed to the £10.5 million that the Ministry of Justice hopes to save by this measure. We have heard a lot about the need to save money.
There could be unintended consequences from this calculation of increased, not decreased, expenditure. The intention behind the Government's amendments is to be welcomed but I fear that there will be complications in, for example, trying to work out the dates of a pregnancy if a scan is not done in the first trimester. Women's periods are notoriously unreliable as a method of establishing dates in a pregnancy, and arguments about whether it is one day or another will make life extremely difficult.
I end by pointing out that in his report Lord Justice Jackson said that of all the proposed cutbacks in legal aid, the removal of legal aid in relation to clinical negligence was the most unfortunate. He went on to state that if-in his view, wrongly-legal aid for clinical negligence was cut, then removing legal aid for expert reports would not make sound sense.
Lord Newton of Braintree: My Lords, I wonder whether I might be allowed to intervene from this Front Bench position without people feeling that I have fallen victim to delusions of grandeur of one kind or another.
I wish to make three points. First, I support the general thrust of the arguments that have been put forward by the noble and learned Lord, Lord Lloyd, the noble Baroness, Lady Grey-Thompson, and my noble friend Lady Eaton. I shall not elaborate but I think that they have made excellent points which need to be considered.
The second is to build on what was said by my noble friend Lord Cormack and, even more so, by the noble Baroness, Lady Mallalieu, about one striking aspect of the speech of the noble and learned Lord, Lord Lloyd, and indeed the note he had sent me. Had I had the temerity to intervene in the winding-up of the previous debate or had I wished to elongate my speech in that debate, I would have said that those of us who were supporting it were not hell-bent on increasing the deficit and raising the debt. The key point is that we just do not believe the Government's figures. No one outside the Government believes that savings are going to be made on the scale that the Government claim, and in many cases we think that the deficit is going to be increased. We now have this concrete example of where the figures are wrong, and I hope that the House will bear that in mind.
Finally, one thing that sticks in my mind from this whole exercise is a seminar at which we heard from someone who had been severely damaged by clinical negligence, along with his wife. Victory in that case had enabled the wife to go on looking after the man and for him to go on having as normal a life as possible in a severely disabled state. I just ask myself how much the state saved in that one case, where the husband and wife would not otherwise have been able to go on in those circumstances. How much had been saved in terms of many years of residential care or much more extensive support from the social services department? In my view, these are the things that have not been factored into some of these calculations, and there are many others. Although not strictly related to this amendment, every child taken into care costs £36,000 a year. These are the costs that have not been factored in. I think that we are owed some better answers than we have had so far, and I hope, without much expectation, that we will get some better answers tonight.
Lord Faulks: My Lords, I take note of the indication from the noble Baroness, Lady Finlay, that the House may have heard enough but I hope that noble Lords will bear with me for a little while. I spoke on this subject at Second Reading and on a previous occasion and I should remind the House that I have spent much
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I remain enthusiastic about legal aid. A well organised legal aid scheme with proper controls over funding, franchising of solicitors to ensure relevant expertise and a rigorous approach to the funding of individual cases is a highly worthwhile aspiration. Unfortunately, we have rarely had a scheme like that. In saying this, I do not wish in any way to denigrate the contribution of the many public-spirited lawyers who practise in the field, but too much has been spent on cases which have failed or were not really worth while even had they succeeded. It is perhaps something of an irony that clinical negligence-latterly, at least-has been a far more effectively funded area of the law than ever before. By "effectively", I do not just mean in terms of the size of the funding; I simply mean the efficiency in the way that specialist lawyers conduct this litigation.
Not all claims have been funded by legal aid. In some there are difficulties of eligibility, and others have preferred to go the route of CFAs. These provide greater flexibility and, of course, greater profit. On the previous occasion, the Minister pointed out that more than 80 per cent of clinical negligence cases are taken under CFAs, so this remains, at least in theory, an option for the future. However, it is of course a much less attractive option. As the noble Baroness, Lady Turner, pointed out, there is no ATE insurance and success fees are limited to 25 per cent of past losses and general damages. This is particularly so with complex cases, where investigative costs are particularly expensive and may ultimately prove irrecoverable if the case fails to get off the ground or fails in the end.
I have not been, as a number of noble Lords will be aware, entirely uncritical of this Bill. In particular, I was anxious to ensure that there was a reiteration in Clause 1 of the fundamental principle of access to justice, and I was concerned that there should be additional steps to underline the independence of the director of legal aid casework. Unfortunately, my views did not coincide with the views of the Government. One reason I felt able to support those amendments was that they did not involve any government expenditure but reflected what I thought were important principles about the justice system.
However, with this group of amendments we are now concerned with areas that involve government expenditure, although quite how much, I accept, is very much open to debate. The financial situation requires there to be cuts and the Government have taken the perfectly reasonable view that the legal aid budget must bear its fair share. I remain somewhat unconvinced by the stance taken by the party opposite, which seems to be that civil legal aid would have been left entirely alone by it and, for the most part, CFAs as they currently are represent a satisfactory situation.
The Government have had to take some hard decisions in cutting back on expenditure on legal aid. Surely we are acknowledging that and are engaged in scrutinising this Bill in an attempt to limit the damage rather than simply pretending that there are limitless funds available for legal aid. Perhaps I may join the noble Lord, Lord
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Other noble Lords have made cogent points about cases which fall outside this government amendment. Why stop at brain-damaged babies? In an ideal world, I would certainly agree. Of course, there are potential anomalies and complex cases involving adults and cases involving children who are still children but are over eight weeks old when a negligent event takes place. All noble Lords who have made these points have a valuable and persuasive argument and many of my professional colleagues would echo their concerns and support the arguments. If a line has to be drawn-it is a big if-is it right to draw the line with brain-damaged babies? I will not be popular with my professional colleagues for saying that perhaps a line has to be drawn somewhere.
Another way of addressing the issue is to ask: is there anything unique or at least very different about these cases? I have probably been involved in almost all the types of cases that have been the subject of the debate in your Lordships' House. Many of them involved great difficulties. Of course, all those cases will be capable of being pursued, but not with legal aid. Why are these brain-damage cases so difficult? The main reason, which may not be wholly appreciated outside the world of medicine, is that most cerebral palsy cases are not the result of obstetric mismanagement or midwifery mismanagement. There has been an enormous amount of research on this which has shown that only a small minority could be so attributed. The popular notion that it is asphyxia followed by brain damage caused by too slow a response from doctors is not usually right.
One of the difficulties in such cases is the necessity to obtain causation experts: neuro-radiologists, paediatric neurologists and neonatologists. Of course, all that costs time and money and involves a great deal of expertise on all sides. Those of us who have been involved in this litigation are often faced, at the end of the investigative process, with turning to parents, who, of course, care passionately about their children and are concerned to do everything they possibly can to help them, to tell them that the case cannot succeed. It is not a pleasurable experience but it is one that acknowledges the difficulty of establishing these cases. Who, among your Lordships, would deny those parents the opportunity of finding out whether they have a case?
