Committee (3rd Day)
Relevant documents: 21st Report from the Constitution Committee, 22nd Report from the Joint Committee on Human Rights, 21st and 22nd Reports from the Delegated Powers Committee.
Clause 8 : General cases
21: Clause 8, page 5, line 31, leave out paragraph (a) and insert—
“(a) they are not specifically excluded under Schedule 1, and”
My Lords, perhaps the noble Baroness should be aware that domestic matters will come later. I have, if not by my bedside at least on my bookshelf, the splendid volume The Rule of Law by the late and most distinguished Lord Bingham. I was struck by one quotation in that book from the chapter on dispute resolution, in which the author made a case with compelling clarity. He stated:
“Legal aid is a service which the modern state owes to its citizens as a matter of principle. It is part of the protection of the citizen’s individuality which, in our modern conception of the relationship between the citizen and the State, can be claimed by those citizens who are too weak to protect themselves. Just as the modern State tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc., so it should protect them when legal difficulties arise. Indeed, the case for such protection is stronger than the case for any other form of protection. The State is not responsible for the outbreak of epidemics, for old age or economic crises. But the State is responsible for the law. That law again is made for the protection of all citizens, poor and rich alike. It is therefore the duty of the State to make its machinery work alike, for the rich and the poor”.
Lord Justice Jackson, on whose report the Government rely heavily for much of the Bill, particularly Parts 1 and 2, was implicitly very supportive of that definition. He was certainly very clear that the scope of and eligibility for legal aid should not be reduced.
The Bill seeks, in effect, to turn on their head some provisions of the Access to Justice Act 1999, particularly those parts to do with the availability of legal aid, which commanded all-party support. The Access to Justice Act indicated which services the Community Legal Service would not provide and Section 4(2) of that Act provided that legal assistance would be available in all other areas. This Bill seeks to reverse that position and make legal aid provision a matter of exception rather than of course. It is that aspect that these amendments address. Their effect would be to reverse the way that the Government are putting matters. Instead of listing only matters that would be eligible for legal aid, they exclude everything except those matters that are contained within the clause.
There will be a further debate, which my noble friend Lord Bach will initiate, about the procedures to change how the clause we are currently debating might be amended if it stands. However, to fix at a particular point in time an exclusive list of areas of law that should be eligible for legal aid is profoundly mistaken. After all, the law, like society itself, is not static. When I qualified as a solicitor 44 years ago, there were whole areas of law that are now justiciable and part of everyday life which were not recognised at all. There was effectively nothing in the way of equality legislation or legislation affecting discrimination or disability. There was little, if anything, explicitly around the human rights or environmental agendas. Employment law was effectively in its infancy. I well remember the Redundancy Payments Act 1965 and, for a time, giving lectures on what was then developing as employment law. In all these areas, legal assistance, legal advice and legal aid ultimately came to be provided.
We cannot say at this point that similar situations will not arise in future and that there will not be similar changes in the law which should give rise to a right to legal aid provision. The presumption that the Bill makes is that legal aid is not to be available. We on this side submit that that is the wrong presumption. The presumption should be that legal aid should be made available unless it is decided, for reasons of economy or other reasons, to exempt particular matters. That has happened in the past under the previous Government and I have no doubt that there will be occasions when it might be justifiable in the future. However, I submit that the Bill is antithetical to that very clear call, cited with such approval by Lord Bingham, for legal aid and access to justice to be available to all in significant areas of public policy and every-day life. I beg to move.
My Lords, Amendment 21 would have the effect of removing Part 1, Schedule 1 and bringing within the scope of legal aid, civil legal services available for all categories of law except those excluded in Parts 2 and 3. Broadly speaking, these amendments seek to reinstate the approach to the scope of civil legal aid under the Access to Justice Act 1999—I think that the noble Lord, Lord Beecham, readily acknowledged that—which provided that most categories were in scope of funding except for those limited matters set out in Schedule 2. As noble Lords will appreciate, this would significantly impact on the savings and fundamentally defeats the object of the reforms. We have never hidden the fact that the aim of these reforms is not just to save public expenditure, given the position with the public finances, but to encourage alternatives to a legal settlement of disputes, not least through mediation. My right honourable friend the Lord Chancellor is attempting to reverse the trend on the part of many in our society over the past 20 years to see litigation—and tax-funded litigation, at that—as the first option, and we have gone about this in a way that moves away from the 1999 Act.
The Government have undertaken a comprehensive review of legal aid, have published impact and equality assessments and received nearly 5,000 responses. We have taken into account the importance of the issue, the litigant’s ability to present their own case, including their vulnerability, the availability of alternative sources of funding, and the availability of other routes to resolution. We have never hidden the fact that this is a change from the 1999 Act, but one which retains access to justice while coming to terms with economic reality. We have prioritised funding so that civil legal services as set out in Part 1 of Schedule 1 will be available in the highest priority cases; for example, where a person’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or where children may be taken into care. I therefore urge the noble Lord to withdraw the amendment.
With all respect to the Minister, that is not a very satisfactory reply. In the first place, to suggest that the whole purpose of these changes is to avoid litigation as the first option mistakes the nature of the system. It is not only legal aid and representation that will disappear under these provisions but legal advice and assistance, which often prevent cases going to court. In many cases such measures avoid what I and many observers fear will happen; namely, a significant increase in litigants in person. That is likely to lead to considerable delays, the clogging up of the courts, will be inefficient and, for that matter, costly. The noble Lord airily cited the 5,000 responses received to the consultation paper. He did not tell us how many of those responses supported the thrust of the consultation paper. The suggestion is that about 90 per cent of respondents were very much opposed to the proposals.
In any event, there is another issue. The Government are in effect tying their hands and those of their successors on what might ultimately be thought to be desirable to be brought within scope. That will now require primary legislation to amend the Bill, if it is enacted, on those points. No utility is served by that process. It is always open to Governments to change eligibility if they choose to do so and to take matters out of scope, but we are now seeing an attempt to fix the situation as it now is—to imprison the present system in amber, as it were. That makes change unnecessarily difficult should the situation in society as a whole change and require further alteration.
This matter goes to the heart of the Bill, along with the next amendments to be moved by my noble friend. In the circumstances, I will not push this to a vote at this stage, and I beg leave to withdraw the amendment.
Amendment 21 withdrawn.
22: Clause 8, page 5, line 35, leave out subsection (2)
My Lords, the amendment is in my name and that of the noble Lord, Lord Pannick, and others. The noble Lord, Lord Pannick, asked me to give the House his apologies for his unavailability today. The amendment concerns Clause 8(2), which gives the Lord Chancellor the power to modify Part 1 of Schedule 1 so as to omit services from the scope of legal aid and assistance. I have considerable concerns about that power.
First, this allows for still further reductions in the scope of legal aid by means of delegated legislation. Your Lordships' House is currently debating the scope of legal aid. For example, we are shortly to consider the withdrawal of legal aid for clinical negligence. The power would allow the Lord Chancellor to remove areas from the scope of legal aid without proper debate on the Floor of the House. There should surely be the opportunity for such debate if the Lord Chancellor is inclined to restrict in future the scope of legal aid.
Furthermore, although the Lord Chancellor can remove legal aid from the scope in areas he thinks appropriate, he is not given the concomitant power to restore legal aid. There are two circumstances in which he or his successor might want to do that. The first is if there was an improvement in the economy. The cuts in legal aid are, as the Minister has repeatedly said, needed as a result of the Government's overall strategy. Should matters improve, there should be an opportunity for the Lord Chancellor to restore legal aid within the terms of the Bill.
There is another reason. However well planned the cuts are—I know that much criticism is made, particularly by the party opposite, of the lack of an impact assessment—it is difficult to be absolutely confident about the effect. For example, I do not think that the party opposite had any idea of the extent of the take-up of conditional fees when it introduced changes in the Access to Justice Act.
I suggest, further, that the uncertainty about the effect of legal aid was acknowledged by the Government themselves in last year's Community Legal Service (Funding) Amendment Order 2011. The Explanatory Memorandum stated that,
“the LSC will monitor the situation to ensure that they are aware of any market shortfall and the Government will work closely with them so that that they are able to respond promptly, effectively and appropriately”,
should this materialise. The Lord Chancellor should be able to respond in a like manner should there be some egregious examples of market shortfall or the establishment of legal aid deserts. Your Lordships’ Constitution Committee said in paragraph 20 of its report that if the Lord Chancellor is to have the power to take away by delegated legislation, he must also have the power to provide.
The amendment is intended not to be destructive but to improve the Bill so that, within the constraints considered necessary by the Government, there should none the less be a proper reflection of the principles of access to justice. This amendment and others in the group should help to achieve this. I beg to move.
My Lords, I have put my name to Amendments 23 and 27, which are very much on the same lines as the amendment by the noble Lord, Lord Faulks. I find it absolutely astonishing that the Government should, in Clause 8, have an arrangement whereby they can delete legal aid but they cannot bring it back. It is particularly astonishing because a number of judges who know what they are talking about—two Supreme Court judges who have been judges in the Family Division and the present president of the Family Division—all say that this is a false economy. I very well understand that it is absolutely necessary to cut the legal aid bill. However, if the Government cut it in the wrong way, as I suggest they are doing and as I shall say in the debate on later amendments, they cannot put it back if it requires primary legislation.
As the noble Lord, Lord Faulks, has already said, the whole purpose of these amendments is not to destroy the Bill but to allow the Government, or indeed a subsequent Government, a degree of flexibility so that they do not have to use primary legislation to achieve their purpose. Therefore, I very much support all the amendments in this group.
My Lords, I entirely agree with what has been said by the noble Lord, Lord Faulks, and the noble and learned Baroness, Lady Butler-Sloss. At present, as has already been pointed out, the Bill authorises the Lord Chancellor to omit the services under Schedule 1 but it does not permit him to extend his powers by adding to the services in Schedule 1. Any extension of the power would therefore require primary legislation. By contrast, the deletion of existing services would, under Clause 132(5), require only the affirmative procedure, which is quicker, simpler and cheaper than primary legislation.
From long service on the Delegated Powers Committee, I am satisfied that it would be acceptable to use the affirmative procedure to use Clause 8(2) to delete services that now exist under Schedule 1. We should recognise that as desirable. From that, it follows that we should make it as easy as possible to reconstruct the provisions that have been cut and that ought to be restored when the financial situation permits. That would be done most swiftly by including in the Bill the ability to introduce powers to add new services by the affirmative procedure, as well as a power to remove existing services. That will cost nothing today but it will help to satisfy those of us who accept that some reduction is needed now but who do not want it to continue when the reduction is needed no longer. In some years to come, that will be the case.
Therefore, if we are to go ahead with the Government’s proposal, it is essential to add to it the requirement that the Government accept that in the future, when it is possible on economic grounds to do so, existing provisions can be added and not just deleted by the affirmative procedure in both Houses.
My Lords, I wonder what on earth could, in fact, be a valid reason for objecting to the spirit of the amendments in this group, in particular the one proposed by the noble Lord, Lord Faulks. If, as I fear, some parts of the Bill remain unchanged by amendment and legal aid is withdrawn from some areas, it is almost certain that it will be shown in due course that legal of aid was essential for the smooth running of our benefits systems, our legal system and our society. I suspect that there will be a public sense of unfairness when the extent of the proposed cuts is more widely known. I suspect that at that stage there may need to be, as others have already said, some rapid amendment to the existing system.
Who knows whether our economy may once again prosper? Further money may be available to spend, not just on more lavish opening ceremonies for the Olympics, royal yachts or high-speed railways but on the needs of people who are poor and disadvantaged. It is surely not beyond the bounds of possibility, as history has often shown, that a new field of law will develop rapidly and that legal aid will need to be extended to a different category that has not been anticipated to require it. Flexibility, as others have said, so that further primary legislation, which is costly and time consuming and inevitably involves considerable delay, can be avoided, ought surely to be embraced by the Minister with enthusiasm. I look forward to seeing it in a moment.
My Lords, the problem for many lawyers is that we so often look into the past. Common lawyers in particular try to piece together what has happened before. Consequently, we tend always to look for evidence to support our interpretation of events. I certainly share that problem, but I have also had some experience of running an independent local radio company. During that time I realised the great difference between businesspeople and lawyers. Businesspeople have to take decisions about the future, and they can do that only on limited information.
In this instance, the Government have had to take a decision; it has been forced upon them. To adopt a phrase first used by the noble Lord, Lord Elystan-Morgan, 50 years ago, “The Visigoths were at the gates”. It was therefore necessary to decide how best we can cut the deficit and how, in this instance, legal aid should share that burden. This is an issue which I think I raised with Ministers before the Bill came here—I certainly referred to it in my Second Reading speech—and I have had further discussions since. When taking decisions about the future, one has to have flexibility when the future happens. One has to be able to adopt what was decided at one moment in accordance with experience.
This is an instance of that. Some of the prognostications that we have heard from the lawyers around this place—and there have been a lot of “mays” and “what is likely to happen” and so on from lawyers—might happen in the future, in which case the provision of legal aid will have to change. The changes might be positive and legal aid granted more widely. It is therefore essential that the Lord Chancellor has the power to add back into the scope of legal aid matters that prove not to be profitable in the way that the Bill envisages. There are not the alternatives that the Minister speaks of for dealing with various legal issues and the very important question of access to justice. That is why I am speaking to Amendment 25 in my name. This is a very positive way in which the Minister can demonstrate that the Government will be flexible in this area, will listen to the concerns that are voiced in the Chamber and will adapt the Bill accordingly.
My Lords, I support strongly the amendment proposed by the noble Lord, Lord Faulks, and the other amendments in the same spirit. It is important in considering the merits of the amendments that we bear in mind the purpose of a civil justice system. I suggest that a country is not entitled to regard itself as civilised unless it has a proper, workable system for the administration and attainment of civil justice. I spent my professional life working in the civil justice system. Of course, the criminal justice system has its own imperatives, but a civil justice system whereby individuals can obtain remedies or resist attempts to obtain remedies against them is of critical importance if our country is to retain the status that it has earned over many years of being a civilised country in which it is a pleasure to live.
I beg your pardon. That might have sounded like a peroration but I am afraid it was only a beginning. Cutting down on legal aid might be very necessary for cutting the deficit, but it must not be allowed to get to a stage where it imperils the adequacy of the civil justice system.
A plethora of litigants in person is not an ornament to a civil justice system but a reproach. I was a judge for many years, and on many occasions litigants in person appeared before me, sometimes as plaintiffs and sometimes as defendants. It is never a satisfactory means of conducting a trial. Every judge wants to come to the correct conclusion if they can, and every judge must bear in mind that one party is going to lose and must leave the court feeling that he or she has had justice. Where there is a litigant in person, the judge cannot avoid appearing to be on the side of that party. The litigant in person usually does not know how to put their case or the best arguments for the propositions that they are advancing, so the judge will step in and examine them on behalf of the litigant in person. That is fine for the purpose of obtaining justice but does no good in persuading the party on the other side, who has listened to his or her lawyers attempting to argue against the judge, that this is an appropriate means of obtaining a just result. That is the effect of producing a state of affairs in which one or other party cannot afford access to justice through the remedy of employing lawyers to appear in the case.
It is of very great importance, if the Minister is to have the power to remove areas of eligibility for legal aid or to add areas where there should be legal aid, that both those forms of executive law-making should be associated with the requirement for an affirmative resolution from each House, as the noble Lord, Lord Goodhart, suggested. Without that safeguard, these amendments are essential. If they are not agreed, that safeguard at least should be included.
My Lords, I apologise for interrupting the noble and learned Lord, Lord Scott. There is no greater crime than for a barrister to interrupt a judge mid-speech, so I am covered in a white shroud as I appear before him.
I, too, support the noble Lord, Lord Faulks, in this amendment, and in the other amendments. They tend to flush out a rather important question: is it the intention that this is a continuation of the erosion of legal aid, and that the idea of turning it back is never to be considered? Are we talking about the withering on the vine of legal aid? If so, you would not have in mind the opportunity of the Lord Chancellor to reinstate legal aid or to put it back in place as a result of evidence of shortcomings. If the intention is simply to reduce legal aid inexorably, of course you would not bother having that bit as part of the powers of the Lord Chancellor.
The piece of law to which I want to speak is that of unintended consequences. We know that it is only in the experience of the absence of legal aid that we will see its impact. I want to reinforce what others have said, that it will be in the sucking of the sweetie that one will be able to work out whether the consequences are so serious that the Lord Chancellor might want to reinstate legal aid or to put it into a place where it had not previously been. I strongly urge the Minister to look again at this and to have that reciprocal part of the power so that it will be possible to put legal aid in place, or to reinstate it where it has been removed.
Like other noble Lords, I wish to support what has been said by all speakers so far in this short debate. We are talking not merely about reinstatement of legal aid but about adding to legal aid issues that have not yet been considered. In the first debate this afternoon, the noble Lord, Lord Beecham, referred to his experience, which I share. When I and many others in this House started practising the law, there were many things that we had not envisaged that we now take to be absolutely basic rights. For example, equalities legislation, the equality of women and the right to equal pay in the workplace for equal work had barely started when I was called to the Bar in 1970. We must, therefore, keep the door open for such issues to be added to legal aid.
The final point is a question to my noble friend the Minister. Why are the Government opposed to addition or reinstatement? The only informed speculation, if I can call it that, which I have heard on the reasons for this provision is that Ministers feel that they would avoid being lobbied by outside interest groups if this were a one-way-only provision. Surely being lobbied is something that we expect and welcome in political life in this country, and Ministers of the Crown and their officials should be robust enough to resist if the lobbying lacks merit. If the Minister is to resist the spirit of the amendments this afternoon, the House would be grateful for a coherent set of reasons why.
