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I am sorry to have taken up so much of the Committee's time on these important amendments. They could, of course, have been split into different groups, but perhaps it is right that they have not been. I hope that the Government will listen carefully to what has been said in this group. I beg to move.
Lord Lester of Herne Hill: I shall just say something about Amendment 124 in relation to defamation and privacy. This could take hours of a separate debate, but I am going to try to be extremely brief. As the noble Lord, Lord Bach, has indicated, this has to be seen in the context of a defamation Bill that has not yet been published. We have had my Private Member's Bill, a government draft Bill and consultation, and I hope very much that there will be an actual Bill in the Queen's Speech in the next Session.
I suggest that it is perhaps not appropriate to be moving amendments at this stage so far as costs and insurance are concerned until one knows the substance of the actual defamation Bill. I take it-and the my noble friend the Minister will slap me down if I say something that he strongly disagrees with-to be one of the objects of the reform of defamation law to secure a fair balance between the rights of claimants and the rights of defendants; and between the fundamental right of claimants to vindicate their reputation and their right to personal privacy on the one hand and the right of defendants to freedom of expression on the other. Claimants, so far as libel is concerned, have tended to be the rich and the wealthy, not always, but mainly. The rich and the wealthy, whose lawyers are also rich and wealthy, have abused their power in the past, as the previous Justice Secretary, the right honourable Jack Straw, recognised when he introduced his proposals about capping success fees and conditional fee agreements in this area. They have abused their power by running up enormous legal costs, even in cases where there was no real defence, with the result that the defendant, normally a regional or national newspaper, was faced with a situation where the damages might be £20,000, but the legal costs might be £250,000. It was that abuse that led the European Court of Human Rights in the Mirror Group case to indicate that that had a serious and unnecessary chilling effect on the freedom of speech of publishers. I emphasise that.
The second thing I want to emphasise is that just as claimants have tended to be rich and powerful, although one wishes that the poor would also be able to vindicate their reputations, defendants are not always rich and powerful national newspapers. They may be the citizen critic accusing a public authority of abusing its power, an NGO or a small regional newspaper with very little funds to meet legal costs. I take it to be an objective of the defamation Bill to reduce the costs of litigation and to discourage litigation in the area of reputation and privacy by encouraging the use of lower courts, say county courts, not just the High Court, focusing on alternative dispute resolution and finding ways of securing equality of arms, to use the European phrase, between the parties where there is inequality of arms at the moment. All that needs to be tackled in the context of a future defamation Bill, when we can look at procedures and costs in relation to those reforms which must be designed to secure a fair balance, not a charter for rich newspapers or rich claimants. I think that until we know the Government's final thinking on this and are able to debate it, it is premature to try to adjust the costs and insurance provisions of this Bill in order to try to tackle the kind of issues that I have inadequately summarised.
Lord Prescott: My Lords, I apologise for missing the first few minutes of this debate. The debate I listened to earlier on Clause 43 showed that there is a great deal of feeling about an injustice being perpetrated here in all forms of the use of no win, no cost. I have been in an interesting situation that I would like to relate to noble Lords as an example of what can happen under these new changes.
At Second Reading, I made it clear that I thought this Bill moved power and resources to the wealthy and more powerful and away from the individual, and that the individual was going to be the victim because they were seeking legal redress. These amendments will make it much more difficult to achieve that. It is really about strengthening the more powerful in our society, particularly in regard to individuals and the press. The evidence is clear in the many examples. They do this by changing the rules of no win, no cost under the 1999 Act and other legislation. Under this Bill, the cost of the insurance to take out these cases and, indeed, the changes in the risk payments, will transfer not from the loser, but from the one who has won the case. If you win the case, you are still going to pay a penalty.
In looking at the circumstances-and I shall refer to my court case on telephone hacking-one can see the fundamental difference. I am talking about individuals who see their rights being breached by the media. For example, under the system we have at the moment, I was awarded £40,000 damages. My solicitor's costs were about £80,000. That means that I got £40,000, my solicitor got £80,000 and the insurance and the risk were included in that. What we are proposing now is to limit the amount of money paid to lawyers for the risk factor-I shall not go into all the arguments that have been made here-which is how they secure more money to take on more risky cases for more people to get access under this no win, no cost situation.
In my mind, that is straightforward. The damages come to me, they are mine. The lawyers get their full costs. Who carries all these costs? The people who lost the case, the ones who have been phone hacking, who have been breaking the law, which we are all aware of, and who have even been paying the police. In those circumstances, why should they not pay the full penalty? I understand that they quote the Mirror Group case at the European Court of Human Rights. In that case, the costs were high. Why? It has always been the practice of the press to fight until the last minute. If anybody wishes to pursue them with no-win no-fee, they say, "Sue us". You may well have a case, but they will make you sell your house and everything else before you have sufficient resources. At the end, when you have done all that, they say, "Okay. We'll concede the case", and they will offer you some kind of damages. That is the pressure that puts costs up in the courts in these cases.
What would have been the effect if I had pursued my case under these new rules? Believe me, this press is not going to go away; it is still going to be committing the same offences. We have a PCC that is particularly useless and will continue to be unless we make fundamental changes. Anyone listening to the Leveson inquiry must hear that the press has not changed its mind; it is still going to go ahead and do the same things because that is how it sells newspapers. Let us assume I have a complaint of a similar nature against the press. This would mean that I would have to get a no-win no-fee situation. Given that they have already reduced the risk costs, it is highly unlikely that they may find this a risky situation. In fact, when I was complaining in this
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I do not think that will go away but if you reduce the risk costs, those lawyers will say, "This is a big risk, I am not going to take the case". You will be on your own to see if you can pursue it. Let us say you find a lawyer who is prepared to do that; they will sue for damages and make the claim. Taking my case, let us even assume that the lawyer is successful, after those difficulties, and that damages are awarded to me. Under these new rules, I will have to carry the insurance cost and the risk cost, given that the difference is limited to 110 per cent. If that is the case, I will be the one who is penalised.
I worked out what the costs were under this formula. It would mean that nearly all my damages would have gone in paying the costs that I am expected to pay if I win the case, and the people who have their costs reduced are the people I am suing, even though they have admitted they are wrong. Therefore, the one who has actually won the case is worse off. They would take nearly the £40,000-I have looked at these figures and that is the possibility. Does that strengthen the individual or does it strengthen the more powerful party in this unequal relationship? Indeed, this clearly shows that the latter is the case.
and that is quite apart from being shattered from our people claiming the human rights when they are spending most of the time trying to defeat it. But the point is that there are 16 identical replies-every one of the replies from television, radio, the Guardian, the Mail, Sky, BBC, was exactly the same, to all 60 questions. All of a sudden, when they are usually divided about many issues, when it comes down to money, all 60 answers are that they should keep their position. Even the good old liberal Guardian sided with Dacre, for God's sake-that takes a bit of thinking about. They are now agreed that they should be able to keep more of their money, even though they are the ones that transgressed in this situation. For those 16 to get together-some lawyer has written the answer to every one of them. If a trade union did that, we would be in trouble. It would be all over the front pages: "60 identical replies, it must be a conspiracy". Of course it is a damn conspiracy. That they have come together in this survey to give exactly the same answers is perhaps not a crime, but it is near to it. They have the power to do it.
It is not new to me. When I was in the other place, they made exactly the same request to the Labour Government. The Labour Government did not agree-
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You may think that the press has changed, but I do not and so we will wait and see. I have been a victim of many of its attacks, and I live with that. I have an example of a political action in the past week by the Daily Telegraph. I announced that I might stand for the job of police and crime commissioner and I got a full page on that in the Telegraph. What worried me was that it used as evidence all personal facts. When I got on to the paper and asked, "Where did you get that information, because it is lies?", I was told, "We got it from Wikipedia". It did not even ask a question; it just pumped it out. Why? Because it was a political action to attack somebody from another political party for decisions they have made.
I have an action for a judicial review. What would happen now with judicial review? I get no-win no-fee; it helps me to take against the police. You can hardly argue that it is not a public interest. They have not carried out their jobs and I hope that shortly they will make an apology for that, but I could not have won that without no-win no-fee. That is the reality of it. If that is removed, how would you take an action on judicial review? What I also find offensive is that I will be told I should not have the assistance but the Metropolitan Police will use all the money in its accounts employing the best barristers to take me on-and that is taxpayers' money-while I am told as an individual that I cannot have that right. That is what this Bill is going to do. It will make it more difficult to say to the Metropolitan Police, "You have got it wrong"-and I hope shortly that will come out.
The whole point of this is that we are shifting power from the vulnerable to the powerful. We are shifting the cost and putting it onto the more vulnerable. This is what these amendments are opposing. At Second Reading, the noble Lord, Lord McNally, said this was a radical shift. Well, it is, but I did not think it was as radical as I now understand it to be. It is a radical shift away from the weak and to the strong, and it is going to make it more difficult, particularly in these media applications. This Bill is not about better civil justice, it is about disadvantaging the vulnerable. That is what we should not accept and that is why we are moving these amendments.
Lord Martin of Springburn: My Lords, I support the noble Lord, Lord Bach. I listened with interest to the noble Lord, Lord Lester, and his comments about the rich and famous being able to take cases to court. This is what worries me about the lack of no-win no-fee. I am not concerned about the rich and famous, I am concerned about ordinary men and women, who
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For those of us who have approached newspapers and said, "What you have said about me is wrong", their first reaction is, "If you don't like it, write a letter and we will print it in the readers' column". How insulting is that, that I or anyone else should then make a contribution to a newspaper-which is usually a nasty newspaper that you would not even have in your home-by putting a letter into their column? That is even the line that they take with the Press Complaints Commission. Everyone knows that when anyone takes up a complaint with the Press Complaints Commission, they are not even looking for money, they are looking for some redress, and that is the first course of action that they take.
Years ago, perhaps in the 1950s, 1960s or 1970s, it used to be the case that if a newspaper printed something that was wrong about you, it was a matter between you and the newspaper. This is not the case nowadays, because when a newspaper prints an allegation, there is a press preview on Sky News or the BBC, where they get some talking heads to chew over what has been said about you that day. That means that even when you are deeply embarrassed about what has gone out, and you have not even had a chance to redress the balance, within hours of that newspaper being published hundreds of thousands of viewers are able to get a look at that newspaper because they are invited to do so by another press organisation.
I note the point that the noble Lord, Lord Lester, has made about local newspapers. When is it that people take offence at a local newspaper? There is maybe the odd individual. But a local newspaper says to itself, "We do not have the resources to involve ourselves in a law suit, so we had better be careful before we go to print". My local newspaper is the Springburn Evening Times. While there have obviously been people who have taken exception to what it has had to say, I have never known anyone to take it to court, because as an organisation it is careful about what it does.
Lord Lester of Herne Hill: Has the noble Lord read the evidence that was given to the Joint Committee on the Draft Defamation Bill by various NGOs and regional newspapers, indicating the ways in which the existing law of libel has a very similar chilling effect on their ability to report and comment on matters of public interest?
Lord Martin of Springburn: I have not read the document, but now that the noble Lord has drawn it to my attention, I will. What I am talking about is the experiences that I have had of local newspapers. Of course, they are careful that they do not get involved in any litigation, in the same way as we-as people who have privilege in this Chamber-will be very careful about what we say out in the street, because we know that we would be subject to litigation.
However, the national newspapers are not concerned about being subject to litigation. Some of them are very rich organisations indeed. They know full well,
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I know that this is about an amendment and therefore I had better not go on for too long about the whole thing. I will say, however, that ordinary men and women should be able to go and, if necessary, take their case to court. I take the noble Lord's point that if there is a lower court that can handle it, that might be all the better. I will end by saying this: how ordinary can this situation be? An unemployed man in Liverpool, who was a pass-keeper in his local church-the person who does the collection plates and opens the church ready for the service-was accused in a publication of taking money from the collection plate that he put around. His difficulties were so great that he had to get the cheapest bus ticket from Liverpool to London to see a no-win no-fee lawyer to make sure that the balance was redressed. He won. Are we going to say of a man like that, who is unemployed, who was doing his duty in his church-someone who is respected not only by the congregation but by the whole community-and who has an accusation like that made against him, that we cannot allow him to get to court and put his case?