That is why, with some reluctance, I acknowledge that there is a very rough dividing line between these and other cases. What are those other cases? Like other noble Lords, I hope that the exceptional-funding route can provide some succour for those difficult cases. Perhaps the Minister will go further and consider some of the amendments more sympathetically than has been the indication so far.
The alternatives put forward by these amendments are various. The amendment brought forward by the noble and learned Lord, Lord Lloyd of Berwick, seems, to my mind, to be almost unanswerable in terms of economics. It would provide some significant help to those cases that fall specifically outside the exception which is the subject of the government amendment. A report may not be enough, but it is certainly something. The other amendments go further and it may be that your Lordships favour them.
Finally, I should mention the amendment in the name of the noble Lord, Lord Phillips of Sudbury, myself and others. I was asked to say something about it at this juncture so I shall very briefly. The amendment deals with the question of a review of clinical negligence. The range of the arguments and the difficulties that have been outlined in the course of this debate show how important it will be to see the effect of any changes brought about by this legislation. In due course, I hope that that will produce a positive response from the Minister.
Lord Thomas of Gresford: My Lords, I am sure that the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Newton, will appreciate the importance of the concessions which the Liberal Democrats have negotiated-namely, that there should be a power in the Lord Chancellor to put areas of law back into scope because they may very well be right. It may be that these alterations will be more expensive than the Government think at this time. I very much welcome Amendment 68 which keeps birth injuries within the scope of legal aid. The reason for being concerned about cases claiming damages for personal injury arising out of medical negligence is that they currently receive legal aid as an exception to the previous Government's removal of legal aid in personal injury cases.
Of course, four out of five claims fail or are withdrawn. Unlike a car accident or a factory accident, it is very difficult to appreciate negligence where negligence happens without the highly specialised and expensive investigation to which my noble friend Lord Faulks has referred. Although I have some experience of medical negligence cases, I defer to his very great experience and expertise. He raises the question, which I think is on everyone's mind: if you make an exception for birth injuries, what about the rest? It does not mean that claimants will be denied access to justice. If at the moment 80 per cent of clinical negligence cases are handled by conditional fee agreements, a greater proportion of these cases will simply be added to that route for funding.
In the course of the reforms that are set out in this Bill, it is essential that one-way cost shifting occurs in relation to cases that are brought under conditional fee agreements. That means that, win or lose, the defendant insurers will pay their own costs. The reason for the huge rise in insurance premiums, to which the noble and learned Lord, Lord Lloyd, referred, is the huge increase in the costs of the defendants. If four out of five claims fail, a claimant is very much without insurance; after-the-event insurance is very much at risk of being ruined by bringing an action. If, as the Government propose, one-way cost shifting is applied in this area, the unsuccessful claimant will have to
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The whole area of medical negligence needs to be looked at. Although we have been talking about high-cost cases, in fact the majority of these cases attract damages of less than £20,000. They are for negligent treatment for minor injuries perhaps. We are not always talking about catastrophic injuries in relation to medical negligence. Therefore, I have been arguing for an NHS redress scheme, such as that which was introduced in Wales within the past two years. The Government have said that they regard that scheme, which deals with cases up to a value of £20,000, as a pilot and, depending on how the scheme goes, will consider introducing it into England.
But the power already exists. The previous Government passed the NHS Redress Act in 2006 and Wales grasped the opportunity, as did Scotland. They grasped the opportunity of introducing a scheme with fixed fees for lawyers and fixed fees for expert reports to satisfy the problem that exists with low-value medical negligence cases. If we could progress that a little further in England, it would do a great deal to relieve the concerns that have been expressed here today.
I hope that my noble and learned friend Lord Wallace will be able to make some favourable noises in relation to an NHS redress scheme. The Opposition could not object: they brought in the Act in 2006, though they never thought that the people of England deserved it being implemented. On the other hand, the people of Wales took a different view. All reports so far on how its scheme is going suggest that it works well, reduces legal fees and provides solutions for people who have been injured. I hope that the Minister will tell us that something along those lines will be considered in this very difficult area.
Baroness Hamwee: My Lords, perhaps I may ask a short supplementary question following the queries made by my noble friend Lord Carlile about Clause 9. I was intending to raise it on a later amendment but will do so now if my noble friend is going to deal with it.
The natural meaning of "exceptional cases" suggests to me something very unusual about either the claim or the claimant. I am troubled that claimants might fall foul by virtue of being part of a cohort. Can the Minister help me with what is meant by "enforceable EU rights", which, along with convention rights, bring one within the exceptional determination provision?
Lord Beecham: My Lords, before I address the amendments, I must correct something that I said in
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The noble Lord, Lord McNally, has in the previous debate, and indeed in virtually every debate, prayed in aid as a rationale for government policy the question of costs. It is not unreasonable that costs and public expenditure should form part of these discussions, but, as we have heard today from the noble and learned Lord, Lord Lloyd, the noble Baroness, Lady Grey-Thompson, and the noble Lord, Lord Wigley, and others, the argument in this case runs the other way. What the Government are proposing would cost the Exchequer, rather than the converse. In any case, we are speaking only of some £10 million, which would have been the saving under the Government's original policy. I welcome so far as it goes the amendment that the Government are proposing. As they are now going some way-though not far enough-towards meeting the case for extending legal aid, that amount of saving would be reduced in any event.
However, it is not just those of us who support the amendments of the noble and learned Lord and of the noble Baronesses, Lady Grey-Thompson and Lady Eaton, who take the point about the cost and the way in which the system would work. No less an authority than the National Health Service Litigation Authority has expressed its considerable reservations about the Government's approach, saying:
"We have serious concerns over the proposal to withdraw legal aid from clinical negligence claims. Whilst we have seen an upsurge of claims brought under Conditional Fee Agreements (CFAs) in recent years, we question whether CFAs are likely to be readily available to fund many of the more serious claims currently brought via legal aid".
Lord Thomas of Gresford: Although the organisation questions, it is hardly saying something that is contrary to what I have said. I have said that if everything went wrong and worst-case scenarios arose, the amendment accepted by the Government, which would permit bringing these matters back into scope, would be extremely important.
Lord Beecham: It would be extremely important if the Government acted on it. We do not know that they will. While the noble Lord claims credit for the amendment, he was not quite so enthusiastic when it was being debated in Committee at the instigation of this side, but that is a little beside the point. The litigation authority states clearly:
Welcome as the government amendment is, they anticipated some discussion about it because they also questioned whether the scheme would cover only cases of the most severe brain damage or whether it would extend also to claims for moderate brain damage and shoulder dystocia, or to children whose mental faculties are spared but who have serious physical disabilities. We know that we are dealing only with a limited number of perinatal cases, as movingly explained by the noble Baroness, Lady Eaton. Again, it would seem that, on balance, the litigation authority, although it welcomes no doubt the progress made so far, would not be content with leaving the situation as it stands.
That is a very important observation. However, there are many other kinds of claim which arise out of different types of clinical negligence and with different effects. While the number of adverse incidents has now risen to 1.15 million, there are some 2,500 clinical negligence claims in what is a called a "serious category". Of those, 12.5 per cent result in death; 17 per cent lead to unnecessary operations or amputations; 8 per cent lead to damages to nerves or senses; and 2.9 per cent lead to cancer. So 50 per cent of six major categories overall are not of the kind that would be covered by the government amendment.