My Lords, I was exhilarated, enthralled and deeply flattered by the reference made by the noble Lord, Lord Thomas, to my existence 50 years ago. It is surprising that he should remember that I was there at all, let alone the hackneyed clichés that I was given to in those days.
I shall speak to this amendment, and to Amendment 23, if I may. Their effect would be to give the lie to the canard, which may well be suspected by many people, that the Government are a liquidator of legal aid. The first part of Schedule 1 is the remnant, remainder and rump of what was once a splendid system created in 1949. I make no apology for reminding the House that in 1949 the financial condition of Britain, having fought and won a dreadful war, at massive expense, was even more parlous than it is today. Yet the Government did exactly that. They sent John Maynard Keynes to the United States to negotiate, on very hard terms, a massive loan that had harsh conditions, the last instalments of which were repaid only some six or seven years ago. That was the situation and it would have been easy for the Government of the day to have said, “Justice is a magnificent thing—it is a noble ideal—but in our weakened condition we simply cannot afford it”. They did not say that, to their eternal credit. The first point to be made is that the amendments give the lie to the idea that the present Government are trying to reduce legal aid and that they are a liquidator of everything that legal aid fundamentally represents. That is neither the attitude nor the intention of the Government.
The effect of these amendments would be to give a more balanced view of the situation. It would be absurd—and even more absurd to allow it to be done by secondary legislation—to allow the authorities a power in Clause 8(1) and (2) to further restrict legal aid without considering any possibility on the other side of the balance sheet, as it were, of adding where necessary. That addition might be made if there was a massive change in economic circumstances, which is not likely to occur for some years, or if it were discovered that some of these changes, though proposed in good faith, were so costly to the principles of the administration of justice and access to justice that there had to be a rethink. That would be one condition.
Another condition would be where it had been anticipated that a substantial net saving could be made under a certain heading but it was shown that the consequential costs to other departments were such that either a loss or no saving at all was created. These are real possibilities. I do not criticise the Government for not being able to point out exactly what will happen in any of these matters either in relation to access to justice or—perhaps less importantly, but nevertheless of immense importance—in relation to the savings for the public purse, as that is not possible.
If I may indulge in egotism again, in Committee on Tuesday I put it to the Deputy Leader of the House that the Government’s intention was to save £350 million, that that was a gross figure and that from that gross figure there had to be deducted a figure of X. No one in this House or this world can say exactly what X may be—it is certainly not a miniscule figure; it may be massive; it may be no more than substantial, but it is an equation that everyone must bear in mind. The £350 million is a gross figure from which X has to be deducted.
The Deputy Leader of the House maintained that that was not the case. His reply can have validity only if there is no downstream additional cost to be regarded or that cost is miniscule. Neither of those propositions can be correct. It is for those reasons that I ask the Government to bear in mind the necessity of maintaining a balance and an equity in this situation and to agree to these amendments. No one imposes any condition upon the Government—the initiative will lie with them the whole time—but this will give a balance and an equity to the situation which does not exist in the Bill at the moment.
My Lords, should not the governing principle be that every single one of our citizens, regardless of their income or personal resources, should have available to them legal advice and representation should they find themselves in a situation of dispute and where they have a reasonable case to pursue through legal channels? Is that not a fundamental liberal principle? The noble and learned Lord, Lord Scott of Foscote, articulated it very finely and much better than I can, but this has to be our benchmark.
Of course, I recognise that this group of amendments is designed to salvage what can be salvaged and to limit damage. However, we ought to differentiate quite carefully between the purport of the amendments in this group, because they are not all saying the same thing. I support Amendment 24, tabled by my Front Bench, because the effect of it would be that no further areas could be taken out of scope other than by new primary legislation. The way that Parliament deals with secondary legislation does not provide adequate opportunity for debate about very important and contentious matters. Therefore, it would be a proper safeguard that there could be no further attrition of legal aid—we would not take any additional areas out of scope—without Parliament thinking deeply about it, taking care about it and being fully aware of what it is doing.
On the other hand, Amendment 24 would allow areas to be brought back into or added to the scope of legal aid by order. That is acceptable because you are not taking away people’s legal rights, you are enhancing them, and there must be a presumption in favour of that as a matter of principle and that Parliament would therefore not be required to give such proposals the same intensive scrutiny as it ought to give to proposals to take areas out of scope. I agree with my noble friend Lady Mallalieu that there may very well be instances where Parliament would wish to act fast to bring an area back into scope. Therefore, Amendment 24 is preferable within the group.
Perhaps the Minister will again defend the Government’s breach of liberal principle in taking whole areas out of scope of legal aid with the argument that it is imperative to save public expenditure. I noticed that the Lord Chancellor, in that very interesting article he wrote in the Guardian just before Christmas, said that:
“Legal aid in England and Wales costs vastly more than other common law variants—twice as much per head as New Zealand’s system for example”.
However, I understand that the cost of civil legal aid in New Zealand is not significantly higher per head. It is of the same order as it is in England and Wales, and it is in fact in the criminal legal aid area that the New Zealand system is so much more economical—they spend less per head on criminal legal aid but not on civil legal aid. However, although the Government justify what they are doing by reference to the comparison with New Zealand, they have not chosen to seek economies in criminal legal aid, but in civil legal aid. The Government need to examine these figures and, I hope, explain their economic rationale rather more fully than they have so far.
I am sure the Minister has had the opportunity to see the study entitled Unintended Consequences: the Cost of the Government’s Legal Aid Reforms by Dr Cookson of King’s College, London, in which he examines the possible knock-on effects—the higher spending that may be incurred for other government departments and indeed for the Ministry of Justice—as a result of the polices in this Bill. The Minister has been extremely helpful to the Committee in writing to us very fully to explain why the Government have adopted the policies that this Bill would enact. If the Minister would be kind enough to write to us with a detailed refutation of the arguments that Dr Cookson, a distinguished academic, has put forward in criticism of the Government’s case that it will be making a net saving to public expenditure, I am sure that that would be very helpful.
I am very far from saying that the sky should be the limit in terms of what we spend on legal aid. I would entirely agree that where there is waste, it should be taken out. However, the assault should be on waste, not on scope. If the principle is that every citizen should have equal access to the law, then it is not proper for the Government to say, “But if the conflict or dispute that might be litigated is in one particular field, then the citizen is not to have access to the law for a dispute of that kind”. It is fine to do all you can strenuously to reduce unnecessary costs, but do not breach the fundamental principle.
I would finally say that while it seems to be almost common ground around the House that it is necessary to reduce the legal aid bill, with respect, it is an absurd proposition to say that we cannot afford what we are spending. I repeat: we do not need to spend every penny of it, because there may well be waste in the system and it may be possible to reform it to make it more economic while maintaining access to justice. However, to say that a total of £2.2 billion spent on legal aid, which is only 1 per cent of the social security budget, is something that as a country we cannot afford—a country that prides itself on being a liberal society, and on the rule of law—seems to me to be wrong. This is a moral and a political choice, not a matter of economic exigency.
My Lords, I would very briefly reassert the fundamentalism of access to the law. Equality before the law is one of our basic claims. If in fact it does not exist, it damages not only the law and the rule of law but democracy itself.
This group of amendments is interesting. Amendment 22, moved by the noble Lord, Lord Faulks, which leads the group, simply removes subsection (2) of Clause 8, which will mean that any change in the scope of legal aid would have to be by primary legislation. Our amendment, spoken to by my noble friend Lord Thomas of Gresford and to which my name is added, seeks to even things up by saying that not only can the Government omit or change by deletion the scope of legal aid, but can add to it. The third position is that of the noble Lords, Lord Bach and Lord Beecham, who in their amendment reverse the tables, saying that you cannot remove from scope but you can add to it.
I must confess that I would, if the world were a perfect place, prefer the first amendment, Amendment 22, which would require all changes in scope to be by primary legislation. However, living on a pragmatic globe, I suspect that the best we may do is at least to have equality as between diminution of scope and addition to it. Hence Amendment 25, which incidentally is mirrored by Amendment 23, spoken to by the noble and learned Baroness, Lady Butler-Sloss.
I would just add this point, which has not been sufficiently clarified or emphasised. Whether something is in or out of scope is not, in my book, most significantly a question of finance. If we are the most legislated democracy on earth—do not forget that we pass about 14,000 pages of new statute law a year—it behoves us, in this Parliament above every parliament, to ensure that what we do has fairness of application in the real world. Above all, I put it to my noble friend Lord McNally that there has been a unanimity of view from those who have contributed to this debate that, as things stand, the exclusions from scope are going to cut so deep that the consequences will be social and political unless they are reversed speedily. For that reason alone, if I were sitting in the seat of my noble friend, I would want to be able to add back speedily. I promise him that if this Bill goes through as drafted, scandals will arise, which the Government will want to rectify swiftly. Therefore, I hope that the Government will move on this.
As a former Member of the other place and as a Member of this House, I am deeply suspicious of secondary legislation. The onus of proof that secondary legislation is absolutely essential must rest on the Government. There are too many instances where people do not vote on the issues which arise because they happen perhaps late at night or in circumstances where it is not regarded as absolutely essential that Members should attend. Whether that is right or wrong does not matter. What is important is that the Government should resist the temptation to indulge in secondary legislation wherever possible.
The onus of proof rests fairly and squarely on the Government. In my view, they have not begun to do that. They disregard entirely the essential nature of that duty. In other words, they are saying that it is not important. I think that it is vital that Parliament conducts itself properly and scrutinises legislation where possible. I do not think that we should resort to secondary legislation, except where it is proven to be absolutely essential.
My Lords, first, I thank my noble friend Lord Howarth in particular for supporting our Amendment 24. Of the alternatives set out so clearly by the noble Lord, Lord Phillips of Sudbury, Amendment 24 is the preferred amendment. But I want to make it absolutely clear from our Front Bench that our real quarrel is with the Bill as drafted. In the mild words of the noble and learned Baroness, Lady Butler-Sloss, it is astonishing to find Clause 8(2) in modern legislation. It goes without saying that we believe that this is a non-party issue. Right around the Committee, it has been suggested that on this the Government have got it seriously wrong. If I am a little harsher on the Government than noble Lords have been so far, it is because this is an essential and very important part of this Bill. It is crucial that the Government move on it, if not at this stage, then later. I very much hope that on this group, the Minister can help us by implying that the Government are thinking of changing their position.
The Bill represents an attack on a number of crucial areas of civil legal aid. If the Government get their way, the whole edifice of social welfare law will be severely damaged, perhaps to destruction. The restrictions on private family law are poorly thought through and the proposed taking out of scope of clinical negligence, which we are to debate shortly, seems more ridiculous as every day passes.
We all agree—we certainly do—that there must be some cuts to legal aid. But there should not be these cuts, and any cuts should not be so fast or so far. I pose again to the Minister a question to which I have had no response up till now: why on earth is all criminal law seemingly off limits? Is there no waste, nothing that could be rationalised, in that area of law which, I remind the Committee, takes well over 50 per cent of the whole legal aid budget? The answer is apparently not, because the Government have announced that there will be no moves on criminal legal aid until 2015 at the earliest. I pose the question again: why?
The present position, as I understand it, is that a government can, to a limited extent—I shall be frank in saying that I am not sure to what extent—alter by order what is in and out of scope; for example, by amending the funding code as felt appropriate. But what the Bill asks us to accept is a quite new proposition; namely, that the Government should have the power to omit services from Schedule 1 by order. However, there is no suggestion, of course, that they should have the power to add services by order. Again, the question that all noble Lords have been asking the Minister is: why not? Why this imbalance, this tilt, against legal aid? My own view is that the answer is a bit depressing. It is that, to put it mildly, the ministry has a rather small-minded, extraordinarily partial view of legal aid; it does not much like it and would rather be rid of it than defend it. It does not see it as central to access to justice, let alone the rule of law, and is rather looking forward to cutting more. What other impression can one possibly get from the way in which this clause is drafted?
It is often said, particularly in this House, that the real argument against allowing a provision like this is not for now but for a future government who may not be troubled by the same principles as are supposed to exist in all modern governments of whatever complexion. However—and I hope that this does not sound too harsh—my own reason for not allowing this crude power to omit legal aid to the Government is just as much to do with what I fear is the present Government’s careless attitude towards legal aid as with some rogue government in the future.
Right across this Bill, or right across Part 1 at any rate, the cavalier manner in which it is proposed to decimate social welfare law, to remove clinical negligence from scope and to restrict the definition of domestic violence on the one hand and have too wide evidential criteria for it on the other all tend to suggest that, on the importance in our society of the availability of civil legal aid for ordinary citizens to access justice, the Government really do not have the enthusiasm that they should have. I believe that this view is shared by many inside and outside this Committee. How then can it be right to entrust the Government with the new extensive powers that they propose? Legal aid could be further diminished by order, but nothing could be added to it except by primary legislation. Just to state that proposition shows how wrong it is.
No one apart from the noble Lord, Lord Goodhart, has referred to the two important reports that have been published for our benefit. One was from the Delegated Powers and Regulatory Reform Committee, which discussed this issue and came to the following conclusion:
“The Committee has concerns about clause 8(2), and those concerns were not allayed by the explanation in the memorandum that this was merely an updating provision. However, there is precedent for a power of this type to be delegated and subject to affirmative procedure (whether the power is to add or to remove from the Schedule), and on that basis, we do not find it inherently inappropriate. But we draw it to the attention of the House because it is not limited to routine updating and may legitimately be used to make substantial omissions from Schedule 1.”
The Select Committee on the Constitution said this about Clause 8(2):
“Under the Bill the Lord Chancellor will have a power to modify Schedule 1 by omitting further services from the scope of civil legal aid (clause 8(2)). Orders made under clause 8(2) will be subject to the affirmative resolution procedure. This provision should be amended to enable the Lord Chancellor not only to omit services from the scope of civil legal aid but also to add services to the scope of civil legal aid.”
I do not want to quote from the Government’s response to both those committees’ reports. Perhaps the only advantage was that of consistency, because the two paragraphs were the same in each case. If noble Lords look at those paragraphs they do not make a convincing case, or indeed any case at all, against the amendments that have been raised in Committee today.
This is another part of the Bill where the Government must move. I very much hope that the Minister will show signs that the Government have listened to the unanimous view of these committees on this matter today.
My Lords, I thank all noble Lords who have contributed to this debate, and particularly my noble friend Lord Faulks for introducing it. There is a little bit of the political bruiser in me that always wants to take the noble Lord, Lord Bach, full on, particularly when he is in piety mode. He was part of a Government who carried out six reviews of legal aid in its last five years, brought in real cuts, and had an actual manifesto commitment to cut legal aid.
As I said at the very beginning, we were faced with circumstances where we had to make hard choices. The noble Lord sticks to the mantra, “Not these cuts, not this place, not now”.
A number of telling points have been made by the contributions today. To clarify a point that my noble friend Lord Faulks asked for, the regulations under Clause 8(2) would be subject to the affirmative procedure in terms of parliamentary scrutiny. However I take full note of the point that the noble and learned Baroness, Lady Butler-Sloss, made, that strong and experienced legal opinion has advised against this one-way street which is built into the Bill. I also take on board—which is why I want to come back to this at the end—the question of primary legislation as against secondary legislation.
I also take note of the advice of the noble Baroness, Lady Mallalieu, about the need for flexibility and future-proofing, which my noble friend Lord Thomas also referred to. The importance, as the noble and learned Lord, Lord Scott, pointed out of the adequacy of the civil justice system, is something that is constantly in our minds in trying to determine our priority, and I take on board the warnings that we have had about the dangers of litigants in person.
The noble Baroness, Lady Kennedy, asked whether the aim was to see legal aid wither on the vine. That is certainly not our intention. Like previous speakers, the noble Baroness argued again the case for having some guard against what she termed the “law of unintended consequences”, although the term “sucking on the sweetie” must be some aspect of Scottish law rather than English law. As a non-lawyer, I would not know. However I agree that “sucking on the sweetie” may well be the test of all legislation.
My noble friend Lord Carlile called for us to keep the door open. He was right to say that all Ministers must be ready to take lobbying; that is not in doubt.
The noble Lord, Lord Elystan-Morgan, cursed with the fluency of the Welsh, talks about the liquidation of legal aid. I remind colleagues, as I have in previous debates, that we are talking about a 17 per cent reduction of present expenditure over the lifetime of this spending review. This is not the liquidation of legal aid. Whatever debates there are about other countries and other systems, I have never seen it challenged that ours is a most generous system of legal aid.
I was pleased that the noble Lord, Lord Howarth, said that he did not believe that the sky was the limit regarding legal aid; it sometimes sounds as if that is what he is saying. Legal aid has never been available at the point of need in the way that was the great aspiration of the National Health Service. Those drawing up the rules of legal aid have had to do just that: draw lines and often make difficult decisions.
My noble friend Lord Phillips argued for what I should describe as the doom scenario. That may be a case that makes the argument for looking again at the clause, although Ministers do not believe that all the terrible things in reports, briefings or speeches in this House are going to take place.
The noble Lord, Lord Clinton-Davis, was suspicious of secondary legislation. Again, that would carry more weight if he had not been a strong supporter over 13 years of a Government who brought forward a whole tsunami of secondary legislation.
I did hear the noble Lord’s speech. I was merely pointing out that as a parliamentarian I, too, have worried about the overreliance on secondary legislation, which is a point that I would concede to him.