The Minister of State, Ministry of Justice (Lord McNally): My Lords, this has been a very useful debate, with a good deal of passion. During parts of it, I was reminded of a saying that my old mentor, the late Lord Callaghan, used to be fond of, that a lie is halfway round the world before truth has got its boots on. He used to say that 30 years ago; what would he say today, with the internet, tweeting, blogging and the rest? Perish the thought.
We are in a very difficult area. Many of the issues that have been raised today are currently before various inquiries and committees of the other place, and, indeed, in litigation, so I shall tread carefully on this. I have to tell the noble Lord, Lord Prescott, that even under the present regulations, legal aid for judicial review is means-tested, and so I doubt whether he would get legal aid even in the present circumstances.
A number of very emotive cases have been raised. I saw the publicity around the Dowler case letter. I thought at the time, and I still think, that it is almost inconceivable that the Dowlers would not have been able to pursue their case under conditional fee agreements. The idea that they would have been powerless in the case that they had is perhaps countered by the fact that the matter was settled out of court-and if reports are to be believed, at a cost of £3 million to the offending company. I am not so sure that the argument that they would have been left powerless stands up in those circumstances.
I shall deal with the various issues raised. First, it is true that the Government are looking for an opportunity to legislate on defamation. We will have to await the Queen's Speech to see whether it can be taken in the next Session, but we have made a lot of progress on it. We have had my noble friend Lord Lester's Private Member's Bill, which I then took to a government draft Bill. It has now had a very good and thorough examination by a Joint Committee of both Houses for pre-legislative scrutiny, under the chairmanship of my noble friend Lord Mawhinney. In turn, that committee has produced a very good report.
We are certainly ready to look at reform of defamation, but I would say-and again, this touches on much of what has been discussed today-that we are looking to try to remove some of what has been described as the "chilling effect" of our present defamation laws on the rights to free speech, as against the rights of the individual which the noble Lords, Lord Prescott and Lord Martin, have outlined today. It is important that we get the balance right.
I say with no sense of bitterness that 10 years ago, when I tried to introduce a modest amendment to strengthen and put some backbone into the Press Complaints Commission, I was told from this Dispatch Box by the Labour Minister of the day that my proposals were the,
We have to get the balance right between freedom of the press, which is so important to a functioning democracy, and proper responsibility on the part of that press. I hope that one of the things to come out of the recent discussions, debates and inquiries will be a much better form of accountability and regulation that addresses the very point made by the noble Lord, Lord Martin, about the speedy and cheap resolution of damage to reputation. We have come a long way from the time when people went into libel or defamation cases expecting to come away with football pools-sized awards. That is not the case. As has been said on a number of occasions, these days the likely costs of litigation always outstrip the likely awards.
I think that there is a good and useful account on this. We have to await the outcome of the Leveson inquiry, although I strongly believe that the opportunity to reform defamation is a separate matter. I would be very worried if Leveson produced a kind of tsunami of debate that swept away the real opportunity to go ahead with defamation reform.
Let me go back to the point with which the noble Lord, Lord Bach, opened the debate, after which I will comment further on the media issue. He mentioned professional negligence claims. Under our reforms people will still be able to bring cases on CFAs in areas in which they are currently used. After all, we are returning the CFA arrangements to their original form. I am aware of concerns about professional evidence claims that can involve, for example, claims against negligent building surveyors, accountants or solicitors. We have carefully considered the consultation responses on these types of case but remain unconvinced that
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The noble Lord also mentioned financial services. A number of bodies could deal with those kinds of cases, including the Financial Ombudsman. As to how these reforms would affect small businesses, the Federation of Small Businesses, which is not always ready to support the Government's approach, supports the proposals in this Bill.
The noble Lord, Lord Beecham, frankly said that this is one of a number of probing amendments to see whether the broad architecture, which provoked the original debate today, would be changed in any way. This and a number of debates to come will test whether we are likely to change our mind and make any exceptions from that broad architecture. The Government do not see that any exception to this is justified except in relation to ATE insurance premiums in respect of clinical negligence expert reports that we have previously discussed.
I therefore resist all these amendments, as they seek to undermine the Government's reform of civil litigation funding and costs. The current arrangements with a recoverable success fee and ATE insurance allow for risk-free litigation where claimants have no real interest in the legal costing incurred on their behalf. This has led to an increase in the costs of civil litigation and must be addressed. The judgment of the European Court of Human Rights in the January 2011 case of Mirror Group Newspapers against the UK, usually called the Naomi Campbell case, found that the existing CFA arrangement with recoverability in that case to be contrary to Article 10, on freedom of expression, of the convention. Changes are therefore necessary and the current regime cannot continue.
The Government are aware of concerns about access to justice and the ability of those with modest means to pursue claims against often powerful media organisations. However, we do not believe that it is necessary to make any special provision in relation to the costs of privacy or defamation proceedings. We will continue to monitor the position following the introduction of the CFA reforms and other reforms to the law and procedure for defamation claims on which the Government have recently consulted.
As the coalition agreement made clear, we are firmly committed to reform of the law on defamation. The right to speak freely and debate issues without fear of censure is a vital cornerstone of a democratic society. We want to ensure that a fair balance is struck between the right to freedom of expression and the protection of reputation. There are real concerns that the threat of libel proceedings is being used to frustrate robust scientific and academic debate, and to impede responsible investigative journalism and the valuable work undertaken by non-governmental organisations. The draft Bill, which we published last year, aims to bring the law up to date and ensure that the right balance is achieved. We are also looking at ways of speeding up court cases so as to cut the costs involved in defamation proceedings, and encouraging the use of the alternative dispute resolution in order to facilitate early settlements.
The Government are also aware of concerns about professional negligence claims, which can involve, as I have said, claims against surveyors, accountants or solicitors. We carefully considered the consultation responses in respect of the impact of professional negligence cases, but remain unconvinced that there is anything fundamentally different about them that would justify an exemption from the general principle of abolishing the recoverability of success fees and "after the event" premiums. I can assure noble Lords that the Government have considered all these amendments individually and in the round. If accepted, the amendments to which I have referred would undermine the overriding objectives of the package of reforms, which are to make the costs of civil litigation more proportionate. The Government believe that lawyers will take on meritorious cases without recoverable success fees, including in cases to which these amendments relate. It is not unreasonable for any success fee to be paid by the party entering the CFA.
In respect of the risk of an adverse costs order, different considerations apply in respect of different proceedings. The Government have said that qualified one-way cost shifting should apply in personal injury cases. Lord Justice Jackson suggested that QOCS might be considered for introduction in some non-personal injury claims as an alternative to recoverable ATE insurance. The Government are not persuaded that the case for this has been made at this stage.
Personal injury cases, as a class, are different form other types of litigation. There are hundreds of thousands of personal injury cases each year. They are typically run on CFAs with ATE insurance and involve claims by individuals against generally well resourced or insured bodies. These claims have a high overall success rate and the primary remedy sought is damages. The position is different and less clear-cut in non-personal injury claims. CFAs are very much a minority form of funding in these claims, and rolling out QOCS to these would distort the market by imposing substantial changes on all cases in a particular category of proceedings for the benefit of a small number of claimants.
The Government will examine the experience of QOCS in personal injury claims before considering whether it should be extended further. Different considerations apply in different types of case. Environmental claims, for example, typically involve more than one claimant who can contribute towards the costs. "Before the event" legal expenses insurance may be available in relation to the provision of goods and services.
I have listened carefully to the arguments advanced in respect of exceptions in individual areas covered in this group of amendments. However, I am concerned that making these exceptions could undermine the benefits of these reforms. I therefore urge noble Lords not to press their amendments.
Lord Bach: I thank the Minister for his response, but he will not be surprised to hear me say that I found it deeply disappointing and unsatisfactory. I do not think that the arguments he has employed deal with the gravity of the issues raised in these amendments. I thank noble Lords who have spoken in this debate, in
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On the law of defamation, perhaps I may make my position absolutely clear. I believe that it should be changed and I look forward to the reforms. I have spoken on them before. We shall see what the Bill looks like but I am in favour of the reforms. Of course we want to see the right balance between claimant and defendant in defamation cases, as I hope we do in every part of our law. But we are not talking about that. You can have the best system in the world, but if only very few people can actually use it, it is not much good. That is the real criticism here. The system will be changed, it is hoped for the better, with a better balance for those who manage to get proceedings off the ground, but if it is only the rich and the powerful who can sue for defamation, then as I say, it is not much use and goes against the British system which should allow all people to have access to justice. If we leave it to the Defamation Bill itself, this Bill will already have passed in its present form. Is it really believable that the Government will then suddenly say, "Oh, we were wrong in the Legal Aid, Sentencing and Punishment of Offenders Bill and so we will change it now that we have the Defamation Bill"? I do not think so. That is why these issues have to be raised in this Bill.
The noble Lord, Lord Lester, was right to say that there are defendants in defamation cases who are not powerful, but I remind the Committee that defendants can and sometimes do use CFAs in cases of this kind. They, too-good, successful defendants-if they are not able to use CFAs because of the risks attached to the costs position, may find themselves not using them when they do already.
In theory, the Minister is absolutely right to say that the CFA system still exists and that people can still use CFAs, but in practice the question that arises from these amendments is this: will they, when they stand to lose their assets even if they win their case? That is the issue. We gently warn the Government now that it is no good looking at this four or five years down the line when it is discovered that the Government have been so inflexible in their approach to this part of the Bill that justice is denied to a large number of ordinary people because of the statute that will then be in place. The Minister said that there was coalition agreement about defamation reform. Indeed there was, but I remind him and the Committee that there was no coalition agreement at all about Part 2 of this Bill.
If the Minister accepts that damages are outstripped by costs, surely the Government must agree that success fees plus "after the event" insurance will dwarf the damages that are awarded; that is, victims will be left
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Lord Bach: My Lords, judicial review proceedings offer a chance for the ordinary citizen to review decisions made by the state or by an emanation of the state, be it local government or powerful governmental bodies, if they have a justifiable interest in that decision. It is often the last chance for the law to review the decisions of lower courts and tribunals or state decisions that are not in themselves subject to appeals. The costs of bringing a judicial review claim are considerable, in the region of £10,000 to £20,000 for a straightforward case, and obviously higher for a more difficult one. If the claimant is unsuccessful, they are likely to be liable for the defendant's costs as well as their own. They are therefore looking at legal bills of perhaps upwards of £30,000 if they lose and they must be prepared for this eventuality bearing in mind the unpredictability of judicial review proceedings by their very nature, and, of course, costs orders.
Conditional fee agreements are in theory available as a means of funding judicial review proceedings, although they are relatively rare. We are therefore not discussing the standard way of funding, but rather the minority of cases that are taken by CFA for judicial review. These are cases that are not being picked up by legal aid or other mechanisms of funding. In some instances, what is called a protective costs order may be the only way in which the claimant can bring the claim, or it may be necessary to consider applying for a protective costs order in combination with one of the options I have mentioned. However, protective costs orders are themselves available only in relatively limited circumstances based on the rules set out under the leading case of Corner House Research and subsequent decisions. We put this to the Minister in another place but felt that his answer was unsatisfactory. I ask the Committee also to find it so. I hope I may be forgiven for quoting him at length:
"Responses to our consultation indicated that CFAs are less commonly used outside the area of personal injury and are not frequently used in judicial review proceedings. In addition, ATE
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"Under our reforms, people will still be able to bring cases on CFAs in areas where they are currently used, as we are returning the CFA arrangements to their original form. In judicial review proceedings, which raise issues of general public importance, claimants can, in appropriate cases, apply for a protective costs order to limit the amount of the defendant's costs that they may be required to pay if they lose, and legal aid is also being retained for the vast majority of judicial review cases currently funded. Legal aid recipients will continue to benefit from cost protection".-[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 13/09/11; col. 555.]
"Qualified one way costs shifting should be introduced for judicial review claims ... If the defendant settles a judicial review claim after issue and the claimant has complied with the protocol, the normal order should be that the defendant do pay the claimant's costs".