In these circumstances, it is quite clear that a substantial number of people will not be able to access legal aid. Despite the assertions of the noble Lord, Lord Thomas, it must be questioned whether the conditional fee system would be an answer to that and, in particular, whether that would not in itself increase the costs to the National Health Service.
Lord Thomas of Gresford: Perhaps I may point out to the noble Lord, and my noble friend the Minister will confirm this, that I raised the issue of increasing the powers of the Lord Chancellor before Second Reading. If he would like to consult the record, he will see that my amendment, to bring areas back into scope, was tabled on the very first day that amendments could be put down. The amendments put down by the Labour Party were many days after that.
Lord Beecham: My Lords, some nerve damage is being sustained by the noble Lord. Let us, however, concentrate on the issue, which is rather more important than claiming credit for amendments; namely, the future of patients who undergo clinical negligence and who have claims. We have heard much talk about equality of arms in litigation. I fear that what the Sophies of this world may face is more akin to a farewell to arms. That is the danger we face if legal aid is not extended.
There is a hierarchy of amendments before us tonight. Of course I endorse the Government's amendment, as far as it goes. Equally, we support the amendment of the noble and learned Lord, Lord Lloyd. However, for us the best amendment-because it effectively embraces both the others-is that tabled by the noble Baroness,
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The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I think that it is evident to the House that we have had a very important, serious-minded and sensitive debate. I listened to many of the speeches at Second Reading when many of these points were aired, not least on perinatal and neonatal injury. I also responded to the debate in Committee when, again, passion and concern was expressed in all parts of the House.
The debate benefited from noble Lords' experience. My noble friend Lady Eaton referred to her personal and professional experience. My noble friends Lord Faulks and Lord Carlile have professional experience in the legal sphere, as has the noble Lord, Lord Clinton-Davis. While I anticipate that I am not going to be able to bring succour to all those who spoke, I hope that in responding to the debate I may indicate that this is an issue that the Government have treated seriously, and on which they have sought to respond to many concerns expressed in earlier debates. We believe that the provisions that we are putting in place provide a proper means of addressing these important issues.
Concerns were expressed at Second Reading and in Committee about the serious and complex cases involving brain-damaged babies for whom a conditional fee agreement might not be able to be secured, and thus they would need to rely on exceptional funding under Clause 9, which could leave their families in an uncertain position. For that reason, the Government brought forward Amendment 68. I welcome the fact that it was welcomed by the noble Lord, Lord Beecham, on the opposition Front Bench, and by my noble friends Lord Faulks and Lord Thomas of Gresford. My noble friend Lord Carlile said that it was a moment-perhaps a very rare moment-of ministerial bliss this evening; and the noble Lord, Lord Wigley, accepted that it was a significant concession. As I indicated, it was brought forward in recognition of the concerns raised, and to put beyond doubt that legal aid will remain available for babies who suffer brain injury at birth that will lead to a lifetime of care needs.
We recognise that in these cases there are difficulties in obtaining funding through CFAs because of the extent and expense of the investigations required. We stated that we expected to spend about £6 million on legal representation in clinical negligence cases that merited exceptional funding through Clause 9; and we said that we expected a significant proportion of the £6 million to be spent on serious infant brain-damage cases. Given that fact, we decided that it would be appropriate to bring these cases back in scope. We hope that this will provide certainty to families and make the application process more straightforward.
The amendment provides funding for claims for medical negligence causes of brain injury as a result of which a child is severely disabled. I listened to, and understood, the inevitable concerns expressed about where one should draw a line, and I will say something about that. The noble Lord, Lord Howarth, spoke very briefly but with a weight of personal experience,
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Because our intention is to cover birth and pregnancy-related negligence, we have had to draw the line at some point after birth. The amendment refers to the eight-week period because it is in the first few weeks of life that a child is at their most vulnerable. This period is also one in which postnatal medical care is expected to take place. It is also provided for in the guidance from the National Institute for Health and Clinical Excellence entitled Routine Postnatal Care of Women and their Babies. In cases where negligence occurs beyond the eight-week point, there will remain a safety net in the form of the exceptional funding scheme under Clause 9. I will say more about that when I address the amendments tabled by my noble friend Lady Eaton and the noble Baroness, Lady Grey-Thompson. I will address the question of whether the failure to fund would amount to a breach of the individual's rights under the European Convention on Human Rights.
It is important to stress that exceptional funding decisions will necessarily be taken by the director on a case-by-case basis. My noble friend Lord Carlile asked if there could be a multi-party action to satisfy the Clause 9 criteria. He will be among the first to recognise that it is difficult and possibly unwise to speculate about hypothetical cases. However, in principle it would be possible. Each application would be assessed against the criteria, and it may well be appropriate to fund the lead case in a claim if there is a requirement for it to be funded under, for example, Article 6 considerations. It may be the case that other claims could then progress on a CFA basis. The question would turn on the individual case, but there could be a lead case where failure to fund it would amount to a breach.
My noble friend Lady Hamwee asked what was meant by enforceable European Union rights. They are rights to legal aid which might have direct effect in domestic law. An example would be rights enshrined under Article 47 of the European Union Charter of Fundamental Rights, which provides the equivalent of Article 6 protection in cases falling within the scope of European Union law.
Amendment 13, moved by the noble and learned Lord, Lord Lloyd of Berwick, seeks to bring into scope civil legal services for obtaining multiple expert reports in medical negligence cases. He indicated that government Amendment 68 would provide legal aid for cases where the most expensive and extensive medical reports would be required, and that his amendment would cater for the remainder. However, we believe that it would not be limited to the remainder of those
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The amendment would open up legal aid to many cases that are funded by way of CFA, and could mean that lawyers who currently have to carry the no-win no-fee risk to get their success fee could apply for legal aid to cover the expert report in every case where their client is financially eligible, and still get their no-win no-fee success fee in respect of their other legal costs. This is not a fair balance for the taxpayer. It could also result in a significant expansion of the legal aid scheme. The taxpayer should not be required to pay where these cases have already been taken forward and paid for by alternative means. The position would also be limited to those who are financially eligible for legal aid. That would mean that those who are outside that eligibility-which could be many people-would have no assistance in funding expert reports in criminal negligence cases.
I recall that in Committee the noble and learned Lord presented a torrent of figures, and I indicated that we would look at them. I encouraged officials to look at them and I know that there was some engagement, that he met my noble friend Lord McNally and that there were exchanges on these figures. In this situation, we must agree to differ. The Ministry of Justice analysts carefully reviewed the calculations. We sought to explain the Ministry of Justice's calculations. The matter is very technical; I have tried to get my head round both sets of figures.
However, as I indicated, we do not accept the figures that are being put forward. I know that my noble friend Lord Newton, the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Wigley, raised our calculations. I am more than happy to place in the House Library the Ministry of Justice's calculations that show that allowing recoverable ATE insurance premiums for expert reports in clinical negligence cases will incur extra costs to the public purse of between £1 million and £4 million compared with retaining legal aid funding for such reports. We could debate whether they are marginal costs, and I think that in the context of our reforms as a whole they are marginal, but we believe they are justified to ensure that clinical negligence claimants are able to obtain these reports. As has been pointed out, we are taking powers in Clause 45 to be able to control the costs of insurance premiums to defendants, and we will discuss this further with stakeholders in due course.