There is no doubt that there is great strength of feeling about these amendments. I assure the Committee that the Lord Chancellor has noted the concerns; my noble friend Lord Thomas and others had a meeting with him earlier in the week when they put this case very strongly. With the leave of the House, and I think the noble Lord, Lord Bach, intimated this in his wind-up speech, in the full light of the points made in this debate and by the Delegated Powers Committee and the Select Committee on the Constitution, both of which have been referred to, may the Justice Secretary look at these matters again and give serious consideration to the amendments—not all of which mesh together—so that we can bring back proposals regarding this clause for further debate on Report? Given that assurance that we are taking this matter away in a constructive way, I hope that noble Lords will agree to not to press their amendments today.
My Lords, I am very grateful to all noble Lords who have spoken in this debate. It is a matter of happenstance that I am dealing with this amendment. The other amendments are in the same spirit, although to slightly different effect. I do not wish to intrude on the spat between the noble Lords, Lord McNally and Lord Bach. My concern, in this amendment, is not so much the detail, which we are going to develop in due course in argument, but more the question of principle, which I would suggest, and others all round the Committee have suggested, is at the moment embodied in this clause in a most unsatisfactory way.
I am, however, very grateful for the conciliatory noises made by the noble Lord, Lord McNally, and for his assurance that what has been said in this debate, and what has been said in the various committees that have considered this clause, will be noted by the Lord Chancellor. I very much hope that, when this matter comes back on Report, those concerns can be reflected by the Minister. In that guise, I am happy to withdraw this amendment.
Amendment 22 withdrawn.
Amendments 23 to 27 not moved.
Clause 8 agreed.
Schedule 1 : Civil legal services
28: Schedule 1, page 115, line 5, at end insert—
“Clinical negligence(1) Civil legal services provided in relation to the obtaining of one or more expert reports in clinical negligence proceedings.
(2) In this paragraph—
“clinical negligence proceedings” means proceedings which include a claim for damages in respect of clinical negligence;“clinical negligence” means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);“expert report” means a report by a person qualified to give expert advice on all or most of the matters that are the subject of the report;“proceedings” includes any sort of proceedings for resolving disputes (and not just proceedings in court), whether commenced or contemplated.”
My Lords, we now to come to the first of 60 or so amendments dealing in detail with Schedule 1. It is safe to assume that all of those amendments would be likely, in one way or another, to add to the cost of legal aid. The amendment now before your Lordships is different. It is true that Amendment 28 would add £6 million to the legal aid bill, but, coupled with Amendment 139, to which I shall also be speaking, it will save the taxpayer at least three times that amount, and probably a great deal more.
It is because of that special feature that I wrote to the noble Lord, Lord McNally, on 16 November and asked to see the Lord Chancellor and the Minister in charge of the Bill in the House of Commons. I received a very courteous reply from the noble Lord, Lord McNally, on 1 December, for which I am grateful. It refers to the point which I had raised in some little detail, but, if he will forgive me for saying so, it does not actually answer the point. It is a point, I hasten to add, which is not my point, but is a point which has been made by Lord Justice Jackson. I would not normally refer to the views of a member of the judiciary in moving an amendment, but as he is the author of the report on costs in litigation which forms the whole basis of Part 2 of this Bill, it seemed right to make an exception in this case.
So what, after all that, is the point? As I suspect your Lordships know all too well, clinical negligence cases are currently funded in two ways: either by legal aid or by conditional fee agreements—CFAs—supplemented in almost every case by “after the event” insurance. The purpose of taking out the “after the event” insurance is, of course, to cover the claimant against an adverse order for costs. The premium is paid by the claimant, as one would expect, but since 2000, when the 1999 Act came into force, the cost of the premium has been recoverable from the defendant—usually, although by no means always, the National Health Service—whether the claimant wins or not. That is the whole point.
It was hoped that in that way the cost of legal aid would be reduced. But of course it has not worked out, as these things seldom do, exactly as intended. The reason is the huge increase in the cost of taking out such insurance. It is now a major element in the cost of bringing clinical negligence proceedings. It is also a cost which, as I have said, currently falls on the National Health Service, one way or the other, and is therefore ultimately borne by the taxpayer.
Therefore, the Government’s original intention, as one can well understand, was that the cost of ATE premiums should cease to be recoverable from the National Health Service. That was clear enough; whether one agrees with it perhaps does not matter. However, the Government then listened to representations and decided to make an exception in the case of expert reports. They had a principle but then made an exception. The point was made very clearly by the Minister in the other place, Mr Jonathan Djanogly, when he said:
“One particular aspect of clinical negligence cases is the significant up-front costs involved in obtaining expert reports. Following consultation, the Government are seeking a tightly drawn power in the Bill to allow the recoverability of after-the-event insurance premiums in clinical negligence cases”.—[Official Report, Commons, 31/10/11; col. 710.]
Perhaps even more clearly, on 2 November he said:
“Such reports, which can be expensive, are often necessary in establishing whether there is a case for commencing proceedings, which raises particular issues if recoverability of ATE insurance is abolished. In responding to these concerns, clause 43”—
Clause 45, as it now is—
“provides, by way of exception, for the recoverability of premiums in respect of ATE insurance taken out to cover the cost of expert reports in clinical negligence cases”.—[Official Report, Commons, 2/11/11; col. 1027.]
I imagine that we would all agree that, if clinical negligence claims are not to be covered in toto by legal aid, there should at least be legal aid to cover the cost of expert reports, including legal advice, without which a claim for clinical negligence simply cannot get off the ground. I suspect we would all agree with that. The trouble is that the Government have set about achieving that result in the wrong way. You have only to look at Clause 45, which is the subject of the other amendment to which I am speaking, to see why. In a lecture given in Cambridge on 5 September last year, Lord Justice Jackson did not mince his words. He described Clause 45 as,
“the most expensive and inefficient mechanism which it is possible to devise in order to achieve”—
the Government’s “policy objective”. Those words are repeated in the recent report of Professor Cookson of King’s College in paragraph 8.3.4.
In the article in the Guardian to which the noble Lord, Lord Howarth, referred, the Lord Chancellor said that it was his ambition to simplify and deregulate civil litigation. We would all say amen to that; nobody could seriously quarrel with it. However, if we look at Clause 45—starting with “unless” at line 29—we find the exception to which the Minister in the other place referred in the passages which I have read out. How is that exception to be achieved? The Lord Chancellor must make regulations concerning all manner of things, including the contents of the policies and the maximum premiums to be charged in any policy. The subject matter to be covered by these regulations takes eight sub-paragraphs and 20 pages of text. One can only imagine what the regulations themselves would look like if the subject matter is as lengthy as that. If the Lord Chancellor wants to simplify and deregulate civil litigation, surely Clause 45 is not the way ahead. It would be far simpler and better to allow legal aid to remain for the very limited purpose of obtaining reports in clinical negligence cases.
However, there is a far graver objection to Clause 45 than that, which is cost, as I mentioned at the outset. The cost of providing legal aid for expert reports is £6 million. That is the one figure on which, happily, everybody seems to be agreed. What, then, is the projected cost of implementing Clause 45? Clearly, one must make some assumptions. In an average case one can assume that the cost of the reports will be £5,000. In a simple case, it will be less; in a difficult case, it will be a great deal more. Let us assume that claimants in general have a 50 per cent chance of success in clinical negligence cases. If the insurer is to break even in the course of a year, it follows that he must charge not less than a £5,000 premium for £5,000 of cover. However, to that he must add 25 per cent for his overhead expenses and profit and 6 per cent to cover the cost of insurance premium tax. Therefore, the minimum premium for £5,000 of cover will be £6,265. We know that in 2010-11, the National Health Service settled some 5,400 cases. If one again assumes that the funding in half those cases was by way of ATE cover, one can work out by a process of simple arithmetic that the cost would have been 2,700 cases times £6,265: that is, £18 million. That is almost exactly three times the legal aid cost of £6 million.
Those figures were given to me by a distinguished solicitor who is familiar with insurance law and practice. However, more importantly, he was one of the small panel of assessors who advised Lord Justice Jackson during the year he spent writing his report. Therefore, there is no reason to doubt his figures, or the figures I have given to your Lordships. Indeed, I am told that they are conservative. If one assumes that three-quarters of the 5,400 cases are funded by ATE insurance rather than half, the saving would be £27 million. If one assumes that the average cost of the reports was £10,000 rather than £5,000, the saving would be £61 million. These are very alarming figures and bear out, in an entirely different context, the sort of concerns expressed all around the House during last Tuesday’s debate on the amendment of the noble Lord, Lord Bach.
I do not expect the Minister to be able to comment on these figures in any way but hope that he will provide an answer as soon as he can. For if the figures are correct, they suggest very strongly that the Government are set on the wrong track and that the funding of expert reports should be by way of legal aid and not by way of the complex and expensive procedure under Clause 45. I beg to move.
My Lords, I rise to speak to the amendment so comprehensively moved by the noble and learned Lord, Lord Lloyd of Berwick, to which I have added my name. It would go some way towards rectifying the alarming situations that may be faced by individuals who have been disabled due to clinical negligence.
Many people involved in cases arising from clinical negligence by a public authority are among the most destitute. These cases will frequently involve parents or other family members bringing cases against public authorities as a result of traumatic injuries sustained by their children or other relatives. Considering the inequality of arms that inevitably arises, having access to expert reports is vital.
What is perhaps most distressing in cases centring on charges of clinical negligence is that individuals will come up against the state, with its teams of lawyers, during proceedings. Never is an inequality of arms more blatant than in those situations. This is somewhat ironic when we would all agree that the state should have a responsibility to ensure that an individual has the means to hold it to account.
To put this debate into context, there are about 1 million adverse accidents in the NHS every year. About 10,000 of those lead to action being taken against the NHS—in other words, about 1 per cent. These figures gainsay the claim that we live in a compensation culture, at least in this context. People who make these claims may have suffered grievous harm at the hands of a public authority, and they have every right to legal assistance in seeking redress.
What is more, and as the Unintended Consequences: the cost of the Government’s Legal Aid Reforms report, published last week by King’s College, made clear, charging ahead with these reforms would be economic nonsense, as the noble and learned Lord, Lord Lloyd, said. The report states that the proposed changes surrounding clinical negligence cases will cost the NHS some £28.5 million, which is nearly three times the amount to be saved by the Ministry of Justice—about £10.5 million. The figures may be slightly different but the ratios are the same.
Moreover, the Government have not yet specified how they intend to deal with the problems that will arise if legal aid is withdrawn from these cases. As the Bar Council has argued, the Government seem to assume that most clinical negligence claimants will receive representation under a conditional fee arrangement—that is, from a no-win, no-fee solicitor. They also seem to assert that the cost of funding expert reports will be paid for by the retention of recoverable “after the event” insurance premiums. If, however, the Government succeed in implementing these proposed changes to Part 2 of the Bill, clinical negligence cases, which are frequently among the most complex, will present too much risk, preventing most solicitors taking on cases on a no-win, no-fee basis. The difficulties involved in establishing liability will simply be too great.
What is more, under Part 2, after-the-event insurance premiums will no longer be recoverable from defendants, and a number of insurers have said that they will pull out of the ATE market. As the Bar Council once again made clear, it is highly unlikely that ATE insurance will be available for expert reports—hence, victims of negligence will be unable to establish whether their case has merit.
In these proposals, the Government appear to have lost sight of their duty to protect the vulnerable from further harm. Moreover, they have failed to provide a robust alternative to counter the inevitable damage to justice that would ensue if the proposals in the Bill went through unchecked. The Government must retain their responsibility to protect the vulnerable, and I hope that they will listen to the criticisms made in this debate.
My Lords, all the amendments in this group are directed towards the retention of legal aid in clinical negligence cases. This is an area in which I have practised as a barrister for the past 20 years or so, acting for both claimants and defendants; I continue to do so.
I should emphasise that in making these few remarks I am not against Part 2, which brings into effect the Jackson reforms. Litigation costs have become wholly out of control, particularly in smaller cases, where legal costs tend to dwarf the sums at issue, and litigation has far too often become concerned about legal fees and the recoverability of insurance premiums rather than what should really be at the centre of the dispute.
However, we should acknowledge that if Part 2 becomes law, difficult cases will be less attractive, as the noble Lord, Lord Wigley, has rightly pointed out. There will be no success fee recoverable, nor ATE premiums, and there is a significant risk that complex but meritorious cases will be uneconomical for legal practices to pursue. The paradigm case which concerns me—and, I dare say, many other noble Lords—is that of a brain-damaged baby. Of course, there are other entirely worthwhile and difficult cases, but such cases are particularly complex and often need many experts to tease out whether there is a case on liability or causation. Without legal aid, individual litigants or solicitors will have to carry investigative costs of many thousands of pounds before, in many cases, deciding that there is no claim to be pursued. There will, however, be quite a number of cases where entirely meritorious claims will simply be unfeasible, so that those who have to bring up brain-damaged babies will be unable to have the consolation and substantial financial assistance which a successful claim may bring as some slight mitigation to the hardship which the child and the child's family will have to undergo for the rest of that child's life.
I understand that the Government have acknowledged that there is potential injustice in the removal of legal aid for such cases. What answers have they put forward in what I acknowledge as being a constructive exchange of views in this area? The first is that CFAs should be available. I am unconvinced of that. Availability would be theoretical only. At the very best, some of the largest firms might take on the occasional case on the basis that they could bear the risk of funding it, but no individual will be able to do so. The second answer given is that exceptional funding within the terms of the Bill will be available in such cases. That is on the basis, as I understand it, that funding will be forthcoming in circumstances where there would be a violation of an individual's convention rights if there were to be no legal aid.
I pointed out at Second Reading that clinical negligence cases very rarely involve any human rights violations. To that argument comes the rejoinder that the relevant article of the convention is Article 6—the right to a fair trial—and that if the circumstances are such that Article 6 is violated, exceptional funding will be forthcoming. The problem with that answer seems to me to be that the jurisprudence from Strasbourg concerning the circumstances in which the denial of legal aid or other state support would constitute a violation of Article 6 is considerably lacking in consistency and coherence. I do not see how anyone could advise their client with any confidence that the refusal to provide legal aid would constitute a violation of Article 6. That means that the exceptional funding answer is remarkably insecure. If it is really the case that the refusal to provide legal aid in such cases constitutes a violation of Article 6, I venture to suggest that there may be some difficulty in justifying the declaration of compatibility with the Human Rights Act which has been signed in relation to the Bill.
If there is indeed an intention to provide funding for the sorts of cases that I am discussing, why not place the provision of such funding in the Bill rather than rely on the vagaries of exceptional funding and potential challenges by way of judicial review or otherwise if a determination turns out to deny access to legal aid in such cases? I appreciate that in the other place the Minister, Jonathan Djanogly, made some reassuring remarks in this area, but they went nothing like far enough to inspire the sort of confidence that is needed that these claims can be pursued.
The final answer provided by the Government so far in response to the admitted lacuna is by means of the recoverability of ATE premiums in relation to experts’ reports by Clause 45. The noble and learned Lord, Lord Lloyd of Berwick, has very comprehensively decimated that argument. I acknowledge the genuineness of the Government’s attempt to provide an answer but it involves an assumption that a market can somehow be created by them legislating. If there is no market, as I suggest there may well not be, then this provision is wholly valueless. On the other hand, if there is a market, it is likely to be wholly unsatisfactory because it will, I suggest, involve enormous premiums which are unsatisfactory for a number of reasons. It is somewhat ironic that the main thrust of Part 2 of the Bill is to get rid of the paraphernalia of insurance premiums and those parasitic upon the whole business of conditional fees, yet by this clause the Government are bringing back that very thing.
The retention of legal aid for these cases has, unusually, united both the claimants’ camp and the defendants’ camp. It is understandable, noble Lords might think, that claimants’ lawyers would want to preserve legal aid—less so obviously defendants’ lawyers. However, the preservation of legal aid provides some discipline on litigation. Lawyers and experts who are involved in a case have to be accredited effectively by a legal aid franchise. Rates are currently determined by the LSC and defendants are not faced with enormous claims for success fees and ATE premiums. If, as may well be the case, some 20 per cent of cerebral palsy cases result in a finding at trial in favour of the claimant, others may have to be abandoned or settled earlier. Then, to add to the point made by the noble and learned Lord, Lord Lloyd, the ATE premium is likely to be vast. I know that the Government are involved in talks with ATE insurers but it is somewhat unfortunate that a provision should be before the House while those provisional talks are still being undertaken.
I very much support the suggestion in the amendment of the noble and learned Lord, Lord Lloyd of Berwick. It is one answer to a potential real injustice. There are other answers, such as the retention of legal aid for children generally in clinical negligence cases, or the retention of legal aid in cases which are of sufficient gravity that they result in a substantial change in individual circumstances. I entirely accept what drives the need to restrict the scope of legal aid but this, I regret to say, is a step too far for me.
My Lords, my name is one of those that have been put to Amendment 30. I set no particular store by this amendment, save to say that it is one of the attempts to deal with the issue that has been eloquently described by the noble and learned Lord, Lord Lloyd, and by my noble friend Lord Faulks, with whom I agree entirely.
Looking around the Committee this afternoon, I see a dozen or so Members of your Lordships’ House who had to deal with constituency surgeries on a regular basis while in another place. The noble Lord, Lord Wigley, who earlier spoke very eloquently, has had the same experience as me of dealing with constituency issues in quite a remote rural part of Wales. Clinical negligence relating to perinatal damage does not choose its location. It is just as likely to arise in rural Montgomeryshire or in rural Caernarvonshire. Indeed, I have certainly seen people in years gone by who have come to a constituency surgery devastated by what they believed had happened to their child while the child was being born in a neighbouring hospital. In the case of Montgomeryshire, this was almost always over the border in England, but that may be beside the point.