"A public law costs regime should promote access to justice. It should be workable and straightforward. It should facilitate the operation of public law scrutiny on the executive, in the public interest. This is the key point. For judicial review is a constitutional protection, which operates in the public interest, to hold public authorities to the rule of law. It is well-established that judicial review principles 'give effect to the rule of law'...The facilitation of judicial review is a constitutional imperative".
"If qualified one way costs shifting is introduced, in my view that will strike the right balance as between claimant and defendant in judicial review proceedings. There is no justification for imposing upon defendants the additional burden of paying, potentially huge, success fees. Significantly, a number of respondents from both sides of the fence have recognised this principle during Phase 2. The success fee payable, if any, must be a matter between the claimant and the claimant's solicitor".
How, then, will the impecunious settle the success fee and from which non-existent bank account? Furthermore, if public law practitioners cannot retrieve their success fee, what will be the impact on their decision to take on 90 per cent to 10 per cent cases, let alone 50 per cent to 50 per cent cases? It is in the interests of justice that those cases are sometimes taken on, but many may not be in future. How will the Government protect the constitutional imperative, if they agree that it is one, that administrative law should be allowed to be pursued by the ordinary citizen in cases of judicial review when legal aid is not available? I beg to move.
Lord McNally: My Lords, like the noble Lord, Lord Beecham, when speaking to the first series of amendments, the noble Lord, Lord Bach, continues to jab away at the broad architecture of these reforms. In these reforms we do not accept every last jot and tittle of Lord Justice Jackson's report but, in the main, we accept its major thrust. It is a package of reforms and we are concerned not to dismantle it by accepting this series of amendments. The reasons for that are clear. The Jackson report was motivated not by government initiative but by judicial demand. Both the Master of the Rolls and the Lord Chief Justice wanted to look at a dangerous inflation in civil costs which in their view-a view that we share-was having an impact on access to justice. Whether there was or is a compensation culture, we can debate for a very long time, but we know that in many parts of the law there has been a quite worrying inflation in costs. A number of examples given by noble Lords on all sides suggest that action is needed. The Official Opposition's view on the Jackson report was not clear from the remarks of the noble Lord, Lord Bach-he said that he did not agree with this bit of it. The noble Lord, Lord Beecham, looks like a greyhound in the traps, but perhaps at the end of the debate he can tell us his party's general approach to Jackson.
As someone who firmly supported the Hunting Act, I am not sure that I am allowed to use the term "shot my fox", but the arguments that I was intending to deploy were very accurately read out by the noble Lord, Lord Bach. They remain the same as those which my honourable friend Jonathan Djanogly deployed in the Commons-that is, under our reforms people will still be able to bring cases on CFAs in areas where they are currently used in judicial review. After all, we are returning the arrangements to their original form. Legal aid is being retained for the vast majority of judicial review cases that are currently funded. Legal aid recipients will continue to benefit from costs protection. Although I understand what the Opposition are doing in testing various parts of the architecture of the reforms, I can only say again that we will resist the amendments, as they seek to undermine the Government's reform of civil litigation funding and costs.
I have listened carefully to the arguments advanced in respect of exceptions in individual areas. However, we should not revisit arguments that have already been fully and properly aired in these debates. I am concerned that making the exceptions that the amendments advocate would undermine the benefits of our reforms. I therefore urge the noble Lord to withdraw the amendment.
Lord Pannick: Does the Minister accept that claimants in judicial review cases will not be able to pay success fees, because victory in a judicial review almost never results in the payment of damages to the claimant?
Lord Bach: My Lords, I thank the Minister for his response. When I first accused the Government of not having accepted the Jackson package, I was very careful to say that whatever Government were in power would probably not have accepted every word of such a major report. However, it is interesting what this Government have accepted and what they have left out. In short, they have left out any defence of legal aid, whereas Lord Justice Jackson was very concerned that there should be no more cutting in civil legal aid. That is also very much the view around the Committee on Part 1 of the Bill as well as, in relation to Part 2, in the case of clinical negligence if nothing else. We think that the Government have picked the wrong bits of Jackson to support, and they have left the best bits out, which is rather careless of them.
The Government should be warned that they should not just stick so rigidly to their formula for changing without looking at individual areas of the law. Flexibility is important, as well as having rules. If the Government are just going to say no to every exception to Jackson, I fear that, certainly in some areas, the reforms that will then go through, if the Government get their way, will be disastrous for civil justice in this country because they will mean that so many people will not be able to get justice who are currently able to do so.
Lord Thomas of Gresford: My Lords, I must move this amendment, since it is in the names of the noble and learned Lord, Lord Mackay, of myself and of the noble Lord, Lord Bach. It is an alliance of all three parties.
The noble Lord, Lord Bach, pointed out something that I think should not be overlooked: in the 1995 order that introduced CFAs, insolvency litigation was recognised specifically, along with personal injury litigation, as a category to which CFAs should apply. The one principle-perhaps it is not so much a principle as a rule-that underpins the Jackson report is that no cap fits all, whereas the Government's approach seems to be that they have a package that applies to everything, regardless of what it is. That is not the approach of Lord Justice Jackson, who was very careful to distinguish between various areas in his report. Insolvency litigation is a category that should be considered because of the particular features that affect it.
What is insolvency litigation? Insolvency practitioners undertake litigation on behalf of creditors against company directors or third parties whose actions have caused serious harm to a business. This includes taking money out of the business for personal use, concealing assets and committing fraud. In some cases, these actions-of directors and third parties-have led to the business's failure. The insolvency practitioner, who is brought in to deal with the disaster that has occurred, has a legal duty to maximise the returns to creditors. In cases where directors have acted improperly, this may involve undertaking litigation to return money rightfully owed to creditors, including the business community and Her Majesty's Revenue and Customs. Without the use of litigation, directors could get away with dishonest practices and businesses would lose money.
In insolvency situations, a company by definition has no money. Consequently, there are no funds available to the insolvency practitioner, who is trying to clear up the mess, to pay the legal costs involved in pursuing litigation. The creditors' only realistic hope of recouping money owed to them is for the insolvency practitioner to engage solicitors on a conditional fee arrangement. In addition to this, insolvency practitioners may be personally liable for costs incurred as a consequence of litigation and therefore require protection with "after the event" insurance. As the system currently exists, the success fees under a CFA and the ATE insurance premiums are recoverable from the defendant if a judge, on the merits of the case, considers them to be liable.
What are the impacts of this? First, let us consider the impacts on the business community. The current system is particularly helpful in insolvency litigation because it allows insolvency practitioners to maximise the assets available for distribution to creditors. If the success fee and ATE insurance premium were instead to be borne out by the insolvent estate, it would substantially reduce the amount of money returned to creditors. So the proposals here would mean that the defaulting directors or fraudulent third parties who caused the failure of the business would escape the burdens of success fees and insurance premiums, and that would reduce the funds available to pay the genuine creditors of the insolvent company. At a time when businesses are struggling, it would seem counterproductive to implement measures which would reduce their returns.
In addition to lost revenue, the business community would also suffer, as the Government's proposals would discourage an insolvency practitioner from taking action against a delinquent director. Given the considerable risks involved in insolvency litigation, an insolvency practitioner will only commence litigation on advice and once satisfied that it is economically justifiable for the creditors. Generally speaking, these people are not carrying out risky litigation; insolvency practitioners are going after the people who owe money or who have defrauded the company for which they were acting. The trade body for insolvency professionals analysed a sample of 23 case studies where insolvency practitioners undertook litigation against a director or third party, using CFAs and ATE insurance. The trade body's assessment was that, if the Government's proposals were to go ahead, the total impact on creditors in the 23 cases analysed would be a loss of £3.6 million-a 47 per cent reduction in returns to creditors. That would be the effect on the business community.
Her Majesty's Revenue and Customs is the largest unsecured creditor in formal insolvencies in England and Wales. It is the single largest beneficiary of the ability of an insolvency practitioner to avoid dilution of returns to creditors by the recovery of success fees and ATE premiums from unsuccessful and fraudulent directors in litigation. So it benefits the Revenue to keep the current system in place, and it is counterproductive to implement measures that will remove this revenue.
The present system is a real and tangible benefit to society and to the business community. Not only does it ensure that delinquent directors do not get away with sharp practice, it also increases the returns available to creditors, including the Revenue and business community.
Amendment 135, which is the main amendment that we have put down, seeks an exclusion from the general rule so that a cost order may include provision requiring the payment of fees payable under a conditional fee agreement, which provides for a success fee in proceedings by a company being wound up or entered into administration; proceedings brought by a person acting as liquidator or trustee of a bankrupt's estate; and proceedings by a person acting as an administrator under the Insolvency Act. This is a benefit to the business community and to the Revenue, and I wait to hear why the Bill proposes to take away those advantages for no apparent gain. I beg to move.
Lord Bach: My Lords, we on this side very much support the amendment, in very much the same terms as the noble Lord, Lord Thomas of Gresford, has moved it. As he said, insolvency practitioners are appointed to help insolvent companies sue directors in order to recover money for creditors of the insolvent company. The companies are insolvent; they cannot pay for a lawyer-they have no assets. The practitioners' job, which is sometimes a difficult one, is to recover as much money as possible. It is always in the public interest that they are able to do so, and I am sure that the Government would agree with that proposition.
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"A spokesman for the Ministry of Justice said: 'We are considering the impact of abolishing CFA [conditional fee arrangements] recoverability in insolvency and related proceedings. These proceedings can bring substantial returns to creditors, including Her Majesty's Revenue & Customs. We are therefore discussing the specific implications with a view to reaching a satisfactory conclusion.' ... A spokesman for Revenue & Customs said: 'HMRC is in discussion with the Ministry of Justice about the implications of the Jackson Report but is unable at present to comment further on this matter'".
The Minister can comment further on this matter in a few minutes' time. What was the outcome of the negotiations between the Ministry and HMRC? We have heard why these cases need protection, but nothing on how this will be achieved. If the Minister is to support what is contained in the Bill, he should tell the Committee how he intends to protect against the arguments used by the noble Lord, Lord Thomas of Gresford, and myself in moving and speaking to the amendment. This is a good-if not the best-example of how wrongdoers will benefit at the expense of victims. In this case, it is even more serious, because the victims are us, potentially-the taxpayers and people of this country. That is why this particular amendment supports the proposition that a one-size-fits-all package is not right for the civil justice system and that a degree of flexibility needs to be built in. If the Government maintain their position on insolvency, the wrongdoers will gain and the creditors will lose. I look forward very much to hearing how the Minister defends this particular proposition.
Lord McNally: My Lords, I feel as any Minister would, who sees an amendment signed by the noble and learned Lord, Lord Mackay, and noble Lords, Lord Thomas and Lord Bach-the names sound like one of those formidable halfback lines from a 1950s soccer team. I know that it would be the wrong game for the noble Lord, Lord Thomas.
The amendments refer to both success fees and ATE insurance in insolvency. Just for information, Lord Justice Jackson recommended the abolition of recoverability of success fees and ATE insurance premiums in insolvency proceedings. However, we have already established that we do not simply use Lord Jackson as a defence in all matters. As the Government indicated in the other place, we are aware of the specific concerns around the impact of the CFA changes in insolvency cases. The use of CFAs in these cases, under the Insolvency Act 1986, can bring substantial revenue to creditors, including Her Majesty's Revenue and Customs.
I cannot go a great deal further. The noble Lord, Lord Bach, has now introduced a new system whereby he makes my speech and his own speech and leaves not a lot for me to say. I am nevertheless grateful that on the record we had speeches from the noble Lord and from the noble Lord, Lord Thomas, setting out the problem in probing amendments, as they have acknowledged. As the noble Lord, Lord Bach, revealed in his speech, there are ongoing discussions between HMRC and MoJ, and the Government are considering the position in respect of insolvency proceedings. Until we have come to a conclusion-
Lord Bach: The quotation I read from the Guardian was from June 2011. We are now very near the end of January 2012 and the Bill is now in your Lordships' House. When are these negotiations going to finish?
Lord McNally: They are ongoing. I admit that sounds like that song "Reviewing the Situation" from "Oliver!" but I have no doubt that the good relations between the MoJ and Her Majesty's Revenue and Customs will produce a satisfactory result, which I will report to the House at the earliest possible moment. In the mean time, I request the noble Lord to withdraw his amendment.