As I have indicated, financial eligibility for legal aid has become tighter under Governments of all hues over recent years, and I fear that the noble Lord's amendments could restrict assistance to those who are eligible for legal aid. If that were to happen, a large number of people could find that they were unable to obtain the report they needed, even to consider bringing a claim for clinical negligence.
I turn to the amendments tabled by my noble friend Lady Eaton and the noble Baroness, Lady Grey-Thompson. One could not help but listen very carefully and sensitively indeed to the speech by my noble friend Lady Eaton and to the case of Sophie Tyler that she raised. I indicated earlier that the bulk of the £6 million that we had previously thought would go towards exceptional funding would be covered by cases that we believe will now be covered by the Government's amendment. That means that there will still be cases for exceptional funding under Clause 9. It will not simply allow any human rights claim to come into scope but will ensure the protection of an individual's rights to legal aid under the European convention as well as, as my noble friend Lady Hamwee said, the rights to legal aid that are enforceable under European Union law.
In considering whether exceptional funding should be granted in clinical negligence cases, the court will take into account factors that case law and Article 6 indicate as weighing in favour of the provision of public funding in individual cases: namely, the ability of a client to present his or her own case, the complexity of the matter, the importance of the issues at stake and all the relevant circumstances. I hope that that will give assurance that that provision is there for exceptional cases.
As my noble friend Lord Thomas of Gresford pointed out, some 82 per cent of clinical negligence cases today proceed by way of conditional fee agreements. As these are cases of personal injury, those conditional fee agreements are supported by one-way cost shifting. One would hope that that would give some reassurance to those who wish to look at raising actions by way of a conditional fee agreement.
I think my noble friend expressed some concern about whether there would be difficulty in finding a solicitor who might be able to take such a case. No-win no-fee CFAs are a growing form of funding for clinical negligence cases, and legal aid has been a diminishing form of funding. The data show that last year 82 per cent of clinical negligence cases were funded by means other than legal aid, such as CFAs, before-the-event insurance or private funding, so the vast majority of cases are currently not funded by legal aid, and there is ample experience among lawyers of dealing with cases on a non-legal aid basis, as they have to do now in cases where the victim falls outside the relatively low financial eligibility for legal aid.
The noble Lord, Lord Clinton-Davis, mentioned expert reports. We believe that allowing a power to allow recoverability of ATE insurance premiums in respect of expert reports in clinical negligence, coupled with our proposal to encourage better ways of commissioning expert reports, including the use of joint expert reports, will be a further means of trying to address some of the concerns that have been expressed.
Lord Wallace of Tankerness: It is very evident. We want to encourage joint expert reports, but clearly there will be cases when that is not possible because there is a division of opinion. In our debates on
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My noble friend Lord Thomas of Gresford also quite properly drew attention to the fact that while we have quite rightly focused on some of the very serious cases and consequences of clinical negligence, in many cases of clinical negligence the damages could be under £20,000. Your Lordships may be aware that the Government have recently announced the extension of the low-value claims process for personal injury claims. We are working closely with the National Health Service Litigation Authority and claimant lawyer representatives to set up a pilot for dealing with low-value clinical negligence cases. These discussions are ongoing. They will be a valuable way of trying to identify ways in which some of the lower value cases can be dealt with.
My noble friend drew the attention of your Lordships' House to the scheme in Wales under the NHS Redress Act 2006. Clearly that is something we would look at, although I note that it is tied in with a complaints and concerns regime and does not necessarily replace the existing judicial system. Claimants are still free to pursue a claim. I have always thought that it is one of the strengths of devolution that different ways are found in different parts of our United Kingdom to address issues such as this. It is only right that we look at the experience in different parts of the United Kingdom, and if there is something to learn we should be willing to learn it.
I am obliged to refer to government Amendments 26 to 30 and 58 to 67. They are technical in nature. My noble friend Lord McNally has written to all Peers describing their detail, so I do not propose to detain the House further.
We have listened to very strong representations in earlier debates about clinical negligence in the context of perinatal and neonatal cases. We have sought to address it through conditional fee agreements, which are increasingly part of the way in which clinical negligence cases are dealt with, and through the exceptional funding. We are ensuring that there is provision in other cases. As I have indicated, I regret that we have not been able to have a meeting of minds with the noble and learned Lord, Lord Lloyd of Berwick. I will place the Ministry of Justice's calculations in the Library of your Lordships' House. When those who wish to look at them have done the calculations and wish to come back to us, we will seek to give them a response. In these circumstances, I ask the noble and learned Lord to consider withdrawing his amendment.
Lord Lloyd of Berwick: My Lords, I address only my own amendment. It is very limited in scope and is designed to save money. I am very grateful for the support of the noble Lords, Lord Wigley, Lord Newton and Lord Faulks, the noble Baronesses, Lady Mallalieu and Lady Finlay, and other noble Lords. It seems to me that they have demonstrated conclusively that the financial argument in favour of this amendment is
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If the Government are as serious as they keep on saying they are about saving money, they ought to accept this amendment. Even on their own figures, they would save £6.2 million. I wish to test the opinion of the House.
Baroness Grey-Thompson: I am very conscious of the late hour so I do not wish to delay your Lordships' House too much longer. I thank the Minister for his answer but, unfortunately, I am not satisfied with it. I believe that a huge number of disabled people and people in general will be discriminated against. I wish to test the opinion of the House.
Lord Glentoran: My Lords, bicycles and those who ride them have been making the headlines for a few weeks since the Times newspaper started a campaign after one of its employees was badly injured in an accident involving a lorry. I am not out to knock bicycles today-quite the reverse. I believe that they are practical vehicles and the exercise they provide should help to contain obesity, which at home in my province is the most serious medical problem, especially among young people. In short, I support encouraging the use of bicycles.
"The Mayor of London is committed to turning London into a 'cyclised' city where people see cycling as one of the best ways to get about. Cycling, with all its social, environmental, health and financial benefits, has an important role to play in the future of the capital, and the Mayor is working with TfL to deliver a 400% increase in cycling by 2026, compared to 2001 levels, while making cycling safer, more attractive and more convenient ... In conjunction with this growth the Mayor has prioritised improving cyclist
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Most of the media coverage recently has been aimed at motorists and those responsible for road safety. There are undoubtedly issues here, but there are also issues for the cyclists themselves. If bicyclists choose to use the Queen's highway, I suggest that they must learn the rules of the road and obey them. They should familiarise themselves with the Highway Code and obey it. How often do we see bicycles on the pavement, shooting traffic lights and riding too close to lorries and cars?