The people who come with these problems are often not only overwhelmed by the care of their children, but also by the future they face: the lifetime of having to look after a damaged child to whom of course they are generally entirely devoted and to whom they will give the whole of their life or the child’s life—whichever lasts longer. They are often, too, people from poor circumstances. In many cases, they have no experience of dealing with lawyers and are frightened of lawyers. They have read in the newspapers that the medical profession—and I hope I will not offend any of my many friends who are distinguished members of the medical profession—is chronically defensive in its approach to allegations. They will not be aware that the chair of the National Health Service Litigation Authority has made it clear that, in her view, legal aid for clinical negligence should continue because it is a way of ensuring that medical practice is carried out responsibly and with reasonable care.
It may be that in some big cities there are firms of solicitors who would take on cases of this kind pro bono, at least in the first stages, because they can afford to carry that excess. However, that does not apply in the small towns of rural Wales and the shire counties of England. People whose child has been damaged at birth may only know of, let alone know, one solicitor, who may be in a small practice somewhere in their neighbourhood. It is right that people in that situation be able to at least explore bringing legal action to see whether there is a course of action that may be effective in relation to the injury that has occurred to their child. In some cases, if disbursements can be expended on expert evidence, it will be shown that there is a strong case of negligence, and most of those strong cases will be settled in due course—often for very large sums of money.
The proposals in the Bill run the risk of depriving parents in that situation of the remedy which they will discover only if they and their solicitors are allowed to spend the money to obtain expert reports as early as possible. There are amendments which suggest that there should be co-operation over expert reports and that other measures should be taken to limit the costs. I applaud those proposals. I suggest to the Minister that the Government include, in any concessions that in my judgment they will be bound to make in due course on this subject of perinatal injury to children, ways of ensuring that money is not wasted on a multiplicity of expert reports, but that the right reports are obtained as early as possible. In my judgment, the case for legal aid at the early stage of potential perinatal damage claims is absolutely unanswerable. The Government would be seen to have lost their human face if they refused to amend the legislation to reflect those concerns.
I say to the Minister, however, that perinatal negligence is not the only area in which were legal aid to be removed great injustice would be caused. One can think of endless examples of poor negligent treatment in hospital which result in devastating injuries: the loss of limbs, the loss of eyes, brain damage, and so on. They fall into the same broad category as the perhaps emotive example of perinatal injury. I therefore suggest to Ministers that they should consider permitting legal aid to continue in cases—I do not say that this formulation is perfect but it reflects the spirit of what I mean—where a severe injury has occurred in a clinical setting. If those involved in such cases were permitted to receive legal aid, the injustice envisaged in the amendments would be resolved.
ATE insurance and CFAs have their place, which may be in some of the types of cases I referred to—but not right at the beginning. As the noble and learned Lord, Lord Lloyd, said clearly, the cost of insurance premiums for even quite small cases is out of proportion to the claim. Potential claimants dealing with severe injuries that occurred in a clinical setting may not be able even to contemplate the prospect of whatever element of cost they might face through the insurance system. It does not provide an answer to all cases.
I urge my noble friend to answer sympathetically the huge burden of representations that have been made by those who have knowledge and experience of conducting these cases or experiencing their consequences directly. They make an overwhelming case.
My Lords, my name is on Amendment 30A, along with that of my noble friend Lord Faulks, who spoke clearly and persuasively to it, and that of the noble and learned Lord, Lord Woolf, who apologises for his inability to be here today. He sent me a note in which he rather pithily justified the contents of the amendment—which, it has to be said, is more modest than the one so eloquently moved by the noble and learned Lord, Lord Lloyd, at the start of the debate.
The noble and learned Lord, Lord Woolf, made two points. He stated that,
“in many cases a report”,
from an expert,
“will be sufficient to produce a settlement … where this is not possible, its contents will enable solicitors to decide whether the case can or cannot be taken on a C.F.A.”.
These are two great virtues. Even those in this Committee who have had nothing to do with clinical negligence claims—I congratulate them because these cases are grisly affairs and perhaps the most unsatisfactory and anguish-making aspect of litigation—will know that the expert’s report is absolutely crucial to everything to do with the case. It currently determines whether you get legal aid, and, as the noble and learned Lord, Lord Woolf, said, in future if the reform goes through it will determine whether you get effective coverage under a conditional fee agreement.
I will give the vivid example of a case notified to me by Emma Braithwaite, a solicitor with the National Health Service Wales Shared Services Partnership. Noble Lords may not know that Wales is way ahead of us in trying to find a via media between conflicting issues in clinical negligence cases. Amendment 99A attempts to address the general picture. This particular case was finalised by the payment of damages by the NHS of £4,500. The costs, which NHS Wales had to pay, were £95,897. Roughly half the amount—£44,000—went on legal fees. The case was conducted under the conditional fee system. The balance was mainly experts’ fees.
The case was always small; it was never a case in which large damages would ever be contemplated. The initial offer from the NHS was £3,000, which as I said, settled on £4,500. In a nutshell that explains why we will spend more time on clinical negligence than many who are not lawyers can readily understand. However, it makes it absolutely clear that we need to introduce effective, practical reforms that will make this whole area of litigation fairer, cheaper and speedier. That is why Amendment 30A is in this group.
My Lords, I support Amendment 28. I have received a number of briefing letters from all sorts of organisations in connection with this Bill. One of the most frequent issues is clinical negligence, which the Government propose to remove from the scope of legal aid entirely. A few cases may fall within the exceptional funding test, but that could have massive impacts on some of the most serious cases of clinical negligence, particularly those involving very badly injured children. I understand that significant numbers of parents already receive support from legal aid around clinical negligence on behalf of their children.
The Government’s stated intention, however, is that those cases should be brought on a conditional fee—the no-win no-fee basis. That is not the right way in which to handle such cases, as they often need extensive medical reports, running into thousands of pounds, just to establish whether there is a case. They often have to be held in abeyance to try to assess the long-term consequences for a child. In those circumstances, I am advised that it is not commercially practical to run such cases on a no-win no-fee basis. That is the view of organisations that have made representations, such as the Bar Council and the Law Society.
The Government’s proposed solution of allowing the recovery of insurance premiums related to the costs of disbursements has been widely criticised as not being terribly workable. I also understand that the Government claim that up to 100 per cent of some types of legal aid proceedings will be brought back into legal aid by means of the exceptional funding test. However, the test is deliberately narrowly drawn and its legal and practical implications remain completely unknown.
I support Amendment 28 because it spells out in detail exactly what is meant by clinical negligence proceedings. It seems to me that the Government should take this issue very seriously, particularly in view of the representations that have been made right across the board from all kinds of organisations that really know what they are talking about because they are involved in the day-to-day application of the law in this area. Will the Government please consider what they are proposing with regard to clinical negligence? In my view, it is highly unpopular with organisations that know what they are talking about and with the many people who have had experience of trying to raise issues on behalf of injured children, particularly those injured as a result of clinical negligence.
My Lords, the speech of the noble and learned Lord, Lord Lloyd, at the beginning of the debate was both thorough and persuasive. There is nothing that I wish—or would be able—to add to the basis of his arguments. It is widely believed, and I am one of the believers, that post-accident insurance premiums have been an unsatisfactory element of legal aid in the past. It is therefore very undesirable that that should be continued specifically through Clause 45. The noble and learned Lord, Lord Lloyd, made it clear that Amendment 25 is highly preferable to the Government’s Clause 45. I hope, therefore, that the Government will see fit to accept that conclusion.
My Lords, I shall speak to my Amendment 36A, which deals with the position of children in medical negligence cases. I am not a lawyer and so I speak with some trepidation, having heard so many noble Lords who are experts in the field of legal matters.
The proposals to remove clinical negligence entirely from the scope of legal aid will have an enormous impact on the most serious cases of clinical negligence, especially where catastrophic injuries to children have occurred. A freedom of information request to the Ministry of Justice revealed that in 2009-10, 870 medical negligence cases in the name of children were supported by legal aid. Under the proposals in this Bill, 640 of those cases would no longer be supported by legal aid. Whenever I have raised this as an issue, I have been told—as have many Members—that the Government’s view is that these matters can be dealt with through conditional fee arrangements. We have heard from my noble friends Lord Faulks and Lord Carlile, the noble Lord, Lord Wigley, and the noble and learned Lord, Lord Lloyd of Berwick, about the complications and why this is likely not to provide a satisfactory response.
Cases that are brought for children are often very long—sometimes complicated matters can last six or seven years—and cases that are not quite so complicated can still last for 34 months and longer. This is a terrible situation for families and parents to consider and contend with. Of the £17 million medical negligence cases funded by legal aid, less than a quarter are children’s cases. I understand that the majority of these involve perinatal injuries. These are particularly difficult cases and success is very uncertain.
When we are talking about the technicalities of legal aid and all that is involved in it, we should remember that clinical negligence cases affect not only the child in question but the parents and the whole family. Having a child myself who was wrongly diagnosed with a psychosomatic illness, which was in fact a very virulent form of bone and tissue cancer, I understand something of the trauma felt by such families. We did not proceed to litigation as the stress of doing so was, we felt, too great for us to cope with. We were an emotionally strong family in the fortunate position of being both strong for each other and able to afford the additional costs that occur to families in such situations. Others are not always so lucky. For families with a number of other children needing parental attention, the difficulty for parents to retain their employment can be a problem. I have seen many situations where the stress on families of looking after such children is so high that it has brought about a breakdown between parents.
The process of litigation with the support of legal aid is traumatic enough, but for a child to be denied that right must add hugely to the burden on the child and the family. I do not believe generally that the state should do things for people that they can do for themselves. I do believe, however, that a civilised society should provide a safety net for the most vulnerable.
I also do not believe in wasting public money or spending it unwisely. As we have heard today, independent research on behalf of the Law Society has found that the knock-on effect of the proposals in this Bill for legal aid in clinical negligence cases will cost almost three times the Ministry of Justice-predicted savings. I hope the Minister will be able to reassure your Lordships that this issue will be reconsidered and that the Ministry of Justice will produce a financial impact assessment so that decisions will be based on sound information.
The noble Baroness has spoken from personal experience of this issue and I hope that the Minister will take into account everything she has said.
Representations on this issue have come from many sources: the Law Society, firms of solicitors practising in this area, and the National Health Service Litigation Authority. I have received—as have many noble Lords, no doubt—a letter from a firm of solicitors called Withy King, which raises two particular issues. It asks:
“What is being done to address the increase in medical negligence in the NHS and what steps are being taken to minimise the risks and ensure patient safety?”.
The Minister should address this issue. It also asks:
“What is being done to ensure that the NHSLA handles litigation appropriately, settles claims quickly, makes payments when they are due and is generally fit for purpose?”.
Again, it is incumbent upon the Minister to address this issue.
I apologise to the noble and learned Lord, Lord Lloyd of Berwick, for being absent for part of his speech. He may have addressed these issues himself—I do not know. I had to make an urgent phone call so I apologise. There is no doubt that the issues raised by Withy King are complex, but they are essential. Therefore, I hope that the Minister will focus his attention on the points it has raised, which arise out of professional experience, and that is most important.
My Lords, I have my name to Amendment 36B, as does my noble friend Lady Grey-Thompson, who has sent a message to apologise that she has unfortunately been delayed, despite making every effort to get here for the opening of this debate. I hope the Minister will reflect on all the comments that have come from around the House. We have heard some very eloquent speeches packed with information. The real problem here is: what are the unintended consequences of this change and who is going to be harmed by it?
One problem is that those who stand to lose the most in clinical negligence are indeed those harmed at birth, and children, because they are unable to be advocates for themselves, and their parents are often in more financially straitened circumstances than others. In Wales we have a disproportionate number of people who are at a lower income level and have therefore been eligible for legal aid. Therefore, we have instigated a system called Putting Things Right, which has already been alluded to, which allows a speedier and more cost-effective means of resolving claims below £25,000 in value without the need for litigation.
However, the problem for patients in general is that they entrust themselves to the NHS and they expect to receive care. When things go wrong, this may be because medicine is shades of grey, but when there is clinical negligence there really is the need for some support—not in terms of redress, because you cannot undo what has gone wrong—but to help people cope. But the problem is that they are also dependent on the NHS itself for their ongoing support and care, which puts them in a different situation from those harmed by others generally, who can avoid contact with the system that has harmed them.
Some things that go wrong are catastrophically awful, and are the result of a series of errors rather than something which can be pinned on one person. I would concur with the comments made by the noble Lord, Lord Carlile, that clinicians generally are not quick enough to reflect on where things have gone wrong, to take action and to be open enough about it. Introducing change is a really slow process, but the lessons that have been learnt are a really important way of driving up standards.
The problem with taking clinical negligence out of scope is that it will mean that some of those with the greatest need will not have any access to any form of recompense for what has gone wrong. In addition, some of those who have less reason to pursue a claim may be tempted to do so, because the conditional fee arrangements will mean that any solicitor can effectively have a go without the safeguard and quality control currently afforded by the restriction of legal aid franchises, meaning that currently a solicitor has to be a specialist. If a solicitor is not specialised enough, they may fail to investigate adequately. The other problem is that by being underrepresented, those who really need it may not get the compensation that should rightfully come to them.
The problem in terms of patient safety and avoidable errors has to be addressed when looking at changing a system like this. The cost savings have already been somewhat debunked as the costs are being transferred from one ministry to another. I would urge the Minister to listen to the NHS Litigation Authority in England and the Shared Services Partnership in Wales, which want clinical negligence kept in scope for legal aid. The plea to take it out has not come from anywhere within the NHS, and I hope that he will reflect carefully on the unintended consequences that have been addressed in this debate.
My Lords, a number of noble Lords have spoken who have experience both of the legal and the medical sides of such cases. I am not one of them—it is outside the scope of my field of practice—but I am conscious that this debate on clinical negligence has produced some very powerful arguments, and more very powerful arguments are likely to be produced in the debates on Schedule 1 which are to follow it.
Noble Lords clearly will be arguing what I imagine will be described as special pleading for a number of deserving areas. After clinical negligence I know we are moving on, among other arguments, to those in relation to children, the disabled, disabled children, victims of domestic violence, victims of human trafficking, those who are in need of a guiding hand through the labyrinth of our welfare system, and those whose cases involve complex issues of law which often—indeed almost always—require expertise to present them fairly. Those are just some of the areas to follow. So my sympathy for the Minister, in listening to this particular debate, is great. However, it seems that the amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick, is the very least that could be conceded. I am not by any means sure that it goes far enough, for the reasons which I will come to in a moment, and which the noble Lord, Lord Faulks, set out very clearly.
The Minister will have a difficult time at the end of the debates on these particular additions—as parts of the House will seek to make them—to Schedule 1. He could just stop his ears and refuse to concede on anything, and if he does I suspect that he will leave civil legal aid in tatters, and leave the civil justice system almost wholly to the well-off—to those who can afford to pay. He could pick one or two of the special cases—perhaps clinical negligence, which is very strong, or some of the others, about which we are about to hear. He could pick cases to concede on the basis of who shouts the loudest. He could pick cases that have the strongest or most numerous advocates in debate, those that are likely to attract a bad press for the Government, those that are likely to command public sympathy or—perhaps even more likely—those whose advocates manage to twist his arm most severely between Committee and Report stages in this House.
I respectfully suggest that the Minister should look first at just how much will in reality—particularly in the light of the King’s College research—be saved by each one of these proposals. As the noble Baroness, Lady Eaton, said, in some cases it seems that the gain simply is not worth the candle and that legal aid is ultimately the cheapest option and should remain, albeit with the careful scrutiny suggested by the noble Lord, Lord Phillips of Sudbury, for areas where money could clearly be saved.
Once the Minister has done that and has looked at each of the special areas to see whether the financial argument stands up, surely he must look at those remaining areas to see whether alternative access to justice could be maintained by other means—by mediation; by some form of alternative dispute resolution; or, in clinical negligence cases, by CFAs. We have heard from people closely involved in that area who say that those means will not be available in relation to clinical negligence.
Having done that examination, I am sure that the Minister will find areas where, in his own mind, he has a very real doubt about whether a satisfactory alternative exists and whether he is, by persevering with the Bill in its present form, going to leave people to make their own arrangements without financial help, expert guidance or advocacy and where the result is that the consequences of no legal aid will leave citizens who need the help of our civil justice system with no realistic means of access to law.
I am quite sure that neither he nor the Lord Chancellor would wish to do any of that. When he comes to examine fairly each of the arguments on this aspect and the ones to follow, I hope that he will be open minded in his approach to what is to be done. As I understand it, fairness is the principle that our Prime Minister has said all the cuts which the Government propose are to accord. I cannot believe that that means that civil justice should henceforth be the prerogative of those with means. Unless the Minister, whose judgment I respect and admire, is personally satisfied in each case that an adequate alternative provision is available to such people, I hope that he will take the matter back to his department, take out a red pen where necessary and put his foot down.
My Lords, I rise in the hope of commanding your Lordships’ attention for two reasons. First, my name is on one of the amendments in this group in the name of my noble friend Lady Eaton. Secondly, since I was unable to be here last week, I want the Front Bench to know that I am back. I have listened with care to the speeches that have been made, and obviously I express my support in particular for the arguments on children’s clinical negligence which were raised by my noble friend Lady Eaton. I also want to say to my noble friends that when they come across an amendment with the names Newton and Tebbit on it, they are in trouble. I am sorry that my noble friend is evidently not able to be here today. We are friends but no one who knows us both will think that we always come from the same perspective. Here, we are united.