Lord Thomas of Gresford: While I am most grateful to my noble friend for that reply, it would be helpful for these negotiations to complete before we have to vote on this matter on Report-as we undoubtedly will, along with the people who have signed it. Can I suggest to my noble friend that he talks to whoever he has to in order to get a move on? It seems a no-brainer to me that this amendment should be accepted and the quicker it is resolved, certainly before Report, the better.
(a) the proceedings include a claim by an individual or group of individuals for damages,
(b) the loss or injury allegedly caused has occurred in a developing country,
(c) a judge of the High Court has certified, whether before or after the commencement of court proceedings, that-
(i) the proposed litigation raises issues which ought, in the interests of justice, to be considered by a court in England and Wales;
(ii) the resources of the proposed claimant or claimants are significantly less than those of the proposed defendant or defendants; and
(iii) in the absence of the provisions of this subsection there would be a significant risk that the proposed claimant or claimants would be unable to secure effective legal representation in England or Wales.
(9) In subsection (8) "developing country" means a country, not being a member state of the European Union, whose per capita gross national income was less than 50 per cent of the per capita gross national income of the United Kingdom in any of the three years prior to the year (or if more than one year, the first year) in which the injury or loss is alleged to have occurred."."
Baroness Coussins: My Lords, Amendments 136, 137 and 140, which are in my name and supported by others, are designed to protect access to justice for vulnerable victims of human rights abuses committed in developing countries by UK multinational companies. I thank the Minister for meeting me to discuss these amendments, and I know that he shares my commitment to ensuring that this Bill will do nothing to undermine or impede access to justice for some of the world's poorest and most vulnerable people. Unfortunately, without these amendments-or amendments along these lines-there will be a serious risk of doing exactly that. I am grateful also to CORE, the corporate responsibility coalition which includes CAFOD, Amnesty, Oxfam and other leading international NGOs, for their support for these amendments. I should also declare an interest as an independent consultant on corporate responsibility.
The sort of cases I am referring to are few and far between. There have been only nine or 10 in the past 15 years, which reflects the high cost and high risk of bringing such cases in the first place, so we are not looking at a situation where any floodgates are likely to be opened by retaining the current system. We are talking about cases such as the one against Trafigura in 2006 on behalf of 30,000 residents of Côte d'Ivoire who were affected by the dumping of toxic waste, or the one against Monterrico Metals in Peru, where 28 people who objected to the mining company's development plans were detained and tortured. That case was finally settled in 2011, five years after the incidents.
I will not recite details of all the other cases but I assure your Lordships that whether we are talking about asbestos miners in South Africa, campesinos in Colombia or Peru, or communities living in Abidjan, these are people who face indescribably difficult hurdles in seeking justice against the multinational companies which have harmed them. In a context where there is a clear imbalance in influence, economic clout and access to legal expertise, the odds are stacked against them already and it is vital that we do not close off the route to justice in the UK courts that occasionally can be pursued.
In theory-and I acknowledge that this is the Government's present position- these human rights abuse cases could still be brought. The Bill does not actually say that they are forbidden in any way but I would argue that in practice, the changes proposed to the structure of the costs regime for civil litigation mean that such cases would effectively be too costly and too risky for any law firm to undertake. As a consequence, vulnerable people will be abandoned and denied justice. The Bill, as we have heard in debates on other amendments, proposes that success fees should be taken from the damages awarded to the claimants instead of from the company in cases such as the ones I have described, and that they should be capped at 25 per cent of costs. In addition, the Bill would abolish the recoverability from the company of "after the event" insurance premiums if the company loses.
Together, these two reforms would effectively annihilate the chances of any legal firm being in a position to start the lengthy process of such a case, inevitably involving a great deal of expensive overseas travel, the commissioning of scientific and medical expertise and so on. Indeed, there are already massively high legal hurdles which have to be cleared before a case can reach the courts in the UK-for example, proving to the court that no relevant in-country resolution is possible and that corporate liability at a global level is indeed arguable, rather than the human rights abuse being the result of some error or misdeed by a local subsidiary.
I stress that I have no quarrel with the Bill's intention in principle to rationalise the costs system and to save money, but my amendments do not interfere with that overarching objective. They do not seek to spend a single penny of taxpayers' money from the public purse; they simply seek to retain the present system, under which damages may be paid by the company itself. When it comes to the recoverability of "after the event" insurance premiums, the Bill already includes an exemption for cases of clinical negligence and I hope that the Government agree that it would be right-and equally, in the public interest-to extend that exemption to human rights abuses in the sort of cases I have mentioned. As I said earlier, I believe this can be done without opening any floodgates. However, if the Minister feels that this perhaps could be achieved with more precise wording than I have managed to craft in my amendments, I hope he will agree to take this away and give it further thought, and perhaps come back on Report with something that can do an even better job.
I am also aware, thanks to the helpful meeting with the Minister, of the Government's view that damage-based agreements, or DBAs, would in future provide an arguably better route to justice for human rights abuse victims, because they are particularly suited to group actions where lawyers' fees may be recovered as a percentage of the damages awarded to successful claimants. However, I urge real caution before the Government satisfy themselves that this would be the right way to go. In a jurisdiction such as the US, where claimants receive much higher levels of damages, DBAs
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By contrast, our present system has been praised by no less a figure than Professor John Ruggie, the United Nations special representative on business and human rights. His Protect, Respect, And Remedy framework was adopted only last year by the UN Human Rights Council and was warmly welcomed by the UK Government, who took an admirable and leading position in discussions at the UN to commit to translating the framework's principles into practice in the UK, and to encourage others to do likewise in their countries. Professor Ruggie himself highlighted to the UN Human Rights Council the UK's current system of deferred ATE premium payments as an example of how innovative, market-based mechanisms can help keep the costs of bringing a legitimate claim to a reasonable level. Why on earth would the Government want to ditch such an important and well recognised system now?
Even more recently, the Joint Committee on Human Rights published its report on the Bill, also drawing attention to the views of Professor Ruggie and the dangers of the proposed changes to litigation funding, which in his view could,
The Joint Committee urged the Government to introduce appropriate amendments to the Bill, and I hope the Minister will agree that the amendments that I have put forward are a good place to start. They are not anti-business but pro-responsible business and will help to drive up standards. There may well be a risk that, without them, some businesses will find it easier to regard themselves as off the hook when it comes to observing their human rights obligations in developing countries. I really do not want the UK to be responsible for that, and I am sure that the Minister does not either.
I should add for clarity that the definition of a developing country in subsection (9) of Amendment 136 is taken directly from the World Bank's definition, and I understand that there is general consensus that that definition is fair and workable.
These are sensible amendments, in line with government policy and the basic objective of the Bill with zero cost implications for the public purse, that would continue to provide access to justice for some of the world's most vulnerable people. There are enough obstacles in their way already; please let us not add another. I beg to move.
Lord Pannick: My Lords, the noble Baroness, Lady Coussins, makes an overwhelming case here. I support her. I share the concern that she has expressed that, without the substance of the amendments that she proposes, there is a very strong risk that the Bill will fatally undermine the limited access to justice-it is very limited-that is currently available in practice,
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Baroness Hooper: My Lords, it was drawn to my attention that the changes introduced by the Bill would make it almost impossible for foreign victims of human rights abuses committed by UK companies to access justice in this country. These are indeed sensible amendments that would protect access to justice for, as the noble Baroness has said, a very small number of vulnerable people affected by poor business practices while ensuring that there is no additional cost to the public purse.
Because of my particular interest in Latin America, I am aware of some of the cases quoted by the noble Baroness, Lady Coussins, in setting out the reasons behind the amendment. As has been said, she has made the case so clearly and fully that it is not necessary for me to go on at any length, but I wish to record my support for these amendments. I hope that the Government will give serious consideration to them.
Lord Judd: My Lords, I, too thank the noble Baroness, Lady Coussins, for having spoken so well to her amendment. I remind the House that I have been involved for much of my professional life in the kind of issues that arise in the matter that we are discussing; I am of course a former director of Oxfam. It is difficult to put on record just how concerned the voluntary agencies are, all of which I think are deeply respected in this House, and the anxiety that they have about the consequences of the new proposals.
As I have said before when I have dared to intervene in these highly expert legal arguments, it is important sometimes to spell out the social realities. The noble Baroness did this commendably in her introduction but I would like to fill that out a little more. I make no apology for doing so because we must remember what we are talking about.
In the 1996 case against Cape plc by 7,500 South African asbestos miners who had developed a range of sinister asbestos-related diseases following prolonged exposure to asbestos dust in the workplace, evidence came to light that the company had actively lobbied to conceal the nature and extent of the health risks associated with asbestos exposure and had knowingly exposed thousands of workers to the deadly dust. The courts decided that the case could be tried in England rather than South Africa. The company reached a final settlement with the claimants in 2003 to the amount of £10.5 million.
Take another case: the experience of Monterrico Metals in Peru. In August 2005, 28 people were detained by police, bound and hooded and then held for three days at the Rio Blanco mine in a remote area of northern Peru. They had been protesting against the development of the mine, the principal asset of Monterrico Metals. According to their witness statements, the
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Both these cases were brought on a no-win no-fee basis. Under those arrangements, as we all know, the victims' lawyers took on a significant burden and risked considerable financial costs if the case was unsuccessful. The Government's proposals would significantly increase the cost and the risk of taking on cases relating to corporate abuses of human rights abroad, which by their nature are extremely complex and expensive to investigate and pursue. For victims of alleged abuses in the developing world, the cost of insurance premiums would be prohibitive if they could no longer be recovered. Even if they won their case under the proposed regime, the success fee would be taken out of the victims' damages rather than paid by the defendant company. I could go on in some detail about the implications but the legal arguments have been very well put, and they relate to many of the legal arguments that have been put forward in a domestic context.
I make this plea to the coalition Government. They have held high the flag of their moral commitment to the third world. How, consistently with the stand that they are making, can they allow the new proposals to go forward with all the consequences of injustice, hardship and suffering that would follow?
Lord Alton of Liverpool: My Lords, I wish briefly to raise my voice to support my noble friend Lady Coussins in moving this amendment, and in so doing mention that I am treasurer of the All-Party Parliamentary Friends of CAFOD group, one of the groups that has made representations about the amendments before the Committee.
Some 6 million people have died in the fighting in the Democratic Republic of the Congo over the past 30 years. A lot of the conflict and the human rights abuses, which continue to this day in places such as Goma and the Kivus, where rape is used daily as a weapon of war-a Question on that subject was raised on the Floor of your Lordships' House as recently as last week by the noble Baroness, Lady Kinnock-have been driven on by a culture of appropriation whereby mineral assets have been taken, particularly in the past by companies based in Belgium but also by some British companies, and in a culture of impunity.
Unless it is possible to test such cases in western courts, those violations will go on in the future. That is why it is so important to maintain at least this small
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Lord Avebury: My Lords, I do not believe that any cost whatever has fallen on public funds but I shall be as interested as the noble Lord, Lord Alton, to hear from the Minister about that aspect of the amendment. Both the noble Baroness, Lady Coussins, in moving the amendment, and my noble friend Lady Hooper, underlined the fact that we are talking about a very small number of cases that would not encourage the development of a litigation culture; quite the contrary. In the few cases that we are talking about, there would be a significant impact not only on the lives of many thousands of people who are directly affected but, as has also been emphasised, on corporate practices and international norms in business and human rights.
I declare an interest as president of the Peru Support Group, which was particularly concerned in the Monterrico Metals case described by the noble Lord, Lord Judd. This is a paradigm case because there is no doubt whatever that the poor indigenous inhabitants of Peru would have been totally unable to mount this action if the proposals in the Bill had come into effect. Is that really what your Lordships want-to say that people in the third world who are victims of appalling human rights abuses by United Kingdom or United Kingdom-based companies are not going to be able to bring proceedings in the courts of law? I do not believe that that is what your Lordships would like to happen. Therefore, I beg my noble friend to listen very carefully and come forward with proposals that, if they are not word for word on the lines of these amendments, at least convey their sense, as the noble Baroness, Lady Coussins, said.