We need a change of culture among cyclists. We need them to have some form of third-party insurance so that when they run into a pedestrian-me crossing the road from Westminster to the cathedral on my way home-there will be some form of recompense. It should be compulsory by traffic law and health and safety regulations for bicycle riders to wear a minimum of protective clothing such as helmets and an orange or yellow top. They should carry lights and ideally at night wear reflective armbands, helmets and gloves. How many times at night have we been walking in London and not seen a bicycle until it has practically hit us-no protective cover, no fluorescent clothing, no lights, and probably going at 30 or 40 mph?
It will be of little value bringing in the changes that I have suggested and many more if they are not well publicised, understood and most important of all, enforced by the authorities. I ask Parliament and the media to assist in bringing this culture change to the cycling community in the hope that when it is paired up with the capital expenditure proposed by the mayor and the Government it will mean safer roads, safer pavements and a safer time in the city for pedestrians as well as bicyclists.
Lord Haskel: My Lords, as the noble Lord, Lord Glentoran, told us, the way to encourage cycling is to make it safer. One way of making it safer is to provide separate road space for motorists and cyclists. Frequently, however, that is impossible. Cyclists and motorists have to share the road. Certainly the Highway Code should apply to all road users, but in practice that does not always happen. When I was knocked off my bike by a car turning left from the outside lane, the driver's explanation was simply that cars have priority over bikes. That attitude simply discourages cycling by making it less safe.
When I ride on the continent, in any country apart from Portugal and the Republic of Ireland, I feel safer. In all those countries the presumption in law is that if
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Urban design can also change the balance of responsibilities. Have noble Lords been to Exhibition Road in South Kensington recently? It has been converted into a shared walking, cycling and driving area. There is a 20 miles per hour speed limit, and although walkers and cyclists must still give way to motorists, it has become a far more pleasant area, with more space because there is no car parking, there are no traffic islands and traffic is much reduced. I am sure that many people will want their suburban areas changed to shared-use zones of this kind, where the traffic is more strictly controlled, cyclists and pedestrians have more freedom and there is more open space.
The noble Lord, Lord Glentoran, is right: there is a lot of work to be done in rebalancing the legal responsibility of motorists and cyclists on the roads, but all as part of an effort to encourage cycling. What will the Government do about that?
Lord Taverne: My Lords, my preferred forms of transport are sail, bicycles, foot, rail, buses and-lastly- cars. Living in central London, I gave up my car in 1974. We then established our family motto: two wheels good, four wheels bad. That has proved an act of liberation. The advantages are obvious.
First, there is fitness and health, as was pointed out by a number of people in the House of Commons debate, as well as by speakers here tonight. Studies show that regular cyclists live some two years longer than those who do not cycle-that is quite an advantage. Secondly, there is the convenience: you arrive at your destination at a time that you can judge accurately. That is a great advantage. Thirdly, parking-the curse of the motorist-is much easier. I sympathise with Woody Allen, who said, "It is all very well talking about the expanding universe but, if the universe is expanding, why can I never find a parking place?". It is a question, too, of being able to live more freely. There is no question of having to abstain if one goes out to dinner or of making the invidious choice as to whether you or your spouse should cease to imbibe. There is no perpetual worry about cars getting scratched.
Of course it would be a great advantage to life in cities if there were more bicycles. The bicycle is a very green form of transport. It was described by one person as a form of transport that has a built-in gym and can be fuelled on tea and cakes. But it is not only that: one has a different attitude to travelling in London,
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Is there any danger? There is the suggestion that all sorts of action should be taken to lessen the risk to cyclists. Many people are put off by that risk but, in fact, it is greatly exaggerated. In terms of benefits versus of risks, a study by the BMA way back in 1992 showed that for one life-year lost through accidents, 20 life-years are gained through greater fitness. I am not exactly sure what that means but it is impressive. Of course the position is much better now because the more cyclists there are, the lower the proportion of people who are injured. Some calculations show that if cyclists double in numbers, the accident rate per cyclist is reduced by about one-third. In Amsterdam there are no accidents. People do not wear helmets because there is such a large number of cyclists that nobody gets injured. Indeed, they have a rather draconian law that if there is an accident and a motor car, the motor car is to blame under all circumstances.
Viscount Craigavon: My Lords, I speak as a frequent cyclist, and my views are well balanced by also being a motorcyclist and a motorist. I am also a member, and was a long-time officer, of the All-Party Cycling Group, which was largely instrumental in the lobbying and recent debate in Westminster Hall, assisted by the campaign in the Times. I would like to follow rather randomly some of the themes in that debate.
After reading his winding-up speech for the Government in that debate, I believe that we are extremely fortunate to have a Minister such as Mr Norman Baker who is so sympathetic to the cause, as well as his colleague Mr Mike Penning. I hope that he can drag his department some way along the path of enlightenment, as I have always felt that one of the main obstacles from the past in all this has been the ingrained anti-cyclist mindset of the department. We are also extremely fortunate in having the enthusiastic and balanced support of the cyclist Sir George Young as the Leader of another place.
In addressing the balance mentioned in the Question before us, I will not be entirely on one side of the argument, and in my opinion the Question's wording has ignored motorcyclists, who should be near the centre of any balance. As many have said, including the noble Lord, Lord Haskel, a key change required is in the attitude to cyclists of other road users. I can
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Improvements can indeed be made, and the Times manifesto is a good example of practical measures that can very usefully be taken. Almost all the eight points of the manifesto seemed to be supported as far as he could by the Minister Mr Norman Baker in the debate in another place. But on item six of that manifesto, I am more than hesitant. If we want the respect and co-operation of the motorist for cycling, I believe that too wide an introduction of 20 mph zones would be counterproductive, by inducing genuine frustration in law-abiding motorists, especially if too widely introduced. The official campaign is asking for that in all residential areas which do not have cycle lanes. The Government have rightly reduced the bureaucracy and cost of creating such 20 mph zones in the right places; it will be decided more locally. But to advocate their use too widely would be unwise. The proliferation and uncertainty about advance stop lines at traffic lights also sends mixed messages, and causes some frustration. I would hope that the type that one sometimes sees, covering only one of two lanes going in the same direction, could become more common.
The noble Lord, Lord Glentoran, praised the Mayor of London. We should be grateful for the impetus that Boris bikes have given to more widespread use of cycles. I hope that the overall cost can be manageable for the scheme to be maintained over the longer period, and the area in which they are available widened, as originally intended. The Times manifesto encourages copying such a scheme to other places. I hope that such schemes, after initial investment and enthusiasm, can eventually become self-financing.
We at this end of this building seem to be very fortunate to have a new row of such cycles being installed on Abingdon Green, which is where outside broadcasts are often made, showing Big Ben in the background. I hope that encourages more of our colleagues to join the scheme, as it is particularly convenient to our House.
As a motorcyclist, I think that we should also be grateful to the Mayor of London for experimenting with motorcyclists sharing bus lanes. I understand that there has been no detriment to cyclists. The only uncertainty for motorcyclists is that such use of bus lanes is not uniform all over London; that final step has still to be taken.
In the 1950s and 1960s I had a Moulton cycle with such small wheels that I could ride on the pavement. No one ever stopped me, anyway. The explosion in the number of cyclists in London inevitably results in problems for all concerned. I agree with my noble friend that they should have insurance. Licences, obviously, are not feasible, and helmets would be difficult for those who ride only very occasionally.