I need not repeat the points that have been made in debate, not least the very important points made by a number of my noble friends, including my noble friends Lord Faulks and Lord Carlile and—not to minimise any other speeches—the very constructive remarks just made by the noble Baroness, Lady Mallalieu. I share the view that this is one of those areas where it is highly likely not only that the game is not worth the candle but that the costs to other departments will be greater than any savings to the Ministry of Justice. That simply cannot be a sensible way to approach the problem of the deficit as a whole.
Without rehearsing all these arguments again, I hope that I am right in detecting in the air today a move away from what my noble friend Lord Carlile memorably described at an earlier stage as “irritated intransigence” from the other end of the building, and that we will get a constructive approach. We have certainly heard a lot of constructive speeches; I think that they deserve—if I may say so to my noble friends on the Front Bench—a constructive response. Leaving aside the Newton-Tebbit point, if I were them and looked at the totality of the names on the amendments in this group, I would decide, if I may coin a phrase, that concession was the better part of valour.
My Lords, the noble Lord, Lord Carlile, was right to draw attention to the unwillingness of members of the medical profession to admit fault. I have a son who was brain-damaged at birth. The evening after he was born, I spoke to the consultant gynaecologist, a very famous individual, who reassured me that that there was no reason to suppose that anything had gone wrong. But when the diagnosis of cerebral palsy was made, and my wife and I decided that we ought to pursue the possibility of a clinical negligence claim, we found—I am not sure that it is really surprising, though it is very shocking—that the file had gone missing, and it took a considerable time to obtain it. We know that clinical negligence claims take a very long time to pursue. Part of the reason for that is the intransigence of the system—it is very human; it is very understandable—and we have to be realistic about that.
In the interests of being realistic, I should like to pick up a point made by the noble Lord, Lord Phillips of Sudbury, à propos his Amendment 30A, in which he favours the appointment by the NHS Litigation Authority of a single expert witness who would produce a report. We can see the attractions of this in the interests of economy, but if there is mistrust between the claimant and defendant, as there so very often unfortunately is, I wonder how much confidence claimants will have in such reports commissioned by the defendant, the NHS Litigation Authority. That is particularly so if the expert witness appointed by the NHSLA finds that there was no negligence, which may indeed be correct, but can we expect the claimant to accept that that is so?
We all agree that it is unthinkable that legal remedy should not be available for victims of clinical negligence, but I believe, as do others far more authoritative than I, that this is a field in which legal aid must be retained. For example, if you are looking to solve part of the problem by disbursement-only ATE policies, it appears that they are simply not commercially viable. I am advised that, based on an ATE insurer’s real figures, for the average cover of £2,000 needed for preliminary investigations—which does not include the high investigation costs of cases such as catastrophic birth injuries—the premium would need to be of the order of £11,000. So it simply will not work. The noble and learned Lord, Lord Lloyd of Berwick, was right to put it to us that this, at minimum, is an area in which legal aid must be preserved.
If the Government’s proposal to remove ATE recoverability were to be accepted, there would be an increase in the number of unscreened cases, because ATE insurers are pretty risk averse and pretty sceptical. For very good business reasons they do not want to see unviable cases going through. They are therefore part of the mechanism, part of the system, that enables the bad cases, the weak cases, to be screened out. I understand the NHSLA shares that view.
Finally, I will quote to the Committee, if I may, a paragraph from a paper by the NHS Litigation Authority, which is impressive. Its view ought to carry weight with the Committee. It says:
“Ironically, whilst a so-called perceived ‘compensation culture’ (which does not actually exist currently when it comes to healthcare) is said to be one of the drivers for reform, the proposed changes will do more to promote the unsavoury aspects of a ‘compensation culture’ than deter them. For example relinquishing the degree of quality control afforded by the legal aid system for clinical negligence will throw the market open completely to non-specialist and less scrupulous solicitors and claims farmers. There would in all likelihood be an increase in this type of activity.”
That is powerful evidence that I am sure the Government have considered, but that the Committee also ought to consider.
The noble Lord made a perfectly reasonable criticism of one aspect of this amendment. First, he commended the NHSLA, but does he not accept that the amendment says,
“a list maintained by the NHSLA and AVMA”,
which is an independent body that exists to see fair play done?
I am second to none in my admiration, indeed my gratitude, for AVMA, which helped me and my family at a very difficult stage of our lives. I am deeply appreciative of them. If the list of expert witnesses was to be maintained both by the NHSLA and by AVMA, rationally speaking that is a list that should command confidence. None the less, in the emotionally fraught circumstances of a dispute, particularly where a baby has been damaged at birth or where some other catastrophic injury has taken place, it is asking a lot to expect people to trust witnesses and reports that are to be commissioned—the noble Lord’s amendment would require that—by the NHSLA.
My Lords, I hope the Government do not think that this debate is special pleading, as the noble Baroness, Lady Mallalieu, feared. There are a number of reasons for that. First, clinical negligence—at the moment, exceptionally in personal injury cases—already attracts legal aid. It is currently within scope. Secondly, there are considerable difficulties in proving clinical negligence. When a car accident happens, almost anyone, given proper evidence, can determine who is responsible. Clinical negligence is a very different field. It is very difficult to prove causation. If you can prove causation—that the condition of the claimant has been caused by the clinician concerned—you then have a further hurdle to surmount: whether that clinician has exercised the proper standards of care as known at the time.
I vividly remember a case in which I was involved where it was established that the arachnoiditis was caused by an injection into the spinal cord by a clinician. Arachnoiditis affects the limbs of a person and causes considerable paralysis. We could establish causation, but by the standards of the time it could not be shown that the injection was negligent.
The third matter that I draw to the Committee’s attention was referred to by the noble Baroness, Lady Finlay—that there is currently quality control in the provision of legal aid in clinical negligence cases. There are panels provided by the Law Society or Action for Victims of Medical Accidents, and it is only to solicitors who are on those panels that legal aid certificates will be granted. That ensures that there is a proper approach to the issues that arise in clinical negligence cases, and a proper conduct of those cases. For all those reasons, this is not special pleading; clinical negligence deserves consideration quite separately from all the other matters that we are raising under the first schedule.
I would like the Government to consider at what level legal aid can be granted. The noble Lord, Lord Faulks, and my noble friend Lord Carlile referred to the possibility that legal aid should be granted in serious cases that have an impact upon the lives of people. For example, if a case is worth only £4,500, which has been referred to, that may not be one in which public money should be involved—certainly not to the extent of £95,000. However, if, as so often happens, the lives of people and members of their families are altered for good, surely a humane society should provide legal aid to cover the cost of litigation in those circumstances?
My Lords, this has been a very thoughtful debate, and that owes much to the fact that so many of those who have participated have experience, either legal or medical, of cases of this kind. They are certainly among the most difficult that either clinicians or lawyers have to deal with. The noble Lord, Lord Wigley, referred to the rather alarming statistic that 10 per cent of National Health Service patients in any year suffer from clinical negligence. That ought to concern all of us, especially those with responsibility for the health service.
However, it is also right to point out that this does not give rise to a spate of litigation. In view of the numbers of people who must suffer from clinical negligence, the fact that only around 10,000 or 11,000 cases a year receive legal advice, and of those only about 3,500 proceed to receive legal aid for representation, completely contradicts the assumption that there is a compensation culture—certainly in this area of law and, many of us would argue, generally. There is no compensation culture. However, it is a measure of the scale of the need for representation that of the successful legal aid cases—some 1,500 cases adjudicated in, I think, 2009-10—the average period during which these cases were pursued was as long as 55 months. That might partly be a reflection of the complexity of the evidence, or partly of the fact that you cannot really settle a case until the prognosis becomes clearer, until a client’s needs are defined, particularly in the case of children who suffer perinatal injuries or other forms of clinical negligence. Obviously their future lives cannot be predicted with any certainty at too early a stage. However, it also owes something, as the noble Lord, Lord Thomas, pointed out, to the reluctance of authorities—the NHS bodies and, I suppose, private bodies—to admit liability.
My Lords, would the noble Lord confirm that one of the causes of delays is that in complicated cases—we have been concerned with perinatal injuries—there are a number of different experts who have to report? One expert is not enough; you have an obstetrician and you may have a paediatric neurologist, a neonatologist, a neuroradiologist, a midwife and possibly even a geneticist. Trying to make sure that all those experts bring their expertise to bear at the same time and co-ordinate can itself be a reason for delay and therefore for the complexity of these cases.
My Lords, that is right. In addition to that issue, which goes to matters of causation and, potentially, liability, there is also a range of experts whose evidence is needed in determining the future needs of the patient in terms of care, education and support. The point is to underline that these are, necessarily, often complex cases, and they need careful investigation and support before they can be either settled or adjudicated.
The Ministry of Justice has estimated the savings from its proposals at some £10 million. That figure will not go far towards matching Mr Gove’s suggestion of a new royal yacht as a timely gift to Her Majesty the Queen to celebrate the Diamond Jubilee and it occurs to me that the £250 million allocated by Mr Pickles for weekly waste collection would cover the sum in question for 25 years, but all that is beside the point. The reality is that the cost to the NHS will be considerably greater than £10 million. The recent King’s College report that some noble Lords have referred to suggested that a figure of £28 million would be the cost to the NHS of the Government’s proposals. That is surely something that none of us wishes to see. It would be caused by the availability of success fees where hitherto legal aid cases have not attracted such fees, and by meeting the cost of “after the event” insurance—again assuming, as a number of your Lordships have questioned, the availability of ATE. If ATE were not available then of course even more injustice would be done because it would be impossible to bring cases. But there must be a real question about the likely existence of a market for ATE insurance. Furthermore, under the Government’s proposals, there would be the 10 per cent increase in general damages. All of that clocks up to a figure substantially more than what would be saved.
In addition to the financial aspect, there is the real impact on people who require assistance. The King’s College report also indicated that there would be a reduction of 75 per cent in legal help and 65 per cent in legal representation from the admittedly not very large number of cases that are actually brought. That is a significant reduction. Although the noble Lord, Lord McNally, is not replying to this debate, he threw out the figure of a 17 per cent reduction in legal aid expenditure in discussing a previous amendment. However, the cut in civil legal aid generally would be 30 per cent, not 17 per cent. The Government propose saving some £285 million out of something like £900 million or £1 billion. Even the figure of 30 per cent looks modest, though, in relation to the cut that would be inflicted on a number of people who would be entitled to legal aid and representation in this most difficult area of law.
The effect of what is being proposed here is another example of cost-shunting on to other government departments. I have a Question for Written Answer about whether consultations have taken place with other departments by the Ministry of Justice about the impact of the proposals in the Bill on their budgets and whether that has been agreed. In due course no doubt the noble Lord will reply to that and we will see then what is to happen. We have not ventilated the question of a risk register under this Bill as we have in respect of another and I hope that we do not have to go down that road, but it is clear from the evidence that there will be a significant burden on other departments and therefore the net saving to Government from these proposals, if any, is likely to be minimal.
The NHS Litigation Authority, to which my noble friend Lord Howarth referred, made its views clear in its response to the consultation paper last year. In answer to the question:
“Do you agree with the proposals to exclude the types of case and proceedings listed … from the scope of the civil and family legal aid scheme?”,
“We have serious concerns over the proposal to withdraw legal aid from clinical negligence claims”.
It said that the existence of a CFA sometimes means that there is an underlying conflict of interest between solicitor and client, a matter that has been raised and that members of the profession, certainly in your Lordships’ House, acknowledge is certainly a potential factor. However, it also referred to a paragraph of the consultation that stated that legal aid has contributed to containing NHS legal costs. The authority pointed out:
“In the absence of implementation of Sir Rupert Jackson's proposals to remove recoverability of uplifts and ATE premiums … the current proposal will undoubtedly cause NHS legal costs to escalate massively … Overall, we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria”.
That is not, I suspect, the answer that the Government might have anticipated in the consultation.
The NHS Litigation Authority also made clear, in response to a further question about a possible new scheme for funding individual cases where some provision of legal aid is necessary to meet domestic and international legal obligations—the noble Lord, Lord Faulks, dealt comprehensively with that rather weak argument about the applicability of the European Convention—that it was strongly in favour of retaining legal aid for clinical negligence cases and that, should withdrawal occur, it had doubts about the operation of a scheme that would cover high-value obstetric cases in particular, the very cases that the Committee has discussed at some length today. It asked:
“For example, would this scheme only cover cases of the most severe brain damage, or would it also extend to claims for moderate brain damage, shoulder dystocia or to children whose mental faculties are spared but who have serious physical disabilities?”.
The authority indicated that the position needed to be made much clearer before it could consider such a proposal. It noted that,
“it is proposed that (outside the clinical negligence field) ‘very serious cases of negligence’ might receive funding. How will it be possible to define ‘very serious negligence’?”.
It does not object to the proposal to retain legal aid for representation and, as we have heard, the chairman subsequently confirmed that position.
There is a strong sense that the Government’s present position does not find favour in the Committee or, I suspect, more widely in your Lordships’ House. A number of amendments seek to address that issue. We would support Amendment 30, spoken to by the noble Lord, Lord Thomas. It emphasises the need for specialists to be members of panels and their evidence would be put back into scope for the purposes of legal aid. The amendment of the noble Baroness, Lady Eaton, is absolutely well intended but it runs into the difficulties that the NHSLA referred to in terms of precisely what aspects of negligence should be covered. The amendment may seek to cover all negligence sustained, not just perinatal injury, but it becomes a little difficult to justify providing legal aid for clinical negligence for someone under the age of 18 and denying it to anyone just over 18. What is the logical distinction there? Although that is better than nothing, in our view it is not sufficient.
To a certain extent the same has to be said for the amendment so comprehensively moved by the noble and learned Lord, Lord Lloyd. His suggestion relies on Lord Justice Jackson, but only to a certain extent, because Lord Justice Jackson is very clear that there should be no reduction in the scope for clinical negligence. He was not suggesting a halfway house. Again, a halfway house would be better than nothing, but it certainly cannot be said that Lord Justice Jackson would be content with that.
In moving his amendment, the noble and learned Lord also seemed to suggest that the extension of legal aid for the purpose of obtaining medical reports covered the obtaining of legal advice. It does not appear to do so. Without the advice one wonders how far the matter could be taken. He also claimed that the effect of his amendment would be to save the Government money—I think he said £18 million against a cost of £6 million—on the basis that legal aid would be available for expert evidence. By that logic, presumably if legal aid were fully available, even more money would be saved by the Government, which is, of course, essentially the position of the NHSLA. So we come back to the position where it makes economic and financial sense, as well as moral and social sense, to make sure that legal aid for clinical negligence is back in scope, full stop, particularly, if the noble and learned Lord’s financial arguments are correct, as there would not be a net cost to the Exchequer.
In any event, these are serious issues. The notion that legal aid is to be denied to any vulnerable group of people is one which has to be weighed extremely carefully. There would, I think, be complete public support for the retention of legal aid for clinical negligence, not least because, as some in the profession and the NHSLA itself have indicated, it is a kind of discipline. It is an additional incentive for the better management of care and for greater attention to be paid to the risks that occur, bearing in mind the point that the noble Lord, Lord Thomas, rightly made that the state of medical knowledge changes and what is eventually learnt to be good practice is not necessarily immediately obvious at an earlier stage.
If ever there was a case in which the pressure of the potential litigation should serve the public good, it might be thought to be in these cases. As we have already heard, a reasonably high percentage of the population suffer to some degree from negligence and it would be wrong in that context to dismantle the machinery which affords them access to justice. I would hope—and others have also expressed this hope—that the noble and learned Lord, in replying to the debate, would acknowledge that this is a matter in which the Government need to listen to your Lordships’ House, to make more than a gesture or partial concession to a limited group of potential claimants, and to recognise that there ought to be a complete restoration, or retention, of legal aid for clinical negligence. It is not particularly costly and would be broadly welcomed across both the legal and medical professions and, more importantly, by the general public.
My Lords, I join the noble Lord, Lord Beecham, in congratulating those who have taken part in what has been a very serious debate. The Committee has benefited from experience: the experience of those who have practised law in this sphere; the personal experience of my noble friend Lady Eaton and the noble Lord, Lord Howarth of Newport; and the experience of those who had formerly been Members in another place—my noble friend Lord Carlile of Berriew and the noble Lord, Lord Wigley, have had to deal with issues such as this in the course of their constituency work.
A number of your Lordships asked that Ministers would listen. In a debate of this profundity it is only appropriate that we should reflect on the many contributions that have been made, contributions which carry forward a number of the concerns that were expressed at Second Reading. As well as compensation, clinical negligence also raises the point which was reflected on by the noble Lord, Lord Clinton-Davis: the importance of standards for those who provide medical treatment. Related to that, the Department of Health is currently consulting on our duty of candour proposals, with the intention of implementing these through contractual changes. These proposals will make sure that providers of NHS care are more open with patients about harmful adverse effects. We would expect the duty of candour to apply to NHS patients treated, typically, in hospitals, where at least moderate harm results. The proposals specify that,
“There must be appropriate investigation undertaken to establish the facts of an incident”,
“New information that emerges during an investigation … must be shared with patients and their carers/families within 5 working days of its inclusion in any incident report”.
We would expect that claimants’ solicitors could use a duty of candour when investigating potential claims. This might act as a lever to identify when NHS providers are non-compliant. Providers could also use these requests as an indicator for a potential claim being made, prompting early action to resolve the matter before claims are made. Overall, we believe this should facilitate access to justice and help speed up settlements. There is a general acceptance that the way in which the NHS handles claims has improved significantly over recent years, but, as I have indicated, it is important that we continue to ensure that we have the highest standards and the best practice in dealing with incidents such as these when they occur.