Lord Elystan-Morgan: My Lords, I, too, support this amendment, which was presented with such lucidity and articulation by my noble friend Lady Coussins. The exact motivation behind the changes that are being incorporated into the Bill is not clear to me. Is it to save the public purse some money, or is there some other purpose? If it is a case of saving the public purse some money, what aspects of the possible results have been examined? Exactly what evidence has been collected? How satisfied are the Government that a net saving in that regard will be brought about? It is obviously not the Government's intention to deprive worthy people of a redress that they have at the moment, albeit in an imperfect state, as my noble friend Lord Pannick suggested. That cannot be the motivation, but undoubtedly that would be the result.
It is true that the number of cases is not immense, but justice is one and indivisible. The stain on the name of justice in these matters is considerable indeed. I remember in the early 1970s being a member of Lord Elwyn-Jones's chambers. He was briefed by some South
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Lord Stevenson of Balmacara: My Lords, this has been a very interesting debate that has been well supported all round the House. I hope the fact that so many noble Lords have spoken in support of these amendments will weigh on the Minister when he responds.
I would like to spend a few minutes talking about the dichotomy between the rhetoric that we have heard from the Government about the importance of human rights, which we support, and the impact of the measures before us. Under the existing regime, it is already extremely difficult for the cases that we have talked about to be brought in the UK. In the past 15 years, only nine or 10 such cases have been brought. However, these cases have had a significant impact not only on the lives of thousands of people directly affected but-this is important-on corporate practices and international norms in business and human rights.
"Governments of the United Kingdom and Colombia reaffirm their shared commitment to respect, protect, and promote human rights. We reaffirm our commitment to uphold the human rights treaties and agreements we are signatories to, in particular the Universal Declaration of Human Rights, and the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights".
I am sure the Minister and his Government want to match reality to that rhetoric. The problem is that, possibly as a result of an unintended consequence or possibly of trying to get one cap to fit all cases, the considered view from all those involved in this area is that the practical result of the proposed changes will be that it will be almost impossible for poor individuals and communities from the developing world to pursue justice in UK courts. We think that this is wrong in principle but also because of the message that it sends to multinational companies based in the UK. Our amendments would create an exemption so that vulnerable victims of human rights abuses in the developing world would still be able to bring cases to the UK. There is no evidence of any need to address the possibility of a spate of spurious claims here; the truth is that it is already very difficult to bring these kinds of cases against UK-based companies in our courts.
Amending the Bill will be essential if the UK is to meet its commitments on business and human rights and to avoid giving the impression that somehow the Government have gone soft on the way they wish to treat business that causes abuse overseas. The rhetoric is good. We know that the Government have consistently supported the UN "protect, respect and remedy" framework for business and human rights and the
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"States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing human rights-related claims against business, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy".
"The United Kingdom has placed human rights as central to and indivisible from the core values of British foreign policy. We believe the potential of business to impact on the human rights of individuals worldwide has only been fully recognised in recent years. The endorsement by the Human Rights Council of the UN Guiding Principles on business and human rights in June 2011 marks a high point of international consensus on the issue".
In light of the praise for Professor John Ruggie's achievements, it is vital that we keep open the chance of mounting human rights actions in the United Kingdom. The reality of today's world is that global companies play an increasingly important role and can impact on almost all aspects of our lives. While many UK transnational companies act responsibly, it is important that in situations where human rights abuses occur abroad, poor and vulnerable victims can still seek justice in our courts.
As the noble Baroness, Lady Coussins, said, the Government have already made an exception in the Bill for ATE in clinical negligence cases. Is it not possible to do the same for this limited set of cases? As has been mentioned, the mover and supporters of the amendment met last week the noble and learned Lord, Lord Wallace of Tankerness, and the noble Lord, Lord McNally, who I thank for their time and courtesy in listening to us. I came away from the meeting feeling that there was a willingness to find an accommodation on this issue. If the Minister is happy to signal his willingness to continue those discussions, I am sure that there will be a way of resolving the differences, and I look forward to having a chance to do that.
Lord McNally: My Lords, I pay tribute to the noble Baroness, Lady Coussins, and her record in this area. Looking down the list of noble Lords who have spoken in this debate, I see the names of many with whom I have been shoulder to shoulder in many debates. I do not think that there is any division between us on that.
To address the point made by the noble Lord, Lord Stevenson, about the Government's rhetoric on human rights, I shall, to quote Tony Blair, "leave it to history" to make judgments about the coalition Government. However, one thing that I am absolutely proud of is that in a time of great austerity the sustaining of our aid programme and the follow-on impact on human rights around the world will always be to our Government's credit-as, too, will their decision to implement the Bribery Act, to take the lead in international anti-corruption campaigns and to be strong advocates for human rights around the world. There is more than rhetoric in this Government's record on this issue.
I talked with the noble Baroness, Lady Coussins, and the noble Lord, Lord Stevenson, on these issues and, as they know, I am not convinced that the
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It is worth emphasising at this stage that the current system of recoverable success fees and recoverable ATE insurance premiums, with the consequence of high civil costs, is not seen in any other jurisdiction in the world. However, I should emphasise that while we should do all we can to ensure that UK business continues to flourish abroad, this will never be done at the expense of violating any of the rights and laws of the host country. The Government are committed to ensuring that UK companies continue to conduct themselves to the highest standards, especially when carrying out trade and transactions in other countries.
CFAs will continue to be available, but the Bill also extends another funding option, to which the noble Baroness, Lady Coussins, referred: the Government are making available alternative methods of funding-such as the use under Clause 44 of damage-based agreements, DBAs, which could be used to fund group actions against multinational companies. Some say that our proposals will decrease the number of these claims, while others, including the Confederation of British Industry and some American companies, are concerned that DBAs will in fact increase the number of such claims. The Government believe that they have the balance right between protecting access to justice and making costs more proportionate. Our aim has been to ensure that litigation is available to stop corporate harm.
It has been mentioned that we were among the champions of the Ruggie guidelines, and it is true that the Government strongly support the UN guiding principles on business and human rights that were developed by Professor Ruggie. We co-operated closely with him on his mandate and fully support the international working group that has been established to take his work forward. I was pleased that I was able to announce that support immediately after that report was published.
One of the problems that have been referred to is the disproportionate difference between the amounts at issue and the legal costs involved. The Trafigura case is often cited as an example where claimants would have been denied access to justice had our reforms already been in place. However, I must stress that once our reforms are implemented, overseas victims of alleged corporate harm by UK multinational companies will still be able to bring claims in England and Wales against such a company.
We are not, as some have suggested, denying access to justice; we are simply trying to restore a much-needed sense of proportion and fairness to the current CFA regime. I can only repeat the extraordinary costs that were claimed in the Trafigura case. The costs sought
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We are addressing the excessive costs that can be claimed. In addition, these amendments would not meet the objectives of our reform, which are to reduce litigation costs. Rather, the amendments would allow those costs to continue to escalate. The certification process proposed in the amendment opens up uncertainty and significant prospects of satellite litigation in individual cases around the criteria for certifying claims as being suitable for exemption.
Lord Judd: I am very grateful to the noble Lord for giving way and I would not question at all his personal sensitivity to the issues that have been raised. Over a lifetime, I have known that he cares deeply about these things. However, can he assure the House that in their considerations the Government have taken fully into account one of the complexities that have arisen since 2009, when the Rome II regulations were introduced? They mean that the damages are related to what normally prevails in the country in which the harm occurred, whereas the costs may well be related to what applies within the United Kingdom. This means that there is a huge obstacle to taking on a case of this kind because of the risks involved and what the bill might be if the costs had to be met by those endeavouring to make the claim.
Lord McNally: I am aware of that. As the noble Lord said, that issue was to a certain extent present in the Trafigura case, where 30,000 people each received £1,000 and the lawyer got-or tried to get- £100 million.
Lord Elystan-Morgan: I am most grateful to the noble Lord for giving way. Without detracting in any way from the point made by the noble Lord, Lord Judd, is not the difference between the damages counted and the costs incurred in many cases indicative of the inequality of arms between the situation of the claimants and that of the defendants, many of which are multinational companies with a gross turnover per annum greater than that of 50 of the least privileged countries in the United Nations?
Lord McNally: Part of the problem of answering a debate such as this is the horror stories, abuses and problems raised about the capability of multinational companies to misbehave. No one denies that. I have spent most of my life in politics being greatly suspicious of many such operations. We cannot funnel that down to a change in an area that, it has been admitted, has covered 10 cases in the past decade. I understand noble Lords' commitment to take on those abuses, but to suggest that the English legal system is in any way able to meet the point is to put too much of a burden on it.
As I told the noble Baroness, Lady Coussins, I do not believe that such cases will not be brought because often the motive is not profit; it is many of the motives that have been explained tonight. What is at stake for the companies concerned is often not money but reputation. I do not believe that we are creating an insurmountable barrier to take cases where English or Welsh companies are at fault, but I will draw the debate to the attention of my right honourable and learned friend the Lord Chancellor, because the speakers list should be respected. My right honourable and learned friend and I believe that the fear of the effect of what we are doing is exaggerated. The opportunity that the Bill offers for other forms of financing of litigation is underestimated, but I will ask him to read the debate, look at the arguments deployed and consider the amendments. For the moment, I ask the noble Baroness to withdraw her amendment.
Baroness Coussins: My Lords, I thank all noble Lords who have contributed to the debate and the Minister for his reply. I remain convinced that it would be much better to avoid an undesirable, unintended consequence than to worry about adding something to the Bill that might not be 100 per cent technically, strictly necessary. If the lawyers behind CAFOD, Oxfam and Amnesty are convinced that the amendment is necessary, the Government should take them seriously. I look forward to the Minister's response after he has spoken to his colleagues. This issue will not go away, but, for now, I am happy to withdraw the amendment.
To ask Her Majesty's Government what plans they have to address variations in health and social care support for people after stroke identified in the Care Quality Commission's special review, Supporting Life After Stroke.
Lord De Mauley: My Lords, I respectfully draw noble Lords' attention to the fact that, except for the noble Baroness, Lady Wheeler, and my noble friend the Minister, speeches are limited to three minutes.
Baroness Wheeler: My Lords, I am delighted to have secured this debate on the key issue of support in the community for people who have had a stroke and their carers. The Care Quality Commission report, Supporting Life After Stroke, was published a year ago this month, following a landmark special review by the commission, which charted what was happening in every primary care trust area in England.
I do not have a record of when I proposed the debate, but clearly patience has paid off. In fact, one year on and in the lead-up to the Government's promised spring White Paper on social care, consideration of the report's findings and proposed actions is timely indeed: both to address the widespread concerns about the impact that the major changes to the NHS will have on the huge progress that has been made in recent years; and to highlight the need for care pathways to address the need for long-term support for stroke survivors and not just help in the immediate period after hospital discharge.
Before moving to the report's findings, it is worth briefly providing a word of praise for the much beleaguered CQC itself. The special review is an incisive, excellent piece of work-precisely the type of national review report that the CQC should be undertaking-setting out a range of actions for service providers, commissioners and central government from its locally based assessments. However, there is doubt about the amount of meaningful follow-up work that has been done by the commission and indeed whether it will be able to undertake such review work in the future-but I will come back to that later.
For the record, I give the stark facts about stroke. Stroke is the third biggest killer, the largest single cause of severe adult disability in the UK, and the second major cause of dementia. There are about 110,000 strokes and 20,000 TIAs-that is, mini-strokes-per year in England and approximately 300,000 people are living with moderate to severe disability as a result of stroke. Stroke is also one of the most expensive conditions, with direct care costs to the NHS of £3 billion a year within a wider cost to the economy of £8 billion.
The central message of this debate, nearly five years since the start of the implementation of the 2005 national stroke strategy, is that there must be no turning back, no brake on the enormous progress that has been made and that we must keep up the momentum. As a carer of a severely disabled adult who most certainly would not have survived his major brain haemorrhage without the immediate care and treatment measures outlined in the strategy being in place, I can personally testify to the life-saving effectiveness of the strategy in the area where I live, and pay tribute to the marvellous skills of ambulance and hospital nursing, physiotherapists and medical staff in getting him through. We know that, as a result of the national strategy, that excellent early treatment experience is replicated in many stroke centres across the country. But we also know from the 2011 national stroke audit undertaken by the Royal College of Physicians that huge variations in standards of acute care still need to be addressed.