Good manners and patience are required by all. Having experienced nearly being run down by a cyclist on the pedestrian crossing outside here with the light in my favour, I now always thank cyclists when they stop.
This debate speaks only of motorists and cyclists; there is no mention of pedestrians. Pedestrians may not have legal responsibilities but they are equally affected by all types of transport. As I am 99 per cent a pedestrian, I feel strongly about good manners by all road users. What happens if a pedestrian knocks a cyclist over on a crossing? Does he or she get prosecuted?
Lord Wills: My Lords, I, too, congratulate the noble Lord, Lord Glentoran, on securing this debate on a matter of great concern to millions of people in this country. I echo much of what noble Lords have already said. Rebalancing the responsibilities of road users is clearly important, as noble Lords have argued. We are reminded daily by personal tragedies all over the country of just how vulnerable cyclists are to motorists, and how careless motorists can be of their responsibilities to other road users. I support noble Lords who have called for action in that respect, although as someone who gave up driving in London many years ago I should add that those cyclists who treat roads as their personal property-weaving in between traffic with no regard for queues, ignoring traffic signals and threatening the safety of other road users-make a powerful case for tightening the regulation and penalties for cyclists, alongside the case for protecting them better against motorists.
However, I shall focus on another area, which other noble Lords have mentioned, where rebalancing is necessary: the responsibility of cyclists to pedestrians. To adapt the phrase adapted by the noble Lord, Lord Taverne, "Four wheels bad, two wheels good, two feet better". When I represented North Swindon in the other place, one of the issues raised most frequently in the open meetings that I held regularly was the selfish and reckless behaviour of cyclists towards pedestrians, particularly when they cycled on pavements. The elderly, the disabled and parents of very young children felt particularly vulnerable to such behaviour, and were outraged by the contempt shown to them by those who cycle on pavements meant for pedestrians. This is a growing problem. In the last five years for which figures are available, the number of pedestrians who have been killed or injured by cyclists has increased by two-thirds. Although the overall numbers are not large, the trend is clear. As the Department for Transport has said in answer to a Question that I asked:
"These statistics are based on personal injury road accidents that are reported to the police. It is known that a considerable number of personal injury road accidents are unreported; in particular
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We need to deal with this problem. The fact that cyclists are so often treated with discourtesy and contempt for their safety by motorists is no justification for them to cycle on pavements and treat pedestrians with the same discourtesy and contempt for safety. However, some cyclists, usually younger men-the so-called lycra louts-in my anecdotal experience, seem to believe that the risks they run on the road entitle them to risk the safety of pedestrians on pavements. There is no excuse for this. It is illegal and there is no reason why cyclists who need to cross a pedestrian space should not get off their bikes and wheel them across it.
In response, the Minister may well suggest, as Ministers often do, that this is a matter for the police and local authorities, and so it is. They can be diligent and constructive in addressing this problem and trying to find solutions. In this respect, I pay tribute to Camden councillor Tom Simon and Sergeant Ian Gilks for their efforts in my neighbourhood in London. However, it should not be left to the police and local authorities alone. Central Governments need to ensure that they have the tools they need to do their job.
There is action that the Government can take to mitigate the problem. The noble Lord, Lord Glentoran, gave some very useful pointers in this direction. I hope that the Government will take advantage of his recommendations and take action on them. Also, increasing penalties for cycling on a footway would send a powerful signal, making it clear that space used primarily by pedestrians is not to be treated as a space shared with cyclists. I would be grateful if the Minister could indicate whether officials will explore these options.
Finally and most importantly, training for young people who will shortly become road users, whether as cyclists, motorists or motorcyclists, to make them aware of their responsibilities to all other road users, including pedestrians, would help tackle cycling on pavements and all the wider problems on the roads. Fatalities and serious injuries are caused predominantly by young people, mainly young men. Appropriate early training could help prevent thousands of personal tragedies every year and save the public purse millions of pounds. Therefore, I would be grateful if the Minister would agree to ask officials to explore with colleagues in other departments how such a training scheme could be developed.
Lord Scott of Foscote: My Lords, I, too, welcome the debate that has been secured by the noble Lord, Lord Glentoran. I have to say that I am in substantial disagreement with some of the remarks made by the noble Lord, Lord Wills.
I start by declaring my interest in and knowledge of bicycling in London. I began working in London in the early 1960s. I used to travel in by train from north Buckinghamshire, have a good journey to Euston and then struggle from Euston to Lincoln's Inn, by either Tube or bus, each of which was unpleasant and took much longer than it should. Therefore, I began using a
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The question for the Government, posed by the noble Lord, relates to the responsibilities of cyclists and motorists. Both have responsibilities in private and public law. The private law responsibilities are that cyclists and motorists alike-and, for that matter, pedestrians-owe a duty of care to all other users of the road that they are using. If there is any breach or alleged breach of that duty by a cyclist, or by a motorist or pedestrian, it is a matter for a judge to resolve. The judge can decide whether the duty of care has been broken and, if so, deal with any damages claim that has arisen from the accident. The law does not need rebalancing; it works perfectly well as it is-so much for private law.
There is also public law, which must be observed by motorists and cyclists. There is, I am afraid, no public law that has to be observed by pedestrians in London, although in some cities abroad pedestrians are required not to cross the road except when the light is green in their favour. As far as I know, there is no such law in this country. However, the law applies to motorists and cyclists alike. They must stop at traffic lights, not go up one-way streets or ride on the pavement, and they must obey speed limits, not that a cyclist is in much of a position to break the speed limit, although many may try. The laws apply to them as they do to motorists.
In my opinion the overriding obligations that cyclists owe to everyone else on the roads are twofold. First, cyclists must do their very best never to bump into a car or be bumped by a car. That means keeping eyes and ears open at all times. Secondly, they must get out of the way of pedestrians wherever the pedestrians may be. Whether the pedestrians are legitimately crossing a road or cyclists are on the pavement with the pedestrians, they must get out of the pedestrians' way. Those are the two essentials for cyclists in my opinion. If those two essentials are observed, there ought to be no problem and no rebalancing needed.
The enforcement of the public law is, of course, a matter primarily for the police. The police are very sensible about this. As most of them have ridden bicycles themselves in London in their training periods, they know that there are two particular dangers for cyclists. One is at red lights when the cyclist stops as near to the pavement as may be, a vehicle then draws up next to the cyclist, the light turns green and both cyclists and motorists start off at the same time. As I get older I am becoming more aware of the fact that it is almost impossible to start off from a stationary position without some degree of wobble. That is why cyclists try to get ahead of the line of vehicles which have stopped at the red light. They want to start first so that the motorists can see them. I always do that. It means going a few yards ahead of the red light, but no
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The other danger with which cyclists are presented occurs during the tourist season. Given their experience abroad, foreign tourists naturally expect the traffic to be flowing in the opposite direction from that which applies in this country. Therefore, they step into the road looking to their left for any traffic that is coming instead of looking to their right. If they do that while a cyclist is riding along with a car coming up on one side as well, the cyclist is in a very difficult position. You have to keep your wits about you to avoid banging into these foreign tourists or being banged by the car coming up on your side.