The amendments which have been spoken to have as their common theme the extension, in one way or another, of legal aid in cases involving clinical negligence. We recognise that many of these cases raise serious issues, especially where damages are required to meet future care needs. My noble friend Lord Carlile talked about particular parents who are overwhelmed not only by their current care responsibilities but also by the knowledge that they face—well into the future in many cases—continuing care responsibilities to their children. These are serious issues, which can lead to very substantial claims for compensation. We also recognise that some litigants will be vulnerable because of disabilities resulting from negligent treatment. My noble friend Lord Faulks acknowledged that the Government have recognised the seriousness of these particular issues, because clinical negligence claims are not being treated like personal injury claims, or indeed like other torts.
My noble friend Lord Faulks also indicated that the Government had sought to engage constructively to address these issues, although he expressed very serious concerns and reservations about the different proposals that have been brought forward to try to address them. I will try to deal with these in the course of my reply. He indicated, for example, some scepticism as to whether the conditional fee agreement could replace legal aid. Figures from the NHS Litigation Authority show that in 2010-11 approximately 82 per cent of clinical negligence cases where the funding method was known were funded by means other than legal aid, such as conditional fee agreements, “before the event” insurance, legal expenses insurance and private funding. We considered the fact that there are viable alternatives to legal aid in this area when coming to the view that legal aid would not be justified in these cases and that—as has been a frequent refrain in these debates—limited funding should be targeted in other areas.
Given the way in which the debate was opened by the noble and learned Lord, Lord Lloyd of Berwick, it is probably appropriate if at the end I return to some of the specific and important points he made. Amendment 30A would enable the claimant to seek advice from an independent medical expert on the merits of their clinical negligence claim. It also provides for the appointment by the NHSLA of a single expert medical witness from a list maintained by the NHSLA and the AvMA. The noble Lord, Lord Howarth of Newport, expressed some concern that we have not always been able to coalesce around a single expert. My noble friend Lord Phillips spoke to this. The amendment itself would not establish the list from which an independent medical expert can be drawn; nor would it compel the NHSLA to participate in formulating a list. It would simply extend legal aid to cover the instructing of an expert on such a list, were it to be created.
In the example that he gave, my noble friend Lord Phillips referred to damages of around £4,500 or £5,000 and costs of £90,000. If ever there was a case for reform generally, I think he made it. We have certainly conducted a public consultation this year on how lower-value cases, such as the one he referred to, should be dealt with more efficiently in the county courts. Officials in the Ministry of Justice are working closely with the NHSLA in considering whether a lower-value scheme, similar to that which currently operates for low-value road traffic accident cases, would work for lower-value clinical negligence cases. Such a scheme would introduce fixed recoverable costs for various stages of a claim, and would therefore introduce transparency of costs for each case. Negotiations are currently going forward between the NHSLA and representatives of the claimants’ lawyers.
The other issue that is perhaps related to this was raised by the noble Baroness, Lady Finlay, the noble Lord, Lord Howarth, and my noble friend Lord Thomas. They expressed concerns about whether the abolition of legal aid might drive down the quality of the solicitors and firms that deal with these very sensitive cases. We are certainly aware of concerns that the removal of legal aid will lead to a drop in the quality of work done on clinical negligence cases because the contractual controls imposed under legal aid rules will no longer be there. It is important to remind the Committee that legal aid funds only 18 per cent of these claims. Therefore, there is already extensive expertise in this area in the CFA sector. Indeed, many of these are the same firms, which conduct cases under the CFA or legal aid as suits them best.
An important issue has been raised by several of those who have contributed to the debate about the commissioning of reports, particularly joint expert reports. The Government are very sympathetic to how this can be improved. We are working closely with the NHSLA and other stakeholders to discuss how joint expert reports can be commissioned wherever it is possible. This would involve the NHSLA commissioning and sharing expert reports on liability at an early stage. The point about these being shared with claimants at an early stage was made by a number of your Lordships. This could in turn help to encourage the early notification of claims.
I certainly consider that the key concern in both of the amendments to which I have referred is the absence of expert reports, making it difficult to establish whether a clinical negligence claim has merit. We recognise these concerns and those about how claims will be financed in the absence of legal aid.
My noble friend Lord Faulks described the Government’s response but one of the other things that we have done relates to after-the-event insurance. This is usually taken out by claimants in conjunction with a conditional fee agreement and covers a party against liabilities that they will incur if a case is lost. This insurance includes protection against any liability to the other party under an adverse costs order and provides for an up-front payment of the claimant’s own disbursements, such as medical expert fees. At present, where a claimant wins, their ATE insurance premiums are recoverable from the losing party and, in practice, are not paid up-front by the claimant. Under our reforms generally, recoverability of the ATE insurance premium is being abolished. However, the Government are retaining recoverability of ATE insurance premiums in respect of expert reports in clinical negligence cases. I know that this is an area to which we will return. The noble and learned Lord, Lord Lloyd, probably thinks that it is a less effective and efficient way of dealing with this.
My Lords, the point that we are making is that while the ATE insurance premium is being abolished generally, in the event of a CFA being agreed in a case of clinical negligence, the Government are retaining the recoverability of ATE insurance premiums. These are very rarely paid up-front. I understand that it is almost an insurance of insurance. If the claimant loses, the premium will not be recoverable from the claimant. It is often the case, too, that if it has been recovered from the other side, there is an increase at that time to take account of those cases in which the insurers will not get their premium.
I need to answer that; I do not think that is right. The position of a poor claimant is that they cannot afford to put themselves in hock for the premium. It is all very well saying that they can pay it later, but if they lose they have to pay it.
My Lords, I think the position is that if they lose they do not pay it. That is what we are retaining in cases of clinical negligence. In short, poor people will not have to pay up-front for the necessary expert reports in clinical negligence cases.
The problem is that you cannot get a conditional fee agreement unless you have a case, and you cannot get insurance unless you can show that there is a case. In clinical negligence, you do not have a case unless you have the medical reports. That is the problem. The Government’s solution, as put forward in Clause 45, does not solve the problem at all.
My Lords, we certainly believe that going down this road will mean that poor people do not have to pay up-front for their necessary expert reports. Indeed, that is why we draw a distinction between our reforms as they affect clinical negligence and the reforms that affect claims for damages in other areas.
We are working closely with the NHSLA and other stakeholders to discuss how the commissioning of these reports can be improved so that joint expert reports can be commissioned wherever possible. That would involve the NHSLA commissioning and sharing expert reports on liability with claimants at an early stage. There is a lot of agreement that that is what we should be doing—trying to get it at such an early stage. That, in turn, will help to encourage the early notification of claims.
My noble friend Lord Faulks and the noble Lord, Lord Wigley, expressed some concern about whether there would be a market for ATE insurance if it was not recoverable in other areas. We certainly recognise that these concerns about the funding of medical expert reports have been expressed, but the reality is that claimants usually take out ATE insurance. We expect the ATE market to adapt to the new arrangements. As my noble friend Lord Faulks accepted—although he queried whether it should have been done earlier, rather than during the passage of legislation—a working party has been set up to consider the recoverability of ATE and to ensure that premiums for expert reports reflect the risks involved. ATE insurance brokers have been asked to contribute to this working group. It is a concern to which we are alert and one that we seek to address.
Furthermore, we wish to reassure the Committee that we will be introducing qualified one-way cost shifting, which will be available in personal injury claims and, therefore, will by definition apply in clinical negligence claims. Qualified one-way costs shifting will mean that, in the majority of cases where damages for clinical negligence are sought, the claimant is not at risk of having to pay a winning defendant’s costs. We have therefore protected the claimant’s interests to ensure that they are not denied access to justice for fear of having to pay the defendant’s costs if they were to lose.
One of the main areas of concern in respect of expert reports is those cases concerning babies who suffer obstetric brain injury. This has been reflected in a number of contributions. While we consider that in most clinical negligence cases funding will be available through a combination of conditional fee agreements and ATE insurance, we have always recognised that there may be obstetric injury cases with high disbursement costs, which are currently funded by legal aid but for which it may be difficult to secure conditional fee agreements.
My noble friend Lord Faulks expressed concern as to whether the provisions in Clause 9 with regard to these exceptional payments, which we will debate later, would be fit for purpose and meet the task which we wish them to achieve. It is because of this that we have sought to make funding available. The safety net would be in the form of an exceptional funding scheme, which will ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights as well as those rights to legal aid that are directly enforceable under European Union law. In considering whether exceptional funding should be granted in cases engaging Article 6 of the European Convention on Human Rights, the director will take into account general jurisprudence set out by the European Court of Human Rights on Article 6. The jurisprudence takes into account the following relevant factors: the ability of the client to present his or her own case; the complexity of the matter; the importance of the issues at stake; and all other relevant circumstances. It is important to put this into context. Our impact assessment estimates that we will continue to spend £6 million of the £16 million we currently spend on clinical negligence cases on exceptional funding cases. We estimate that the vast majority of this £6 million—
I am very grateful to the Minister for giving way. Can he help the House as to whether it is the Government’s position that a cohort of cases such as brain damage cases, which are exceptional to the family but do not raise exceptional points of law, would nevertheless be regarded, if there was no legal representation, as a violation of Article 6?
My Lords, it would not be appropriate to second guess, as it were, what the director of legal aid casework might decide on any individual case. Suffice to say that the purpose of having Clause 9 in the Bill is to take account of cases where the client would find considerable difficulty in presenting their own case and where there is, indeed, a complexity—these are not necessarily cumulative—in the important issues at stake. The fact that we estimate that some £6 million would be spent in dealing with these complex and lengthy cases is indicative of the fact that we do take—
I apologise for interrupting my noble and learned friend again but does he regard it as satisfactory that cases falling within what my noble friend Lord Faulks described as a cohort should be determined not on a merits-based approach but on an administrative law approach? If an aggrieved party wished to challenge a decision of the director of civil legal aid, and what the Minister is saying applies, it will have to be necessary for the aggrieved person to show that the director of civil legal aid was Wednesbury unreasonable, which has only the remotest connection with the merits of the case. Is this really the system that the Government wish to inflict on people whose babies have suffered devastating perinatal injuries?
We do not wish to inflict the scenario which my noble friend indicates. The scale at which we believe the exceptional funding will be used is indicative of our expectation that exceptional funding will be available to assist these very profound cases. No one is disputing the seriousness of this. However, the amount of money that is being made available is not insignificant by any stretch of the imagination—£6 million out of the £16 million that is sought to be saved overall—which indicates that this measure is not just incidental but tries to address very directly the proper and sensitive concerns that have been raised.
My noble and learned friend referred to Clause 9 and to exceptional cases. He will be aware that a specific category of special exceptional cases is delineated in that clause: namely,
“advocacy in proceedings at an inquest under the Coroners Act 1988”,
where there is a “wider public interest determination”. Are the Government prepared to consider whether in this very sensitive type of case there could be a subsection inserted into Clause 9 which deals with the very difficult issue of clinical negligence instead of leaving it under the broad wording of subsection (2)?
I thought that I was going to be diverted down the tracks of coroners’ inquests. However, I take the point which my noble friend makes. We believe that the relevant provision already covers the matter. He draws a comparison between measures within the same clause. We will have an opportunity to return to that matter when we come to Clause 9. It is only right that I should consider the point, which I am sure was made with helpful intent.
The question of relative costs has been raised and one or two noble Lords have pointed to the reservations made by the NHSLA. It is fair to point out that as regards the King’s College research which has been referred to, the Department of Health has confirmed that in the context of the reforms as a whole, which include all the Jackson reforms, the costs to the NHS are expected to reduce substantially and not to increase. It is important to look at the matter in the context of the overall impact of our reforms: namely, that the costs will decrease.
The noble and learned Lord, Lord Lloyd, has sought to contrast what he believes will be the cost of his amendment with the costs he believes will be incurred under Clause 45(2). He will be able to reply shortly. He quoted my honourable friend the Minister, Mr Djanogly. I think that the noble and learned Lord recognised that Clause 45(2) is a clear attempt to address the concerns which are shared not just by him and me but by the Committee as a whole. His view is that it would be more expensive to go down this route than to adopt his amendment. One of the differences between our proposal in Clause 45 and the use of legal aid for clinical negligence is that it would be restricted to those who are otherwise eligible for legal aid where the ATE power of recoverability will provide access to justice to everyone.
I think that the noble and learned Lord acknowledged my next point when he gave his figures. We do not readily recognise his figures. We feel that the costs of the ATE market as adjusted would not give rise to the costs which he indicated. I noted all his figures very carefully, but I probably was not quite keeping up with them. He said that he did not expect me to comment on the detail of his figures today but asked me to provide an answer. That is the least one can do, given the amount of work that the noble and learned Lord has clearly put into this. As I say, we do not readily recognise the case that he put forward. However, we must undoubtedly reflect on the issue. It would not necessarily make sense to embark on something which led to considerably greater cost when the overall object of the reforms is to reduce cost. I hope that with the assurance I gave at the beginning that we will reflect seriously on all the important issues that have been raised, the noble and learned Lord will withdraw the amendment.
My Lords, as was to be expected, the debate has gone far wider than the limited purpose of my amendment because this is the first opportunity that we have had to consider clinical negligence as a whole, and there are other amendments in this group.
So far as my amendment is concerned, everyone has accepted that expert reports are the key to the problem. The question then is: what is the best way to fund expert reports? I am especially grateful in that connection for the support of the noble Lord, Lord Faulks, given all his experience in this field. My impression was that his view is the same as mine and, indeed, that of Sir Rupert Jackson, whereby Clause 45 is not the way ahead. That is the purpose of my amendment. I am also especially grateful to the noble Baroness, Lady Mallalieu, for saying that the amendment is only the minimum required. On that I entirely agree. If clinical negligence generally is to be covered, my amendment will fall away, but it is the essential safeguard if there is not to be wider coverage by legal aid of clinical negligence cases.
Of course I will not press the amendment because I cannot do so until I know the Government’s answer to the figures that I have put forward. However, if those figures turn out to be correct, as I believe they will be, then Clause 45 is not the way ahead and it is far better from the point of view of saving money for the taxpayer to adopt the limited degree of legal aid required for expert reports. I look forward to the answer to the figures I put forward and, in the mean time, beg leave to withdraw the amendment.
Amendment 28 withdrawn.
Amendments 29 to 31 not moved.
32: Schedule 1, page 116, line 1, at end insert—
“Social welfareCivil legal services provided in relation to a benefit, allowance, payment, credit or pension under—
(a) the Social Security Contributions and Benefits Act 1992,(b) the Jobseekers Act 1995,(c) the State Pension Credit Act 2002,(d) the Tax Credits Act 2002,(e) the Welfare Reform Act 2007,(f) the Welfare Reform Act 2011, or(g) any other enactment relating to social security.”
My Lords, I should like also to speak to Amendments 35 and 89. These amendments relate to the ability of claimants, the majority of whom are disabled, to appeal against decisions on their entitlement to welfare benefits. The intention behind these amendments is to protect some of the most vulnerable people in our society. The Bill as it stands would remove social welfare cases from the scope of legal aid, which would have an adverse and disproportionate impact on disabled people in particular, and would leave them unable effectively to challenge decisions when they are let down by the system.
Legal aid is currently available to assist individuals with a range of welfare benefit issues, from navigating complex benefit administration to reviewing and appealing against official decisions. When appealing against such decisions, advice is available to clients before appeal and tribunal, but legal aid does not cover legal representation—and there is no suggestion that it should. A number of noble Lords have already made the point that the welfare benefits system is complex, and more than half the welfare benefit assistance that is funded through legal aid relates to disabled people. However, despite the best efforts of all involved in a claimant’s initial application, mistakes are frequently made, and these are well documented.
The need for such legal aid is best demonstrated by the fact that nearly 40 per cent of all appeals against work capability assessment decisions are upheld. In addition, between October 2008 and February 2010—a period of just 17 months—60 per cent of disabled people who appealed were eventually found to qualify for employment and support allowance, even though they had initially been assessed as having no factors that would affect their ability to work. The proposals in the Bill would, every year, deny specialist legal advice for complex welfare problems to more than 130,000 people, of whom nearly 80,000 are disabled. Without legal aid, the ability of people to appeal against a decision would be undermined because the rules for benefit eligibility are extremely difficult to understand.
To give just one example, the complexity of the extensive legal precedents determining the criteria for being classed as virtually unable to walk make professional legal advice vital for anyone even thinking of appealing against a welfare benefit decision. We all recognise the need to make economies but the Government’s own impact assessment puts the spending on legal aid for welfare benefits at just £25 million, compared to a total legal aid budget of £2 billion. This is a relatively minor saving but it would have a major effect on large numbers of vulnerable people who need help with appealing when mistakes have been made about their entitlement to benefits. I also argue that failure to provide timely legal advice to assist disabled people who are put on the wrong benefit is a false economy that will almost certainly result in additional demands being placed on services such as the NHS, rather than delivering the savings that the Government are hoping for.
To make matters worse, the Bill is being considered at the same time that the Government are undertaking a dramatic overhaul of the welfare benefits system. With a reform on this scale, there will be a new and unfamiliar set of complexities to navigate through for both claimants and officials. During the transition, there is bound to be an increase in the number of inaccurate benefit decisions made and a consequent need for legal advice to challenge these.
I share the Government’s desire to reduce the number of appeals against decisions, but this reduction must not happen because the loss of legal aid prevents disabled people from challenging decisions. I therefore commend these amendments to the Committee as a means of securing justice for some of the most vulnerable people in our society whose needs are constantly overlooked. I beg to move.