Similarly, the CQC report on community-based care for stroke survivors once they have left hospital found significant variations across England in the extent to which they are supported to cope with life after stroke. In many areas, the report found that people were unable to access the services they need when they need them. Early supported discharge, focusing on intensive rehabilitation in the home rather than in the hospital, was available in only 37 per cent of areas; 32 per cent of PCTs failed to commission physiotherapy in the community across the whole of
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The CQC also found major problems with people and their carers accessing services and support after hospital discharge; information packs not easy to follow or not including information about local services; carers not given information about local carer support or befriending schemes; information not available in relevant community languages other than English; helpline staff not trained to deal with people with communications problems such as aphasia; and, most common, a named contact for support which did not look across health, social and community care.
However, the overall CQC message is that, despite the problems it identified, much has been achieved in improving post-hospital support and many of the building blocks necessary to achieve a transformation in care are now in place. In the words of the CQC, the report shows that the barriers to effective care after transfers home can be overcome and improvements made to which can help people both to recover from and cope with life after stroke. The report reinforces my message about keeping up the momentum and ensuring that it is not lost in the light of the threats to improvements in post-hospital stroke services from substantial cuts to local social care budgets and the impact of the reorganisation of the NHS.
The CQC recommendations cover a wide range of actions to address the variations in service provision that it found. These include PCT service improvement plans to address the problems and, most importantly, to ensure that services are adapted to individual needs, such as for people who have little or no support from carers or family members, people in care homes, people with aphasia, and people from black and ethnic minority communities. From my experience as a carer, often battling to ensure that the various support services actually happen and join up, I shudder to think what happens to the many stroke survivors living on their own.
The authors of the CQC report highlighted the importance of the NHS stroke improvement programme and the 27 stroke care networks that operate at regional level. They have a key role to play in helping to improve longer-term stroke support in the weakest performing areas, and I hope that the Minister will be able to give reassurances that funding of the networks will continue following the current review period.
It is clear from the problems highlighted in the report-and the CQC stresses this-that strong national leadership and support will continue to be needed for the foreseeable future to support the changes in the longer-term stages of the stroke care pathway envisaged. I hope that the Minister, in his response, will be able to reassure the House that the national Commissioning Board will commit to ensuring that the key elements of the national strategy are incorporated into future guidance to commissioners of stroke services and that it will also ensure that the strategy continues to move forward to meet the challenges ahead.
On the question of leadership at national level, the Department of Health's continuing failure to appoint at least an interim national clinical lead for heart disease and stroke following the resignation of Sir Roger Boyle has caused much concern and has led to precisely the leadership vacuum that we must avoid at this critical transition phase. Moreover, the number of staff in the vascular team at the department has also significantly declined during this time. Meanwhile, there are still national clinical directors for other major areas such as cancer, diabetes and respiratory disease. Can the Minister explain how the Government justify not filling the heart disease and stroke post, even on an interim basis? How is this leadership role currently being undertaken, and how will he ensure that the Commissioning Board has the expertise to advise and deliver on stroke strategy without it?
In the time I have left, I have some key questions for the Minister arising from the report. First, I understand that the CQC's remit has changed since publication of this report and that the review team working on stroke has been disbanded. In the absence of the proposed targeted CQC inspections, as well as training and support for the weakest areas, how will the Minister ensure that all PCTs, now in their clusters, have reviewed the CQC local assessments and are implementing action plans? Is this the last stroke review that the CQC will undertake?
Secondly, consistent and authoritative data on stroke care once people leave hospital is vital to gauge what progress is being made. How will information on the quality and standard of stroke services be monitored and reported in the future, and will more information be collected on post-hospital stroke care and support?
Thirdly, I am sure that the Minister will join me in recognising the valuable work undertaken by the voluntary sector in providing stroke support services. I refer in particular to the Stroke Association, although I should also like to give a quick plug for the amazing work of my local TALK charity in Surrey for stroke survivors with aphasia. However, the removal of the ring-fenced conditions from last year's £15 million government grant to local authorities, combined with local authority budget cuts, uncertainties over NHS funding and future commissioning arrangements, will seriously threaten the viability and provision of services in the future. How will the Government ensure that local authorities provide adequate support for voluntary organisations and networks providing such vital community support for stroke recovery?
Fourthly, I draw your Lordships' and the Government's attention to the publication in May of the Stroke Association's forthcoming Daily Life survey as part of Action on Stroke Month. It is the largest survey of the life experience of stroke survivors across the UK. I am sure that the Minister will want to commit to working with the Stroke Association on the outcomes to ensure that the long-term support that stroke survivors need are improved.
I end with a hobby-horse of mine concerning stroke. We were told rather authoritatively by a number of medical, nursing and social care staff, and well-meaning others, that there was a two-year "real" improvement window in stroke care-in other words, if improvements
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Lord Lingfield:I am very grateful to the noble Baroness, Lady Wheeler, for securing this important debate. I declare an interest as chairman of the ARNI Trust, which deals with rehabilitation after stroke. The noble Baroness has reminded us that stroke is now ranked as the largest single cause of disability among adults in the United Kingdom. About a third of a million people are now living with moderate to severe consequential problems, and in the brief time allowed I want to touch on one new initiative concerning them.
I was privileged early last year to visit a community centre serving a wide area. Inevitably, among those who come every day just to chat, dine or use its amenities were a considerable number of stroke survivors. I was there to open a unique new stroke facility, which has been pioneering a novel approach developed by the ARNI Trust, and this is the use of fitness trainers. I have to say that hitherto I had thought of fitness trainers as well-muscled young men and women hired at some expense to put city executives through their paces. However, these were rather different. Each had undergone a rigorous course in teaching exercises suitable for stroke victims. They are not physicians or physiotherapists, of course, and the techniques that they teach are simple but innovative ones which relate to the daily life-needs of their patients. I shall give an example.
Many stroke survivors will tell you that they dread falling over because getting up unaided is usually impossible. At home, they often ring the emergency services to assist them, the alternative being possibly to lie on the floor for many hours until a carer arrives. The staff of the centre that I mentioned spend many thousands each year on hiring professional paramedics to turn out when a stroke victim has fallen over while there. This is a legal requirement. In the new facility, the fitness trainers teach a novel and safe technique, currently the subject of a clinical study by a group from the University of Exeter and Plymouth University. It is called IGO-"I get off the floor". Patients who have learnt it can get up unaided. It has been so successful that the centre now saves some £8,000 each year in paramedic costs, and the disabled people whom I interviewed are delighted with the new-found independence that such techniques can bring.
These trained fitness professionals are now teaching these techniques throughout the country, often in the homes of the stroke disabled, for there is evidence-and the noble Baroness, Lady Wheeler, touched on this-that some stroke victims can continue to make improvements
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Finally, evidence suggests that quite properly the vast majority of funding available for stroke nationally is directed towards the acute phases. In my view, a small funding adjustment towards long-term needs would lead to a greater emphasis on functional exercise after stroke.
Baroness Pitkeathley: My Lords, I thank my noble friend not only for securing this debate but for the wide-ranging way in which she introduced it. Her personal experience as a carer enriches our debates, and it is on the care experience that I want to focus in the few moments available to me.
She felt that the care he was receiving was so poor that she would take him home, and she thought that she would be better off doing that. Within days of taking him home, she felt that his condition had improved, and Ronald also received support there from district nurses and a physiotherapist. Olivia had to fight to get information and support. She said:
"It took months to determine what help we might be entitled to. I was passed from department to department, we were subjected to assessment after assessment and review after review, answering the same questions over and over again, the various departments procrastinating over every decision".
She is still convinced that she made the right decision to care for Ronald at home, but the lack of support for her meant that she had to give up paid work to care, and suffered then from stress and depression, providing round-the-clock care. The impact of both people losing their incomes forced them to sell their home and go into sheltered rented accommodation. Your Lordships may think that that is an extreme example but it is not. It is a common experience in some families.
One of the great difficulties about a sudden onset condition such as stroke is that carers have little time or opportunity to plan for caring responsibilities. Intensive support, or reablement as we often call it now, following hospital discharge, can make the difference between a more rapid recovery and the need for ongoing long-term care. Not only is it crucial to support the independence of the stroke sufferer but for family members, too. Many families can juggle short periods of intensive caring and ongoing lower levels of support with paid work. They are very willing to do that, and to juggle it with other family commitments. But the lack of rehabilitation services can extend the length and intensity of the caring responsiblities of families. Evidence from Carers UK shows that many families are at risk of longer-term penalities: falling out of work and risking isolation, ill health and financial hardship.
In addition to support with personal care and mobility, stroke survivors often experience communication difficulties and changes in behaviour. That, too, can
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Lord Rodgers of Quarry Bank: My Lords, this debate is the latest in a series of short debates in which the House has explored the causes and consequences of stroke. Of today's list, three-the noble Baroness, Lady Rendell, the noble Lord, Lord Clinton-Davis, and I-spoke at the first of them on 23 May 2006, arising from the pioneering National Audit Office report Reducing Brain Damage: Faster access to better stroke care.
The noble Lord, Lord Clinton-Davis, and I drew from our personal experience as victims-a term I do not like, but it is used. For my part, I was not physically disabled but my speaking, reading, writing and comprehension were severely affected. I needed two and a half years of speech therapy to recover my capacity, and longer for my confidence.
In her ministerial reply in 2006, the noble Baroness, Lady Royall of Blaisdon, gave a sympathetic response, saying that the hospital to which I had been taken following my stroke five years earlier used to have one of the worst performing stroke services in the country but that it had been turned round to one of the best.
I say that because stroke had been grossly neglected by the NHS until the late 1990s. Since then the perception of stroke has been transformed and I pay tribute to the Stroke Association as it has played an important campaigning role. I also pay tribute to Sir Roger Boyle for his leadership of the national stroke strategy. I am sorry that he has felt unable to continue his role during these turbulent NHS times. Among unfinished business is to ensure that GPs can recognise and take seriously the symptoms of stroke in a patient and to contribute towards the rehabilitation and care of stroke victims.
In reading the 2010 stroke sentinel audit reports, I have found no reference to GPs and only one in the Care Quality Commission report, in passing, on the role of GP consortia in the new commissioning procedures. I would be grateful for the Minister to bring up to date this aspect of the national stroke strategy-involving GPs in stroke-and explain where responsibility will lie on completion of the current Health and Social Care Bill.
Baroness Masham of Ilton: My Lords, I thank the noble Baroness, Lady Wheeler, for her timely question. People up and down the country are concerned about the standards of care there will be for people with
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My husband had a stroke sitting in his armchair watching cricket; our previous Black Rod had a stroke in bed. It can happen at any time. I am pleased that there have been improvements in recent years, but could these be at risk? People are living longer post-stroke with a higher level of need. More than 900,000 people in England are living with the effects of stroke, with half of them being dependent on other people for help with everyday activities.
Early intervention of speech and language therapy is crucial and has a direct impact on the length of stay in hospital and the outcomes for the patient. However, anecdotal evidence shows that many speech and language therapists' posts are becoming frozen or lost, and budgets are being cut by between 9 and 33 per cent. More than one-third of people have persistent speech, language or communication problems after a stroke. Patients are sometimes left over a weekend with no food or fluids with a sign on their bed, "Nil by mouth", and forgotten if they have not been assessed by a speech therapist. Hospitals must do better. Patients with dysphagia are at risk of serious complications, developing respiratory infection or pneumonia, and suffering from undernourishment and dehydration.
Prevention, if possible, is the best option. People with atrial fibrillation-irregular pulse-are five times more likely to suffer a stroke. A quality standard will raise awareness of the condition among commissioners and GPs. Everyone should be taught to take their pulse and to help others do so. Children could learn this at school and could then check their parents. Information on AF and stroke prevention should always be available. Taking blood pressure with a BP machine will not show an irregular pulse.
The CQC's special review identified a number of areas that service providers and commissioners could focus on to drive improvements. Work at national level could support these improvements. I hope that the Government will put this into practice.