Over the years I have found cycling to and from work in London very enjoyable. One is free of the nuisances of tubes and of buses caught in traffic jams and one is in control of one's own situation. One arrives at work or at home, depending on the direction in which one is going, a little bit sweaty. That is probably a good thing although one needs to put on a clean shirt when arriving at one's destination. I would not like to see any government interference with cycling as it operates at the moment. I see plenty of cyclists every day as I go to and fro from my flat in Camden to, formerly, the Royal Courts of Justice and now to this House. Some cyclists go faster than I would go, and I always rather envy them. However, I deprecate the fact that a number of cyclists now ride their bicycles while wearing ear plugs, which enables them to listen to their choice of music. The two things you need when you are on a bicycle are your sight and your ears, so that you can hear what is coming up behind you and you can see what is in front of you. Ear plugs stop you hearing what is coming up behind you. If there was to be any government interference-
The Earl of Clancarty: My Lords, I thank the noble Lord, Lord Glentoran, for an opportunity to participate in this debate. I am not a traffic expert, or knowledgeable about the legal side. What interests me is the wider perspective of the quality of public urban space. The behaviour of and interaction between all road users ought to be a significant aspect of that quality.
If we were to be concerned foremost with how we conceive the urban environment-and we have always had some idea of what that is-it could be argued that the responsibilities of motorists, cyclists and pedestrians
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I first came across the work of the Dutch traffic engineer Hans Monderman a couple of years ago in Tom Vanderbilt's very readable book, Traffic. Sadly, Monderman died in 2008, but he and others such as Ben Hamilton-Baillie in Britain have been keen to remove the hegemony that motorists still largely occupy within the urban space. Monderman indeed called motorists "guests" within what he termed "the social world", as opposed to the "traffic world" of the motorway. The shared-space movement wishes not only to reduce the level of accidents, but to achieve, as a goal in itself, a closer and more equal relationship between road users by levelling the road surface, including pavements, and removing road markings and signs. Monderman wanted to take out all traffic lights so that all road users could freely negotiate with each other, and so that-this is the important point in terms of this debate-that negotiation becomes the prime responsibility, rather than the need to obey a multitude of externally imposed rules. There are several films on YouTube demonstrating these schemes, including in Drachten in Holland, and Berne in Switzerland. The latter is fascinating to watch because on an urban street with more than 20,000 vehicles a day it is the motorists who give way to the pedestrians.
There have been criticisms of shared space, many of which come from the most vulnerable in society and therefore need to be listened to. However, I agree with those who say that there should be more explanation of the concept itself when schemes are introduced. Shared space is still fundamentally radical. It is against segregation of road users as much as possible, against control, and against aggressive lobbying by all user groups. Apparently, to illustrate his schemes, Hans Monderman would walk backwards into the traffic with his eyes closed-vehicles calmly going around him.
I agree. Monderman talks about "negotiation" and Ben Hamilton-Baillie about "civility", but I think that people will not become courteous simply because they are told to do so. Importantly, people cannot be forced to do so through the courts. It is worth contrasting the fast, heavily signed, overdirected and, in fact, normal urban space around the huge Stokes Croft roundabout in Bristol with any of the new schemes. I think that if that district were to be converted into a shared-space environment, such incidents would not occur. One of the things that the shared-space movement is doing is
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Lord Davies of Oldham: My Lords, I congratulate the noble Lord, Lord Glentoran, on securing this debate and on introducing it in such a clear way. He is of course right to say there are mutual responsibilities because a cyclist and a motorist share some rare space. Transport makes enormous demands upon space in this crowded island, and we all know that our roads are increasingly crowded, particularly in our great cities. Inevitably, a great deal of this debate has reflected the problems of London in particular.
We should therefore appreciate that cyclists of course have obligations. The noble and learned Lord, Lord Scott, indicated their legal obligations that we all know well. He also said that he shaded a little on legal obligations regarding the red light-and I understand the particular demands of two-wheeled traffic. In fact, one of the problems that cyclists face is that far too few motorists have experienced using two wheels and the difficulty there is in balancing a bike and manoeuvring it in limited space.
Cyclists clearly have obligations, certainly when it comes to pedestrians. They need to take the same care with regard to pedestrians crossing roads as those driving motor vehicles are expected to do. Where cyclists break the law by going on pavements, they have a real obligation. It is better that they do not break the law, but we all know the temptation when the so-called cycle lane seems rather more hazardous than normal road space. That can be the case when sunken drains are in the cycle lane and all sorts of other dangers occur, so cyclists are tempted to go on pavements. Their social obligation there is clear, but cyclists cause a very small percentage of accidents.
This debate should highlight public concern about the number of serious accidents to cyclists in recent months. I do not want to exaggerate the matter. We should recognise that our road safety record compares well with other countries, but we should also recognise incipient dangers. Several of them are clear.
One is that large heavy goods vehicles have caused death to our fellow citizens in recent months because the drivers of those vehicles were unaware of the cyclist on their nearside. We need to address that issue. It can be solved by better mirrors for drivers, so that they are more acutely aware of what is on their nearside. It can also be helped by guard rails, which prevent the cyclist, if knocked off the bike by the vehicle, from falling under the wheels, where death or serious injury is almost certain. Is the Minister considering legislation for heavy goods vehicles in view of the recent tragedies from collisions with cyclists?
Secondly, the noble and learned Lord, Lord Scott, raised his problem with traffic lights. We probably need extra consideration for cyclists at traffic lights. We do that for pedestrians, as we need to in crowded circumstances, where we have crossing lights for pedestrians. We probably need a signal which gives cyclists a pre-emptive start on the rest of the traffic to
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I should like the Minister to respond to the point raised by my noble friend Lord Haskel and the noble Lord, Lord Taverne. It shadows what happens at sea, where responsibility is placed on power to take care of sail. In the same way, it seems to me, motor vehicles ought to take greater responsibility than people who are pedalling cycles. If an accident occurs, there should be a presumption that it is for the motorist to be answerable.
Earl Attlee: My Lords, I am grateful to my noble friend Lord Glentoran for introducing this important subject for debate and for the clear way in which he did so. There are two camps in this debate; however, there is no doubt that all noble Lords are concerned about the safety of all vulnerable road users, so that cyclists are safe and that they do not endanger others.
The commendable Cities Fit for Cycling campaign has been spearheaded by the Times newspaper. Its campaign is in response to the tragic accident involving Mary Bowers. I understand that not only was she such a good reporter that she was on the staff of the Times but that she has undertaken highly commendable aid work in Africa. I am sure that we all hope and pray that she can make a recovery.
My noble friend referred to the mayor's cycling strategy, which is entirely consistent with the coalition Government's policies. All road accidents are tragedies that strike hard and without warning, so the Government, like our predecessor, are working hard to make highways safer for everyone. In answer to the noble Viscount, Lord Craigavon, since at least 1997 the UK Government have been strongly pro-cycling. For instance, many cyclist fatalities involve large vehicles, so to make cycling safer in our cities and towns we have recently given councils in England the power to install Trixi mirrors at junctions so that HGV drivers can see more at blind spots.