My Lords, I strongly support the amendments so ably moved and spoken to by the noble Baroness, Lady Doocey. I recall her impressive speech on these matters at Second Reading. Some of us sat through 17 sessions of the Welfare Reform Bill in Committee and, in session after session, we came across the potential loss of important and valuable benefits on which many vulnerable disabled people depend.
Some of the changes will not be easily understood, and some will be seen as depriving this cohort of people of essential resources that would at least compensate for their disability or enable them to live with it. When they lose or are in danger of losing such benefits there will clearly be a strong feeling that they have been badly treated. If there is any dubiety in law with regard to the way in which they are losing, they will want to challenge that.
I put it to noble Lords that to introduce these two pieces of legislation simultaneously—tonight we are dealing with the legal aid Bill; tomorrow we are back to the Welfare Reform Bill on Report; and on Wednesday we are back to legal aid—given the combined effect that they may have for disabled people, is absolutely wrong. There should at the very least be a facility for those who may be deprived of benefits which are so important to them to challenge that in law during the opening period of the implementation of the Welfare Reform Bill. If, in due course, when things settle down, there is a need to change things, all well and good, but I remind noble Lords that the degree of benefit fraud in the context of disability is minimal. Therefore, it is a question of depriving people of resources to which they have been entitled, the loss of which will make a significant difference to their lives.
The Government should seriously look again at the cost implied by the amendment and the implications of the legislation to find a way in which disabled people and other vulnerable people affected by the Bill can at least have the basic right to challenge it in court.
My Lords, I intervene briefly not to support every last dot and comma of the amendment—not least because I have not heard what the Minister has to say about cost, which we cannot completely ignore—but to indicate my general sympathy with the concerns that have been expressed by the noble Baroness and echoed by the noble Lord, Lord Wigley. I indicated earlier my concern about the Bill extending to the social security area for a number of reasons. First, the Welfare Reform Bill, whatever its merits—I am a strong supporter of it as a whole—creates a certain amount of turbulence, to put it mildly, for a lot of people, including many disabled people and carers. They have great concerns, which may well lead them to want to challenge some decisions. They ought to be able to do so.
Secondly, there is an interrelation here with the concerns expressed about the absence of sufficiently effective proposals to come anywhere near replacing the availability of legal aid, or at least legal advice, in such cases. We know from a debate in the House only shortly before Christmas that citizens advice bureaux are feeling acute pressure in their ability to maintain, let alone enhance, their level of service. This may have come up earlier, before I was able to be present, but we know that law centres are also feeling acute pressure from expected losses of money from the legal aid changes. From the point of view of claimants in the social security field, as one or two people have said—including me on previous occasions—there is a double or triple whammy here: you do not get help from one quarter; you are steered to another quarter; but that quarter itself is being starved of resources and unlikely to be able to help you.
I make no apology for repeating things I have said on previous occasions: there is an absence of apparent—I choose my words reasonably carefully—joined-up government. Ministers have effectively said that they do not know what is the overall financial effect of this, because they know what is saved to the Ministry of Justice, but they do not really know what are the costs elsewhere.
I doubt whether they even know what will be the net effect on the Ministry of Justice. It is well known to anyone who knows anything about tribunals that the less help and advice that people have in social security tribunals and related matters, leading them to represent themselves, the more time will be taken at the tribunal trying to sort out what are the issues. Cases will get taken to tribunals which would not have been had people been well advised beforehand. There will be costs to the Tribunals Service in the Ministry of Justice that I am not sure are allowed for in the costing that the Ministry of Justice has ascribed to the savings on legal aid. We need more convincing answers on this than we have so far had. I do not want to see the amendment pressed to a vote tonight, but I hope that Ministers have their ears open on this one and will look carefully at the reality, as opposed to the optimistic forecasts of the original estimates of savings in this field.
My Lords, it is always a pleasure to follow the noble Lord, Lord Newton, so I am keen to come in at this point.
I support the amendments proposed powerfully by the noble Baroness, Lady Doocey. I shall focus on Amendment 32 but say just a few words on Amendment 35. Although I would not want to confine advice and assistance for social security claims before tribunals to disabled people, if it was to be confined to a single group, there is a strong case for that being the group, because of the high proportion of those who are affected who have additional needs over and above legal needs which affect their ability to exercise their legal rights.
That is brought out very well in the briefings we have received from Citizens Advice and Scope’s report, Legal Aid in Welfare: the Tool We Can't Afford to Lose. I also received a case study from Charnwood CAB, which is local to my university. I will not read it out because it is rather long and complex, but someone came for help because of the interaction between decisions on disability living allowance and income support. Then they ran out of time in appealing and were going to get in a real mess. It was only with the help of the citizens advice bureau that they were able to lodge an appeal. The CAB pointed out that that cost the taxpayer no more than £167 excluding VAT—since October, it would have cost £150.
That exemplifies the more general point of Amendment 32, which would put social security law back into scope. As the noble Baroness said, like it or not, social security law is complex and will remain so however successful universal credit is.
The Government's suggestion that people can turn to Jobcentre Plus or the benefits advice line for help with such cases has been described as incongruous by the president of the First-tier Tribunal, his honour Judge Martin. It is utterly incongruous when one considers that it is their mistakes that have so often given rise to the need for legal advice in the first place. According to Liberty, Community Links advice service recorded that in 2010, 73 per cent of benefit-related cases handled by its staff arose from errors made by the Department for Work and Pensions.
The president of the First-tier Tribunal also pointed out that the emphasis on the user-friendliness of the tribunal system misses the point, because the tribunal has no role to play in assisting claimants to decide whether to bring their appeal or to help them prepare their case. The experience of CABs and other agencies and research by the LSE shows that often the role played is to stop cases getting to the appeal tribunal, so, in a sense, saving the Government money, because the advisers know whether there is a case worth pursuing or not.
As the noble Lord, Lord Newton, said, the other suggestion is that people can turn to CABs, law centres and so forth. However, as the noble Lord said, these are under immense pressure. Not only that but sometimes people ask how what is happening now compares with what was happening in the 1980s, when we had social security reform and cuts. At the time, I was working at the Child Poverty Action Group. One thing that is making things much harder now is that in the 1980s local authorities were expanding welfare rights advice services, and they were able to help people to deal with the turbulence of social security reform and the changes being made. Now, local authorities throughout the country are cutting back on welfare rights advice services, and this is happening when law centres, like CABs, are under pressure. Therefore, that is not the answer either.
As has already been said, removing legal aid for help with social security law would be damaging to some of the most vulnerable people in society at the best of times, but doing so when we are facing the most radical change in social security law in 60 years, as the Government themselves bill it, could be seen as bordering on the vindictive.
I want to turn to a rather limited but important aspect of this issue. On our first day in Committee, the Minister and I had an exchange about whether legal aid was available for cases coming before the Upper Tribunal and the higher courts. I am sure that, like me, the Minister went away and did his homework. My homework confirmed that I was right: legal aid is available for advice before one gets to the Upper Tribunal. However, I was only partially right because in some cases it can also be available for representation. I sought advice from Roger Smith of Justice, who is a former colleague of mine, and this is what he said:
“Legal help is, of course, currently available for advice. The position on representation is a bit more complicated. Legal aid for representation is not available as routine for social security cases in the Upper Tribunal but has been available for further appeals to the courts. Legal aid for court representation will be withdrawn under the Bill.
Legal aid is available for certain specified appeals to the Upper Tribunal, basically where legal aid was available prior to the establishment of the Upper Tribunal but this does not include social security”.
Nevertheless, he continues:
“The Access to Justice Act allows funding in exceptional circumstances where proceedings are otherwise out of scope … and, therefore, can cover representation at Upper Tribunal cases. This is the provision that is used to provide representation in inquests but it covers all proceedings”.
The Child Poverty Action Group confirmed that it had legal aid for a social security case in the Upper Tribunal, even though, admittedly, it was hard to get.
Roger Smith also drew my attention to a very useful article in the CPAG’s Welfare Rights Bulletin by the group’s solicitor, Sarah Clarke. She points out that legal aid for social security matters at higher courts is being withdrawn despite the fact that the Ministry of Justice puts no savings on this at all. In fact, at our first sitting, the Minister said that this would save £1 million. In public expenditure terms, £1 million is so well within the margin of error that it hardly counts as public spending; it can simply be written off. The article is helpful. It says:
“In the future, social security claimants who find themselves faced with an incorrect Upper Tribunal decision, or who win their case at the Upper Tribunal but find themselves on the receiving end of an appeal by the DWP, HMRC or a local authority, could be facing the courts and the costs risks attached on their own or not at all. It also means that the big social security test cases which reached the higher courts by way of the appeals process, such as Zalewska on the lawfulness of the Workers’ Registration Scheme, Hinchy on the interpretation of the overpayment recovery test, Pedro, on the meaning of ‘family member in EU law’, and Mallinson, the seminal case on the interpretation of the law on disability living allowance, will not be funded in future.
In view of the complexity of the relevant law and procedure, the importance of what is at stake for the applicant and others, and the fact that many social security claimants are vulnerable and may be disabled or may not have English as a first language, and therefore are particularly disadvantaged in presenting their cases, it seems possible that, particularly in cases before the higher courts, a lack of legal aid could breach the rights of claimants under Article 6 of the European Convention on Human Rights”.
Given that an appeal to the Upper Tribunal has to be on a point of law; given the complexities of that law and how much is at stake in terms of the livelihoods of some of the most disadvantaged members of our society; given that, as Justice points out, even if the Supreme Court had agreed to a case because of its complexity and its importance, legal aid would not be available because the Government say that it is not complex or important enough; and given that the savings are so minuscule that the Ministry of Justice does not even normally record them, can the Minister explain to the Committee why the Government are withdrawing legal aid from this small yet important category of cases, and can he please justify this to the Committee?
My Lords, I am in entire agreement with what has been said by my noble friends Lady Doocey and Lord Newton and the noble Baroness, Lady Lister of Burtersett. I should be very grateful if, in responding on these amendments, my noble friend Lord McNally would tell the Committee whether in respect of later amendments that seek to ensure proper funding for CABs and advice agencies there is going to be a positive answer, because that will have a major effect on my whole approach to this part of the Bill.
It does not need repeating that cutting legal advice in relation to social welfare claimants is, on the face of it, utterly bonkers. First, the people seeking that advice are the most vulnerable in our society. I wonder how many people who are now in this Chamber have ever sought assistance under the Social Security Contributions and Benefits Act 1992 or the Welfare Reform Act and so on. There is a whole forest or jungle of social security law, and I ask anyone in this Committee who thinks that, because it is for the common man it is simple, to have a look at any of the legislation. It is a nightmare. I have given a bit of legal advice in law centres in my time. It was a nightmare when I did it as a young solicitor but it is a treble nightmare now. Someone said recently that the CAB advice manual for social security law ran to a couple of hundred pages, but it now goes well into the thousands.
I am most grateful to the noble Lord, Lord Bach. There are 7,500 pages, and the devil of it is that a lot of these statutes interrelate. In many cases, finding a way through this stuff is, believe me, a job for a lawyer and not a job for the harassed citizen. Do not let us be carried away by the telephone helpline. It will help in all sorts of cases but in very many it will not. That is because, first, the complexity will outrun the knowledge of the person on the phone. Of course, the answer is that they should then refer the person to someone else, but I have to tell your Lordships that these advice lines—and I have experience of them too—are very powerful instruments. The second reason is that it is a commonplace that people find it very difficult to explain the facts and so on in relation to these social security measures face to face, let alone down a telephone line.
Therefore, I hope that we will be honest with ourselves and that the excellent civil servants, the excellent Bill team and the excellent Front Bench spokesmen will recognise that this is not territory with which we are familiar. I suggest that we need to be a little humble before we say categorically that the status quo after the Bill comes into force will be sufficient to enable hard-pressed, often bemused and sometimes desperate people to access the benefits that we have legislated for them.
My Lords, let us face it, the next group of amendments covers almost exactly the same area as this one. I shall reserve what I was going to say until we reach my amendment in that group. However, in view of the comments made by my noble friend Lord Wigley about running all these Bills together simultaneously, I wanted to point out that—believe it or not—in the Moses Room this afternoon, going on in parallel with what was going on in this Chamber there was a Motion about jobseeker’s allowance. Aspects of the Welfare Reform Bill and the legal aid Bill are interwoven in an appallingly complex way.
We have just heard from the noble Lord, Lord Phillips, a very clear case as to why the whole exercise is going to be costly. I agree with the sympathetic point he was making for the Government: any change made to these forms of welfare help is almost by definition bound to involve extra cost and extra complexity, because it is yet another layer added to the thousands of pages that have to be understood by the professional expert. Then, one appears to be busily taking away, or making it much less easy to access, the professional help we have had in the past. There is also the point made that the CABs, which have been so marvellous in the past, are going to be shorter and shorter of money. The whole thing is becoming really worrying and I hope that the Government will reflect on this.
My Lords, like my noble friend Lady Lister, I often feel that after the noble Lord, Lord Newton of Braintree, has spoken, there is not very much to add. However, all noble Lords who have subsequently spoken have indeed made very valuable additional contributions. I would like to say a few words because this is a debate of absolutely central importance in our consideration of the Bill. We should all be extremely grateful to the noble Baroness, Lady Doocey, for moving as she did the amendment that she and colleagues have tabled. She raised an interesting and important point—among many others. Since such a high proportion of those who receive legal aid to support them in welfare benefits cases are disabled people, this policy may be in effect discriminatory against disabled people. That in itself is something that we ought to reflect upon. I hope that when the Minister replies he will be able to tell us whether or not this is the case, and if he thinks it is not the case, how he explains that.
The noble Baroness also reminded us of the high success rate of appeals and of appeals made by disabled people. Of course, the proportion of successful appeals is higher when people have been advised, when people appear personally in court, and when they are accompanied. If the Government are going to take away legal aid from welfare benefits cases, it raises the question of whether they want people who are entitled to receive benefits to do so. I believe that they do. I cannot believe that the Liberal Democrats and the Conservative Party do not want people who are genuinely and properly entitled to receive welfare benefits to do so. However, the reality is that if they take away legal aid in support of those cases, they are ineluctably going to prevent very significant numbers of people who should receive those benefits from doing so. I ask them fairly and squarely this question, and again I would like the Minister to respond specifically to this point: do they want all these people to receive benefits, and if they do, how do they suppose that they are going to receive those benefits?
Ministers at the Ministry of Justice have been pretty blunt hitherto in saying that they consider welfare benefits cases to be of lower importance than other categories of case which will continue to be in scope of legal aid. I would like to know—and again I ask the Minister to tell us in his reply—exactly why the Government believe that welfare benefits cases are less important than other categories of cases that they have determined should remain eligible for legal aid. I think that for people in poverty, welfare benefits are extremely important, and those people would be interested to know the Government’s explanation of their policy, just as we would be.
Of course, there are going to be growing numbers of these people. This is partly because of the recession, which is increasing unemployment and the hazards of life, and making much, much more difficult the personal, domestic, and financial circumstances of very many people. There is also going to be an increased number of people who wish to appeal against decisions that they should not receive welfare benefits, on account of the transition to the new incapacity benefit, employment support allowance, personal independence payments, and the whole panoply of welfare reform upon which the Government have embarked. This is undoubtedly going to lead to confusion, to administrative complexity, and to a higher error rate on the part of staff whose job it is to determine eligibility for welfare benefits. We are going to see an increasing number of appeals that people will very properly want to be able to make. The Government therefore need to have very good reasons indeed for why they are going to make it harder for people to pursue these appeals successfully. After all, they are expecting, by their own admission, to make savings to the public purse of only some £25 million net—a trivial saving, absolutely trivial, in the context of overall public spending.
What is going to happen to these people who do not get legal aid? They will try to go to other sources of advice, but the charities which might advise them are not going to be in a position to do so, as they have been telling us. The citizens advice bureaux in particular have been warning us very earnestly that they will not be in a position to provide the advice that they have been able to provide with the support of legal aid and local authority funding—neither of those, in large part, are going to be available. Would-be appellants—claimants—may then be driven to other kinds of private adviser. I dread to think what sort of advice they may receive from those sources. We are very aware in the immigration field that some extremely dodgy and dubious people offer advice who are frankly exploitative of people when they are in very great difficulties.
We will see an increase in self-representation: people will go to the tribunals to try and make their own case. The notion, to which the Government are so attached, that the tribunal system is a user-friendly, accessible, informal alternative to the court system, is a pipe dream. Of course it is highly desirable that there be more informal, more economical, more user-friendly systems of justice available. Again and again, attempts have been made to achieve that but, again and again, the system becomes less informal, more complex and more arduous to navigate, and people need expert help to find their way through. It is unrealistic of the Government to suggest that the tribunals system is somehow going to be there and that it will be all right for people to represent themselves.
The consequences of a policy that will result in people not being able to make their appeals in order to obtain the benefits that they should be able to obtain will include increased unemployment, particularly among disabled people, because if they do not have the tailored support that they ought to have, their chances of securing employment, with the odds already stacked against them because of their disabilities and in this very difficult labour market, will be further reduced. We will find more people in debt and suffering ill health, because poverty will mean that people will not be able to afford a proper diet or heating and will have to cope with anxiety about their poverty. We will see more cases of poor physical and mental health. All these predicaments will produce costs to other government departments. I fear that we will also see a greater resort to criminality as people despair and feel that there is no longer a just system available to them. I do not think that there will be savings to the public purse; there will be additional costs to the public purse. Above all there will be a great cost for all of us to pay in national shame.