Baroness Rendell of Babergh: My Lords, I, too, congratulate my noble friend Lady Wheeler on instituting this timely and needed debate. In recent years, as the Care Quality Commission's review points out, attitudes to stroke and treatment for stroke have improved enormously, with better access to specialist stroke units, greater use of thrombolysis and improved working across care and social services. People are able to leave hospital earlier and receive rehabilitation when they return home. Despite this progress in recovery, data collected by the national sentinel stroke audit have shown that it is after that return home that people tended to feel abandoned. More than half had unmet needs for care and more than half wanted more information about strokes. The audit found that 48 per cent of PCT areas had a two-week average wait for community-based speech and language therapy, even though one-third of stroke survivors experienced communication problems after stroke. It is on this aspect of rehabilitation that I will concentrate briefly today.
Complaints from stroke survivors included a failure to find what help could be got, a failure to be "treated like a human being", and of a lack of respect for people's dignity, which came about through a failure to understand another culture. One woman stroke survivor had difficulty communicating because although she spoke English her mother tongue was Urdu. We have heard much lately about the desirability of immigrants who come to the United Kingdom learning our language, but here we are not talking about learning English but about speaking it to a high level of comprehension and being understood. The woman who was an Urdu speaker could speak English and no doubt read it but not confidently when she needed to take information from the printed word or from rapidly imparted speech.
Only a third of the areas covered provide information in languages other than English. Audio and DVD access is available to stroke survivors only in one-fifth of cases. Many services provide limited support and information only for people of working age, despite stroke being the largest cause of disability in adults and particularly in older people. With three main foreign languages and 16 main immigrant languages spoken in the United Kingdom, surely the time has come to remedy the situation of stroke survivors by providing those who require it with the requisite information in translation, for example, into Urdu and Bengali among others.
Good information about what stroke is and what can be done is often still lacking. The national stroke strategy, now three years old, recognises that people's needs require regular reassessment so that changes can be taken into account. A review should take place six weeks after someone has left hospital, and again after six months, and PCTs should set out that the people who have had a stroke and their carers should be involved in these reviews. Only one in 10 of the information packs given to stroke survivors mentions the reviews, or people's right to ask for a reassessment if their needs change. Many must be unaware that the reviews should take place. How much more obscure and difficult to follow are the details of reassessment for those who have to struggle through information in a language that is at the best of times difficult for them.
Baroness Browning: My Lords, I, too, welcome the opportunity that the noble Baroness, Lady Wheeler, has given us to discuss this subject. I was a member of the Public Accounts Committee in 2006 when we received the National Audit office report, and again in 2010 when we reviewed the progress of that report. It is concerning to think that some of the concerns of the Public Accounts Committee in 2010 were picked up in the CQC report. I will pick up on one or two of them.
"The Department lacks evidence about what types of post-hospital support and long-term care are most effective for stroke patients and does not have a clear plan as to how such care should be funded".
I hope that my noble friend this evening will be able to assure us that that has been taken on board, particularly in the light of the changes to the health service. Also,
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There is also the question of the joint care plan, which is picked up in the CQC report, and particularly, as part of that care plan, the need for regular reviews. I think the point was very well made about this two-year cut-off point. In fact, the CQC report shows that those plans which incorporate the structure of six-week reviews and six-monthly reviews are not only ongoing but that the best quality care is usually delivered as well. Yet we see that only two-thirds of people had six-weekly reviews, 44 per cent had six-monthly reviews and only one in 10 information packs given to patients on discharge mentioned the reviews at all.
At the UK stroke forum in December last year, the Secretary of State for Health announced that work will begin this year on the development of an outcomes strategy for cardiovascular disease. Will the outcomes strategy for cardiovascular disease replace or complement existing national strategies, such as the stroke strategy? How will it focus on the areas most in need of improvement, such as longer term care and support for stroke survivors? I hope that when he replies my noble friend will also be able to tell us what progress has been made on the development of the outcomes strategy for cardiovascular disease.
Lord Clinton-Davis: My Lords, I thank my noble friend for promoting this debate. I know only too well that a stroke can have devastating effects. Often, it kills. It can often lead to serious disability, mental and physical, and it can disrupt families. The commitment to long-term support is vital, as is the training of carers in suitable cases. The Government should indicate their unwavering support for the recommendations of the CQC report, and there should not be wide discrepancies in the country in the care of stroke sufferers. In my experience, physiotherapy is an absolute must, yet it is not always available on the scale necessary or sometimes not at all. Speech and language therapy and rehabilitation are too often woefully inadequate. Local services should be more widely known. So many organisations-PCTs, adult social services and providers-have a substantial role to play, which should be recognised much more widely.
There is so much to say about this and I thank my noble friend Lord Rodgers. He and I have suffered from this. Unfortunately, there is so little time to say everything, but this scourge demands a much more positive response from the Government. They should recognise how valuable this work is. I join with others in paying tribute to the Stroke Association for the work that it has done in focusing upon the essential issues.
Baroness Wall of New Barnet: My Lords, I, too, congratulate my noble friend Lady Wheeler on picking an opportune moment for this debate and on her concentration on after-stroke care. If you talk to clinicians involved in stroke, they say that the treatment you get immediately has a major effect on what may happen later on, so I want to concentrate on the situation in London. Many noble Lords will know that in London 6,000 people a year suffer a stroke. London is the region that has done most to improve its management of acute stroke. In the past, if you had a stroke in London, you could have been taken to any one of the 38 hospitals which have an A&E department. This fragmented care meant that too many patients were not getting the care and rehabilitation they needed. Over the past two years, London has reorganised stroke care. If you suffer a stroke now in London, you are taken rapidly to one of eight specialist hyperacute units capable of delivering the highest quality care from an expert team of clinicians. Following this, you will receive specialist, multitherapy rehabilitation care and ongoing medical supervision in one of 24 new stroke units.
The results show a dramatic improvement. The new arrangements will save between 300 and 500 lives a year with a commensurate reduction in disability. London has moved from a poorly performing system to one which is now not just the best stroke system in the UK, but is comparable to the best in the world. Dame Ruth Carnell, the chief executive of SHA London, has many things to be proud of but, in my view, none more than driving the reconfiguration of the stroke services across London.
I need to declare an interest when advising the House that Barnet and Chase Farm Hospital's acute stroke unit, based on Spruce Ward at Barnet Hospital, is the first unit in London to be accredited as meeting all the standards set by the London cardiac and stroke networks.
The noble Baroness, Lady Wheeler, drew our attention to the CQC report, which reminds us of the need to ensure an equal focus is given to the development of stroke services outside hospital, and I support that. As ever, the rehabilitation end of the pathway is getting less attention than the acute, but it is important that stroke care is given uniformly, and I ask the Minister to take on board that inequality. Is the London model of hyper and acute stroke services one that the Government are minded to replicate and encourage across England and Wales?
All those who suffer this awful and possibly life-changing illness deserve the very best acute services. As the CQC says, the further extension of this superb treatment and care in supporting their lives is essential.
Baroness Gould of Potternewton: My Lords, there is no question that the 2010 national stroke strategy has heightened the knowledge of stroke across the country, but there is still evidence of gaps in long-term provision.
I will concentrate on aphasia, which is an outcome, among others, that my daughter still suffers from 15 years after having a stroke. Aphasia can take the
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There are currently about 250,000 people in the UK with aphasia. However, statistics are notoriously difficult to collect. This is illustrated by the findings of the Care Quality Commission. Only 7 per cent of adult social services departments reported including people with aphasia in designing stroke information. Eighty-one per cent of PCTs have not tried to estimate how many people with aphasia live in their area. All this is further compounded by the fact that communications disability is not a recognised disability and so is not monitored. People with aphasia are invisible. A simple solution would be to monitor how many people have aphasia at the time of the stroke, at discharge from hospital and when under the care of social services.
Key to the provision of services for people with aphasia are the voluntary bodies, and I want to refer to one specific organisation, Connect, of which my daughter is a board member. Connect is a charity for people living with aphasia, which offers information and support for carers and health professionals. Crucially, it recognises people with aphasia as experts and as such has pioneered innovative ways of working in partnership with people with aphasia. It aspires to enhance and extend statutory service provision once statutory services end and offer the opportunity to re-engage with life beyond services. This is in addition to the provision of a statutory workforce and a passionate and highly skilled workforce of volunteers supporting service development and delivery. At the same time it aims to reduce costs for national services by reduced visits to the GP as a result of improved mood, greater self-esteem and increased social participation as well as reduced dependency on speech and language therapy, enabling earlier discharge from statutory services.
It is not all about specialist rehabilitation, important as that is, but sometimes about low-cost, accessible, creative, peer-led activities such as drop-in, befriending and awareness provided by a third sector organisation. However, real support is required to help organisations such as Connect and the Stroke Association continue to provide these vital services in the long term. Stroke is not a one-off event but a life with complex disabilities.
Baroness Thornton: My Lords, I congratulate my noble friend Lady Wheeler on being patient enough to allow this debate to take place tonight. I thank all noble Lords who have taken part in this debate.
When Andrew Lansley was appointed to the Cabinet by David Cameron in May 2010, we might have expected that the new Health Secretary would take the trouble to introduce himself to the leading players in his department. I have to say that this was not the case. Sir Roger Boyle, who had been toiling away as the Government's national director for heart disease and stroke for more than a decade, did not actually meet the Secretary of State until just before he parted company with the department. As someone who judges
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Sir Roger Boyle was appointed as national director for heart disease in March 2000. He led the implementation of the National Service Framework for Coronary Heart Disease, which led to a 50 per cent cut in deaths from heart attacks. That has been in the news very recently. He published the NationalStrokeStrategy in December 2007, and indeed was working on the implementation of that stroke strategy when he left the department last summer. My question to the Minister is this: I understand that Sir Roger Boyle has not been replaced. If he has not been, why not? Indeed, what does that say about the priorities of the department on the issue of stroke?
It is a pity that Mr Lansley did not make more of an effort to find out what Sir Roger was up to. He would have learnt some important lessons about the NHS and what it had achieved without the benefit of the market revolution that is being ushered in under the NHS reforms before the House.
The second question I would like to ask the Minister is what future, therefore, will the national stroke strategy have in a reformed NHS, and who will be responsible for its implementation under the proposed new system?
My third question picks up the points made by my noble friend Lady Wall. It concerns whether something as successful as the London stroke strategy could be replicated and how that would be achieved. I make no apology for repeating the question that I have been asking, on and off, at every opportunity over the last year or so, because I think that so far we have not received a satisfactory answer. The London stroke strategy was achieved through a London-wide strategic plan driven by clinical co-operation. I would like to know how, and in what timeframe, such a strategy would be possible under the new levels of decision-making bureaucracy and, some might even say, fragmentation that are being proposed by the new Bill.
Would there be a great risk that the clinical competition that allowed the London strategy to move forward, if it were to be an economic or financial competition, would have to be based on the failure of some centres, to allow others to emerge as winners? That is my understanding of how things would have to move forward. I hate to say this to my noble friend Lady Wall, but it seems at present to be less rather than more likely under the new regime.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, I am delighted that the noble Baroness, Lady Wheeler, has been successful in securing a debate on stroke care, and I thank her for introducing the subject so ably. As demonstrated today by the number and quality of contributions made by noble Lords, it is an area of great interest and one that it is vital to keep in the public eye. I shall do my best to cover as many
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Stroke care has witnessed huge improvements over the past few years and many thousands of people have benefited. Stroke patients are getting treatment that is faster and better than ever before and data suggest that improvements are continuing. I pay tribute to the work of Sir Roger Boyle during his time as national clinical director. The latest data show that over 80 per cent of stroke patients are spending the majority of their hospital stay on a stroke unit, and the management of high risk transient ischaemic attack patients has also improved by 20 per cent since 2009. Access to immediate brain scanning has improved considerably and more patients are receiving thrombolysis giving them a better chance of regaining their independence following a stroke. There has been the very successful campaign to raise awareness of stroke-the Act FAST campaign.
We want the progress underway to continue but we also know, as was pointed out by the noble Baroness, Lady Pitkeathley, that we need to do more to improve support for people after stroke. As we acknowledged when the Care Quality Commission published its report last year, there is still more to do in ironing out the variations in stroke care, particularly in the support provided to patients when they leave hospital.