The noble Lord, Lord Davies of Oldham, raised the issue of visibility and sensors. We are leading discussions at a European level to further improve standards for HGVs to help to reduce accidents caused by poor visibility. We also welcome initiatives such as the Exchanging Places events, at which you can sit in a lorry cab and watch for a police cyclist riding up on the left of the vehicle. This gives you an idea of what the lorry driver can see.
The noble Lord, Lord Davies of Oldham, also asked about side guards on HGVs. Most HGVs already have to have side guards, but the noble Lord will be aware that there are some exemptions, particularly construction vehicles, and they have been disproportionately involved in these tragic accidents. Over time, we should see fewer new vehicles without side guards. New European rules that are currently being phased in are stricter than existing GB rules and should reduce the current fairly long list of exemptions from the fitment of side guards, as well as limit exemptions to vehicles where fitting side guards is difficult or impossible.
We are also considering how to make motorists more aware of the needs of cyclists and are looking at how to incorporate more cyclist awareness in the driver certificate of professional competence for drivers of large vehicles.
The noble Viscount, Lord Craigavon, advised caution on 20 mile per hour speed limits. Reducing traffic speeds can make our roads safer for everyone and make streets more pleasant places for both cyclists and pedestrians. We are supportive of local authorities adopting a 20 mile per hour speed limit, particularly in residential areas, and have relaxed regulations to enable these to be introduced with less bureaucracy. It is for local authorities to determine their suitability for introduction.
We have also committed £11 million per year for the remainder of this Parliament for Bikeability training to help a new generation of cyclists to gain the skills they need to cycle safely. Bikeability is not just for children; it is for adults too, and some local authorities provide free or subsidised training.
My noble friend Lord Glentoran talked about driver testing. We are committed to further improving the safety of young drivers. Young people ought to learn how to handle risks before taking the driving test. We want a driver training and testing system that ensures that learner drivers have the knowledge, skills and, most importantly, the attitude to be safe and responsible on our roads before a full licence is granted and that encourages continued training afterwards.
I am also well aware that your Lordships are very concerned that all users of the highway should abide by traffic laws. Indeed, I have recently answered Oral Questions about cyclists riding on pavements and going through red lights. Cyclists injure other road users less frequently than do motorists. However, it is important for cyclists to comply with road traffic laws for their own and others' safety and to help to build respect between the different groups of people using our roads. I fully understand the points made by my noble friend Lady Sharples and the noble Lord, Lord Wills. The noble Lord talked about the problem of the underreporting of accidents. It can be difficult to measure cycling accidents, particularly cyclist-only accidents.
The offences of careless and dangerous driving are applicable to drivers of motor vehicles. For cyclists, there is a similar legal framework, including offences of dangerous cycling, careless and inconsiderate cycling, and cycling under the influence of drink or drugs. Noble Lords will be aware that enforcement in relation to cycling offences is an operational matter for the police. They have at their disposal a variety of sanctions, including the use of fixed penalty notices for some offences, such as cycling on the pavement. Fixed penalty notices can be issued to people aged over 16. In answer to the noble Lord, Lord Wills, the most effective deterrent is the probability of sanctions being applied rather than their levels. There is also the problem of some cyclists being ignorant of the law.
The police acknowledge that many cyclists, particularly children and young people, are afraid to cycle on some roads. This is one reason why, at times, they use their discretion and enforce the offence of cycling on the
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Cycling has many benefits, as pointed out by my noble friend Lord Taverne and the noble and learned Lord, Lord Scott of Foscote. Research suggests that for each life lost through a cycling accident, approximately 20 lives will be extended by the health benefits of cycling. As well as the health benefits, cyclists offer other benefits when they replace vehicle trips, and these include reducing carbon emissions, improving air quality, and reducing congestion. My noble friend Lord Taverne has done the House a great service by explaining the benefits so well.
Last September, my colleague Norman Baker chaired the inaugural Cycling Stakeholder Forum. The forum was set up to gather together expert stakeholders who share our goal of increasing cycling. The group is currently looking at the links with health and how to tackle both the real and perceived risks of cycling. I believe that the next meeting is due on 20 March.
The noble Earl, Lord Clancarty, and the noble Lord, Lord Haskel, talked about shared spaces. New guidance to help local authorities to design high-quality shared space schemes was published by the Transport Minister Norman Baker last year. The local transport note on shared space has been developed to assist local authorities that want to put in place well designed shared space schemes. The guidance places particular emphasis on engagement with the local community and on inclusive design, where the needs of a diverse range of people, including people with disabilities, are properly considered at all stages of the development process.
On top of the integrated transport block funding, we are also providing £560 million to local authorities through the local sustainable transport fund to support packages of measures that deliver economic growth and cut carbon: 38 out of the 39 successful bids announced last July included a cycling element. The Government will announce decisions on tranche 2 and large project bids later this year. Last month the Government announced a further £15 million of funding for new cycle infrastructure: £7 million will go to improving facilities at stations for cyclists and £8 million will go to Sustrans to provide better local links by creating new off-road cycle paths or shared-use paths.
My noble friend Lord Glentoran talked about insurance, as did my noble friend Lady Sharples. The Government have no plans to make insurance compulsory for cyclists. We encourage all cyclists to take out some form of insurance, and many do through cycling organisations, such as CTC, which provide it with membership, or through their household insurance. The absence of insurance does not prevent a cyclist from being liable for their actions. The police, and ultimately the courts, will take into account all the circumstances of any incident and judge accordingly.
My noble friend Lord Glentoran mentioned the need for high-visibility clothing. We want to encourage all cyclists to wear high-visibility clothing to help them to stay safe while riding and to make them more
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My noble friend Lady Sharples talked about helmets. We want to encourage cyclists, especially children, to wear helmets to protect them if they have a collision. However, we believe that it should be a matter of individual choice, rather than a matter of imposing additional regulations that will be difficult to enforce and, again, could discourage cycling.
The noble Lord, Lord Haskel, and others raised the issue of strict liability. In English civil law, the principle of civil liability in motor insurance is predicated on the establishment of fault. In order to prove fault, it is necessary to prove that the defendant's actions caused the accident and were either negligent or intentional. We have had the benefit of advice from the noble and learned Lord, Lord Scott of Foscote, which has saved me the effort of straying outside my area of expertise.
Lord Davies of Oldham: I am grateful to the Minister for allowing me to intervene, because I realise the constraints of time. He will know that in Holland and Denmark, which have been cited in this debate, the presumption of responsibility for the accident lies with the powered vehicle. That issue was raised by several noble Lords and I sought to emphasise it, too. Have the Government considered that matter?
Earl Attlee: My Lords, we have considered it, but it would be a little odd to have a completely different legal system just for cycles. There are serious complexities here that in my opinion are insurmountable.
The noble Viscount, Lord Craigavon, talked about advanced stop lines. There appears to be some misunderstanding about the law. It is essential that all motorists read the Highway Code to avoid inadvertently committing an offence and therefore being prosecuted by the police.
If I have missed any vital point, I will of course write to noble Lords. In conclusion, I can assure the House that we are committed both to promoting cycling and to improving road safety for all road users, including cyclists.
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