The noble Baroness, Lady Wheeler, asked about monitoring of outcomes with the benefit of robust information. At a national level, our focus on outcomes through the NHS, public health and adult social care outcomes frameworks sets out the areas we want to improve. Stroke specifically features in two parts of the NHS outcomes framework in terms of reducing premature mortality and in recovery from major illness.
Noble Lords will be interested to hear that the stroke indicator on recovery has been developed in collaboration with several organisations, including clinicians, academics and the NHS. The indicator, based on the modified Rankin scale, will assess the patient's recovery from stroke after six months. It will provide an incentive for the NHS and social services to work together, getting the right services in place so that when patients leave hospital they have the support they need to make the best possible recovery. I hope that that reassures those noble Lords who are afraid that care will be fragmented. This outcomes framework will drive services in the opposite direction.
The social care outcomes framework is helping to gauge the progress made by local services and drive up standards across the country. One of the areas this framework covers is reducing the need for care and support and delaying dependency. This will help people to live healthy independent lives and properly manage any health needs. Local authorities will be able to compare their services with those of other authorities around the country and make improvements based on what has been proven to work elsewhere, integrating care and working together to provide care that suits individual patients. For stroke survivors, this means providing access to the kind of support that they need to enjoy the best possible quality of life after their stroke.
Building on the national stroke strategy, the NICE quality standard for stroke, which has been mentioned by a number of noble Lords, has been developed with patients, commissioners and leading doctors. This provides an authoritative definition of what high quality care for stroke actually means. They are the measures of quality that matter most to patients and the NICE quality standard for stroke recognises the key role that rehabilitation plays in making sure people can live their lives as fully as possible after their stroke.
My noble friend Lady Browning suggested that there is perhaps inadequate understanding of what patients need in care settings. The NHS, through the stroke improvement programme and the 28 stroke networks in England, is working to make sure that stroke care improves at all stages of the patient pathway. The stroke networks connect different organisations and teams that have roles to play when someone has a stroke so that patients can be sure of co-ordinated management from the moment they are first in touch with a doctor or nurse and throughout their lives as a stroke survivor. This whole approach takes the needs and wishes of stroke survivors and their carers into account when delivering these services. I should like to reassure the noble Baroness, Lady Wheeler, about funding of the networks. Funding is in place for 2012-13. The future of the networks is being actively considered as part of the development of the NHS Commissioning Board.
The stroke improvement programme and the stroke networks have made good progress in getting the stroke strategy up and running, and they have done the same with the NICE quality standard. Patients now see better acute care as a result of both. Attention is now being focused on improving care for patients who have left hospital. The accelerating stroke improvement programme was developed specifically to improve care in areas where progress needs to be made faster and is looking at improving post-hospital and long-term care. The stroke improvement programme, working with the stroke networks, is delivering this.
Accelerating stroke improvement is concentrating on four key areas of post hospital care: that is, providing early supported discharge; making sure patients and carers have a joint care plan on discharge from hospital, which was mentioned by my noble friend Lady Browning; making sure stroke survivors have a review six months after leaving hospital; and making sure psychological support is provided for those who have mood, behaviour or cognitive disturbance.
One example of where a stroke network has been working well with commissioners to improve access to stroke community services is south London. Through the ASI programme, the network has developed a service specification for early supported discharge and community services, and has helped commissioners to make the case for change. What is more, analysing data from the CQC review, the stroke network was able to identify areas that needed to do more in the provision of post-hospital services. This has resulted in one of the care trusts commissioning a stroke community rehabilitation service, which is an excellent example of how the CQC review has actually driven improvements in services.
A number of questions were put to me. The noble Baroness, Lady Wheeler, asked about clinical leadership in this area, a point also raised by the noble Baroness, Lady Thornton. The replacement of the National Clinical Director for Heart Disease and Stroke is being considered as part of the development of the NHS Commissioning Board, but I would just say generally that improving stroke services is a priority for the Government, and there should be no doubt about that. It is a priority against which we shall hold the NHS Commissioning Board to account. Tackling premature mortality from stroke is an area for improvement in both the NHS outcomes framework and the public health outcomes framework.
The noble Baroness, Lady Wheeler, mentioned the Stroke Association, and again I pay tribute to its work. My officials meet its representatives on a very regular basis. The local stroke networks are working with clinical commissioning groups and PCT clusters to ensure that improvements are made in stroke services, including those recommended by the CQC. I was asked how improvements in quality will be monitored. There are two audits running this year. The Sentinel Stroke Audit and SINAP will both publish their results, which will help commissioners and providers of stroke care to monitor and improve their services, helped by the local stroke networks. The noble Baronesses, Lady Wall and Lady Thornton, asked whether we agree with the hyper-acute model that has been adopted in London. We certainly acknowledge that the reconfiguration of stroke services in London has produced very good results. The Stroke Improvement Programme works through local stroke networks, which are responsible for disseminating good practice across the country. They have done so with the London example very much in mind and, indeed, other examples where reconfiguration has delivered better stroke care.
The noble Baronesses, Lady Masham, Lady Gould and Lady Rendell, my noble friend Lord Rodgers and the noble Lord, Lord Clinton-Davis, all spoke of aphasia services and speech and language therapy. Stroke survivors should receive care and support from staff with the skills and competence to meet their needs, ensuring that those with communication difficulties such as aphasia have opportunities to return to a full life back in their communities. A good example of working with those who have aphasia is the Access to Life project in Cornwall, run by Connect. Twenty people with aphasia have been trained to provide one-to-one support to others with aphasia at home or in hospital, which helps those with aphasia grow in confidence in the way they communicate, and so reduces their risk of social isolation, a point well made by my noble friend Lord Rodgers.
The noble Baroness, Lady Rendell, spoke about entitlement to reviews and reassessments. Patients should have reviews at six weeks and six months. The NHS outcomes framework will include an indicator in the recovery domain to ensure that patients are reviewed at six months, as I have mentioned. The noble Baroness, Lady Pitkeathley, referred to the needs of carers. Carers play a critical role in ensuring that stroke survivors enjoy the best possible quality of life. Local authorities, working with PCTs, should together make sure that
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We want our stroke services right across the pathway to match the very best in the world. As I have said, huge improvements have been made to that end, but significant improvements still need to be made. I have given a couple of examples of what is being done to address this, and there are many more examples from around the country of services continuing to improve. But we are not stopping here. Identifying how we can deliver better outcomes in cardiovascular disease, including stroke, is a key task. This is one of our biggest killers and causes of adult disability. That is why my right honourable friend the Secretary of State for Health recently announced the development of an outcomes strategy for cardiovascular disease, building on existing strategies and the national service framework. I hope that the noble Baroness, Lady Wheeler, will see this as good news.
The aim of the strategy is to create a joined-up approach across the NHS, public health and social care to improve outcomes for patients with CVD, which includes stroke survivors. This will mean even more stroke survivors living active and fulfilling lives.
"( ) The amendments made by this section do not apply in relation to proceedings which include a claim for damages for respiratory disease or illness (whether or not resulting in death) arising from industrial exposure to harmful substance."
Lord Alton of Liverpool: My Lords, earlier in our Committee's proceedings today, the noble Lords, Lord Beecham and Lord Newton of Braintree, were good enough to provide a curtain raiser for the amendment that we are about to consider. Amendments 137A, 156A and 156B fall in Clauses 43, 45 and 46 and happily enjoy all-party support from all parts of your Lordships' House. I am grateful particularly to my noble friend Lord Wigley and the noble Lords, Lord Avebury and Lord Bach, as fellow signatories to the amendment. I should also say that the noble Lord, Lord Newton of Braintree, asked me to add that he, too, is a firm supporter of the amendment, as are my noble and learned friend Lady Butler-Sloss and my
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At the outset, I would like to pay tribute to the Asbestos Victims Support Group Forum UK and especially to Mr Tony Whitston, who took the trouble to come to Westminster to meet my noble friends Lord Wigley and Lord Avebury and myself-I know that he has also briefed the noble Lord, Lord Bach-and to set out the concern of mesothelioma victims, which he did with great clarity and with passion.
As the Bill currently stands, these mesothelioma sufferers, whose life expectancy is nine to 12 months from diagnosis, will be required to surrender 25 per cent of general damages-the damages average about £65,000-in success fees. These amendments would permit those suffering from an asbestos-related illness or other respiratory diseases to recover success fees and "after the event" insurance from a defendant in a successful claim for damages. However, I would like to split my remarks this evening into mentioning something about the background to this issue; secondly, something about the effects of these amendments; and, finally, four reasons why I hope that the amendments will commend themselves to the Committee and to the Government.
Up until 1995, when conditional fee agreements were introduced, most mesothelioma sufferers, along with many personal injury claimants of modest means, used legal aid to seek justice in the courts. In 1949, an estimated 80 per cent of the population satisfied the income criteria for legal aid, but by 1990 only 48 per cent qualified. As middle-income claimants were increasingly denied access to justice and given the Government's determination to cut the cost of legal aid, in 1995 CFAs were introduced. Between 1995 and 2000, the success fee and "after the event" insurance were paid by claimants, take-up of CFAs was understandably limited and, wherever possible, mesothelioma cases were still run under legal aid. Trade unions then stepped in to provide additional support for many victims.
When the Access to Justice Act 1999 became effective, on 1 April 2000, the new CFA regime allowed for recovery of success fees and ATE insurance to make up for the abolition of legal aid for most personal injury cases. Under the previous legal aid regime, solicitors were paid for their work even if they lost the case, which allowed them to take on difficult but meritorious cases. The new CFA regime changed the funding arrangements by making provision for success fees, which in many cases have been fixed.
Without doubt, access to justice was certainly improved for everyone, including mesothelioma sufferers, under the new CFA regime from 2000 onwards. Put bluntly, solicitors and barristers were willing to take on riskier cases because the rewards were greater. Be that as it may, the important aspect is that those potential litigants
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"There is general consensus that CFAs have increased access to justice for those who might otherwise not have been able to afford to bring a claim since they became enforceable in 1995, and particularly after the Access to Justice reforms which made CFAs an especially attractive funding method for claimants".
It is against this background of change that we are considering the Government's proposals on legal aid, success fees and "after the event" insurance and, in particular, how the new dispensation, as set out in Clauses 43, 45 and 46 will impact on those who suffer from mesothelioma; and why these amendments, tabled with all-party support, deserve the support of the Committee. I hope that the Government, at least in these particular circumstances, despite what the Minister said earlier-that he was inclined to reject any derogation at all from that which has been laid before the Committee-will be prepared to think again.
As currently drafted, Clause 43 provides for success fees to be paid by the winning claimant, not the losing defendant. A success fee is not, as is frequently implied, a bonus for winning the case, or a serendipitous stroke of luck like an unexpected windfall or a win on the lottery. The award of a success fee represents two things. First, on an obvious but important point, it says that the claimant has succeeded in winning their case. The claim is found to be justified in its inception and vindicated in proceeding through its course. Conversely, by extension, the defendant is found to have been wrong as regards the substance of the claim; wrong to seek to defend the claim; and wrong to pass over the opportunity to settle the case at some point in the proceedings-a point which my noble friend Lord Martin made earlier. Their conduct is penalised by having to pay the claimant's costs. Secondly, the granting of a success fee is a reward for the risk that those acting on the claimant's behalf have borne in pursuing the claim. The success fee underlines the importance of giving the claimant financial support at some of the most difficult times in people's lives-and times do not come much more difficult than when you are diagnosed as having a disease that will give you just nine months more to live.
Success fees are calculated as a percentage of base costs. Hitherto, CFAs have enabled meritorious but difficult cases to be investigated and pursued. Most importantly, this meant that test cases, many of which are launched by defendants, may be properly contested. Our common law system that is so cherished depends upon such cases. It is worth reflecting on how many cases over the past decade and more have come before not only the High Court, but the Court of Appeal and Supreme Court under CFA arrangements. These funding arrangements serve to advance and develop case law, but, most of all, ensure that the claimant has access to justice in the highest courts, as well as at the lower end
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It would be iniquitous if in future claimants are to pay the success fee and will have to underwrite the investigations into cases that are not pursued, or cases which are lost. As a matter of justice, it is fairer that wealthy insurers, more able to spread the risk, should fund a system whose purpose is to ensure access to justice, without which solicitors would be too risk-averse and many cases not undertaken.
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