My Lords, as my noble friend Lady Howe rightly said a few moments ago, other amendments later in our proceedings will return to the general question of legal aid. I will reserve some of my remarks for that later group of amendments, as my noble friend indicated that she, too, would do. However, I would be sorry to see the amendment proceed without as many voices as possible being raised around your Lordships’ House in support of what the noble Baroness, Lady Doocey, said today. As the noble Lord, Lord Howarth, intimated, this is of central concern. The noble Baroness was right about this at Second Reading and she was right to bring this amendment before the House today. I hope that the Government will reflect on the arguments that were laid before us.
At Second Reading I mentioned that an organisation of which I am a patron, the National Association of Child Contact Centres, had written to me expressing concern about the number of volunteers who are withdrawing from voluntary service because of the pressures that we are placing on them. That, in tandem with the reduction of resources being made available to Citizens Advice and other voluntary organisations because local authorities have to cut back on their funding, should cause all of us to stop and ask the kind of questions that the noble Lord, Lord Newton, properly put to us earlier. I am sure that the Minister shares many of these concerns. He would not want to see—any more than any noble Lord would want to see—people with spina bifida, autism, cerebral palsy or any number of physical or mental disabilities placed in a position where they cannot get proper or adequate representation or advice in order to pursue their cases. I hope that he will be able to tell us whether he has had direct discussions with organisations such as Leonard Cheshire Disability and Scope; and I hope that before coming to a final conclusion on these issues he certainly will.
My noble friend Lord Wigley was right to remind us at the outset of the increase in the number of complex questions that are now being placed before people who are dealing with disabilities. During my time as a constituency Member of Parliament I, like my noble friend—although we had very different constituencies; one in rural Wales and one in the heart of the city of Liverpool—was confronted again and again, just as the noble Lord, Lord Phillips, was when he worked as a volunteer in legal aid centres or on telephone lines, with complex and difficult questions. The noble Lord, Lord Bach, reminded us that these days the advice runs to more than 7,000 pages in a handbook. It is impossible to deal with these questions when, as we heard, they are incredibly complex and changing day by day, even as your Lordships consider them.
I was struck by a leading article in a Sunday newspaper that commented on the anachronistic nature of your Lordships' House. It went on to say, thank God for these anachronisms because last week in debates on the Welfare Reform Bill it was the anachronistic House of Lords that stood up for the voiceless and powerless people for whom no one else would speak. I suspect that your Lordships will have to perform the same role again.
My Lords, I support Amendment 32, tabled by the noble Baroness, Lady Doocey. It is generally acknowledged that attempts by government to simplify the welfare system are to be welcomed because the systems are complex and difficult. Despite the fact that legal aid has been available for appeals against decisions on entitlement, we have seen a very significant lack of take-up of the benefits to which people are entitled. Under the Government’s proposals, that legal aid will no longer be available. It is accepted by the Legal Services Board that dispute resolution and advice in social welfare law requires legal and technical competence. We know from Scope that 39 per cent of appeals against work capability assessments are upheld. Without legal assistance, people simply will not be able to meet the challenges that will enable them to retain the benefits to which they are entitled.
There will be 3.2 million people affected by the change to DLA alone, and 1.8 million will migrate from incapacity benefit to DSA or jobseeker’s allowance. People in those cases may be ill, seriously stressed, living in profoundly difficult circumstances, illiterate or incapable of dealing with correspondence. They may not recognise the importance of attending various assessments or may lose out simply because of their vulnerability. If a family loses the benefits to which it is entitled and cannot access professional help, inevitably there will be very serious consequences such as more children going hungry, not having enough warm clothes for the winter and not having heat in their homes. Parents will have to make appalling choices.
The consequence may be situations in which individuals go to tribunals in cases in which, had they received legal advice, they would have known that they did not have a valid case. A tribunal costs approximately £293. The cost of legal advice to help people in this situation is of the order of £150 to £200. As noble Lords said, there are serious concerns about the consequential increases in the number of cases going to tribunal. Put simply, there are very good financial reasons to continue to provide the current, low-cost legal help.
My Lords, client A was a single mother aged 20 with two young children. She had no permanent home and was living with her mother. She had no income other than a crisis loan and suffered from mental health problems. She had been awarded employment and support allowance, but this was suspended when she was admitted to hospital and missed a medical assessment. She was then informed that she was not entitled to employment and support allowance. The Leicester community advice and law service lodged an appeal on her behalf. The DWP agreed to reinstate her claim while the advice and law service explained her medical problems to the department.
Client B was also a single mother. She suffered from bipolar disorder and received employment and support allowance and other benefits. She had debts totalling £2,500, including overpayments of benefits and arrears owed to utility companies. The advice and law service assisted her in making successful claims for disability living allowance and associated benefits, thus increasing her income by more than £100 per week. Her housing benefit had been suspended. The service challenged the decision and housing benefit was reinstated and backdated, thus avoiding an escalation of rent arrears that ultimately would have led to the loss of her home.
Both cases took place in my home city of Leicester, but there will be examples from every city, town, village and hamlet in the country. What do the two stories have in common? First, both clients were helped by the same advice agency. The crucial point is that they were helped using legal aid. Advice was given and lives were changed. If this Bill goes through in its present form, this sort of life-changing advice would probably never have been given. Those two clients who had real legal problems would not have been legally helped.
It does not take much imagination or knowledge of the world to know that events in both cases would have gone downhill fast if advice had not been given. Not just the mothers themselves but, one suspects, their children would have suffered. The state would have had to pick up the pieces at a much later stage when much more damage would have been done. If the Bill goes through, welfare benefit advice will be out of scope, not just at the beginning but at the end, too. The costs of the Leicester law service organisation that took up this case are negligible. We have heard about the small costs of each case of this type. They are tiny compared with the social and real financial costs if there had been no early intervention.
How can the Government be so stupid to think that what they are proposing can do anything but harm? I speak with all the strength that I have in support of the amendment moved so passionately by the noble Baroness, Lady Doocey, who has given a lifetime’s service to disabled people. I agree with other noble Lords who have said that her amendment is central to what we have to debate and decide on in this Bill. Her amendment would return to the scope of legal aid: advice and assistance on eligibility for welfare benefits, applications for welfare benefits, and appeals against the decisions of granting authorities. Although the expertise of the noble Baroness, as has been said around the House, is in helping disabled people, her amendments, as she would be the first to say, cover a much wider group in society than merely those who are disabled; they cover all citizens who find themselves in that position.
The amendment is identical to that tabled in another place in Committee and on Report by my party. The first time—in the Public Bill Committee—the amendment was defeated on Division by the government parties, but on Report the Liberal Democrat Members of the Public Bill Committee tabled an amendment to the same effect. Unfortunately, because of a heavily guillotined timetable, and, I am sad to say, filibustering by those who should have known better, no debate and thus no vote was held. It is possible that had the vote been taken in another place, we might not have this question quite in the form it is in today.
There is rightly great strength of feeling from all sides of the Committee about the removal of advice on welfare benefits. There is a real fear that it will lead quickly to a downgrading in the efficiency of a system that, while not perfect, has worked pretty well over 40 or 50 years, and which, crucially, has been supported by all Governments of whatever complexion and by all major political parties in this country. There is consensus that the state has an obligation to provide this sort of help for the poor, for disabled people and for those who need help—it could be any one of us in certain parts of our lives—because it is both practical and humane.
There is great concern that if the Bill goes through as it stands we will lose that and, as my noble friend said, be diminished as a country in how we conduct ourselves. That is why this issue is so central. It will drive tens of thousands of litigants-in-person to try to deal with complex issues that they might not fully understand or be able to communicate. Thousands of people will be left without a lifeline. Those who have real cases will have to join a queue because tribunals will take so long to reach their cases. Then people might find themselves completely destitute: their homes at threat, relationships breaking down, and their children helpless. There will be that drive downwards that we see so often.
There is something that the noble Lord has not mentioned, which could be an important factor, bearing in mind his reference just now to children left helpless and some of his earlier case studies relating to single-parent families. I cannot remember the figure but there is a huge cost for every child taken into care. I would like the Minister to tell us the cost of each child taken into care as a result of the knock-on effects that could arise from these proposals. It costs tens of thousands of pounds every time, and I do not believe that all that has been taken into account.
I am grateful to the noble Lord as he is absolutely right about the social and financial costs of abolishing this sort of legal aid. It is impossible to say what they will be, but they will be huge, which I should have thought was fairly obvious.
The outcomes that we have talked about in this debate are not beyond the realms of probability, nor can anyone say that they would be unexpected. It is up to us in this Committee, and in the House perhaps on a future date, to decide whether the outcomes that have been described would cross the basic line of British decency that it is our obligation to defend. As part of that decision-making, we must look at whether these particular cuts are economic in the first place. Would they achieve even the Executive’s highly limited narrow goals of saving money?
The ministry plans to remove entirely funding for welfare benefits from scope. It claims that that will save £25 million a year. That sum normally goes to dealing with 135,000 cases per year. The advice is delivered, not altogether but pretty much through third-sector not-for-profit agencies such as Citizens Advice, law centres and many other advice centres. Advice goes to those seeking reconsiderations of decisions by the DWP and related agencies and to those appealing decisions before the First-tier Tribunals and then the Upper Tribunals. We have heard who receives the advice. Women are disproportionately users of this advice, as are ethnic minorities. As the noble Baroness indicated, 69 per cent—a very high percentage indeed—of those receiving advice are ill or disabled in some way.
As for who gets more complex advice—that relating to grounds for appeal—the published data for First-tier Tribunals show that of the 50,000 or so benefits-related cases heard a year, 90 per cent relate to disability-related benefits. That is hardly a surprise. For all its sins, jobseeker’s allowance is a simple entitlement for which to calculate eligibility. When there is a degree of subjectivity in deciding on the impairment caused by disability, agencies are more likely to make mistakes and thus require decisions to be appealed.
What does the advice funded by legal aid deliver? Colleagues in another place tabled a series of Parliamentary Questions to establish the percentage of people who win their appeals before tribunal with and without advice. The figures provided by the ministry show that in 2009-10 in welfare benefits-related cases, people were 78 per cent more likely to win if they had advice than if they did not have advice. For ESA the figure was even higher. People appealing employment support allowance decisions were more than twice as likely to win with advice than if they did not have advice. I point out what is obvious: those winning appellants are all legitimate claimants. They are not scroungers; they are not feckless—for the main part they have probably suffered some form of disability. They have been denied their rights by an emanation of the state, by the Executive, and they are legitimately challenging that decision.
I agree absolutely. It seems to follow because the people who practise this kind of law—and we know that they are not particularly well-paid lawyers—are very careful, on the whole, to give advice on the position in law and not necessarily what the claimant wants to hear. It is right that people with hopeless claims do not go forward and those with meritorious claims do go forward—as they should do.
These are legal problems—let us make no mistake about that. The truth is that the welfare benefits field, as we have heard all round the House from great experts, is very complex in many cases and people need help with these matters before they can decide the right thing to do.
Judge Robert Martin, the head of the Social Entitlement Chamber of the First-tier Tribunal, gave evidence to the Justice Committee inquiry some time last year. The 7,500 pages I referred to in an intervention are the reference material that was issued to the tribunals and which is now spread over six volumes. He made that point to the Justice Committee. He was asked by the chair, the right honourable gentleman Sir Alan Beith:
“Will it bring more people into the tribunal because they have not been advised that their case has no chance of success in the tribunal”?,
which I think is the question the noble Lord, Lord Thomas of Gresford, asked me. Judge Robert Martin said:
“Yes, because a general public awareness of tribunals is very low. Very little is put into public education of the law and how to seek redress for grievances. There is this risk that we will see many people who have been drawn to the tribunal believing it is the most appropriate forum to solve things, whereas it may be just a mistaken conception about the tribunal”.
“Legal help is so important in that triage function of sifting out cases which can be redressed but not through the tribunal or the court, and assisting those cases where the tribunal or the court can assist to have the case prepared in a way that maximises the chance of success”.
That gives the answer from someone who is, as it were, at the coal face. He went on to say:
“With the removal of legal help, we will have to spend a lot more time explaining simply what the tribunal is about rather than getting to the heart of the matter”.
This Bill is at its worst in this particular part. I argued at Second Reading—and I argue again today—that it is unconstitutional in that it removes access to justice for a large number of citizens, it is immoral because the state should not try to save a fairly small amount of money by targeting the poor and the disabled by removing their legal rights, and it is financially crazy because the savings will be non-existent. As benefits mistakes are not remedied, the problems will grow and the cost to the state will explode.
We are very proud of our legal system in this country and we encourage, quite rightly, foreign citizens to litigate their cases in British courts. They do so because of the extreme fairness and expertise of the British legal system from top to bottom. It is ironic, is it not, that we should be asking foreigners to litigate their serious cases in our courts because of the greatness of our system, while at the same time we seek to reduce some basic rights in law for our own citizens who are the least able to look after themselves?
My Lords, Amendments 32 and 89 seek to bring welfare benefit matters into the scope of legal aid funding, first, by deleting the exclusion for welfare benefits in Part 2 of Schedule 1 and, secondly, by adding social welfare as an in-scope category in Part 1 of Schedule 1.
The amendments are contrary to our reform programme in which we are focusing our resources on the highest priority cases. Currently legal aid is available for legal advice but not representation in relation to decisions on welfare benefits at the First-tier and Upper Tribunals. While we recognise that many people rely on welfare benefits, these cases are primarily about financial entitlement. In our reforms we have concentrated on the fundamental issues of liberty or safety. Given the need to prioritise funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme.
I am going to go on to this. I must say to the noble Lord that it would help if I can get further than just past page one. I will deal exactly with the issue that he has raised. As the noble Baronesses, Lady Mallalieu and Lady Howe, indicated, we will have a series of debates on a number of specific individuals who will be affected by reforms.
A number of noble Lords have cited their own experiences, either professional or personal, so I shall in part answer the question asked by the noble Lord, Lord Howarth, by giving a personal experience of my own. In 1976 I sat in the Cabinet Room in Downing Street with the Chancellor of the Exchequer and the Prime Minister—Denis Healey and James Callaghan—and during the course of a two or three hour meeting the pound fell from 1.95 to 1.45 against the dollar. By the time it hit 1.45 we had sent for the Governor of the Bank of England and decided to call in the IMF. Like many events, it has left a political scar, which is this: if you lose control of your own economy, all the concern for the poor and the disabled and the disadvantaged is as nothing because you cannot help them if you are not in control of your own economy.
Many of the debates that we have heard in the past few days, including this one—and probably the one tomorrow—have addressed the kind of issues that we have heard today. As I look around the House, I know that on all Benches there are people who have devoted their lives to the betterment of the citizens of this country. No one party has a monopoly on that. However, it is right to say that we have had to take hard decisions in difficult circumstances. I hear that £1 million is within the margin of error and that £20 million is trivial, but in a department like mine those are the figures that we are having to face and deal with. Therefore, although I understand some of the—
I am sure we all accept that it is imperative that the Government do not lose control of the economy, as the Minister puts it, but it is a question of how you gain control of the economy. Why do this Government prefer to deprive people of legal aid in their appeals for welfare benefits in order to save £25 million—they think, but very good reasons have been put by noble Lords all round the House as to why that saving would be illusory—while being prepared to spend much larger sums on freezing council tax, which will largely benefit more affluent people, or on weekly refuse collections? It is a question of priorities.
Politics is always a question of priorities. We keep on having this Second Reading debate. If we want a bit of knockabout, it has taken the Shadow Chancellor and the Leader of the Opposition 18 months into this Government to accept the cuts that the Government are imposing. We can have a knockabout if you want. We started this debate some months ago and what we are talking about is a department that is making its contribution to a roughly 20 per cent cut in public expenditure. That kind of adjustment was necessary—and I think has been successful—to retain the confidence in our economy which others have lost, and which has allowed us to borrow at lower interest rates and keep that readjustment within manageable terms.
Of course, as each department brings its proposals forward, tough choices are made. I am sure there are people in local government who are having to make tough choices, and when they make those tough choices people will extrapolate the consequences of those tough choices—but let us not pretend that there are alternatives to those tough choices. It is also interesting. I am not sure where we are on this. I could not intervene because my noble and learned friend Lord Wallace was in charge of that.
During the medical debate, the noble Lord, Lord Phillips, stood up and with a perfectly straight face, and supposedly making an argument on his side, cited a case where £90,000 was spent—£45,000 on legal fees and £45,000 on advice—to produce £4,500 of compensation for the person offended. It did not seem to occur to the noble Lord, Lord Phillips, but it did to me as a poor, innocent, non-legal layman, that there is something wrong with a system that absorbs £90,000—
I thank my noble friend for giving way, but I must just reply. First, the whole point of my alarming case was to show how desperately needed reform was. Secondly, it was to support the amendment because were aid available to get expert reports right at the beginning, you would know at the outset whether the case was a runner and some of these crazy expenses would be knocked out.
It still seems barmy to me. Likewise, with regard to the 7,500-page volume mentioned by the noble Lord, Lord Bach, and the noble Baroness, Lady Lister, in 13 years of Labour Government, did nobody think, “What kind of system are we producing that requires that kind of detailed explanation and advice?”? It seems to me that the approach is not reform, as the noble Lord, Lord Phillips, said, but forever putting another layer of wallpaper on an already dirty room. We are about reform and one of the things that we are reforming—again, it would be interesting in wider debates to hear where the Opposition is on this—
If the Minister’s best point is that the volumes on welfare benefits increased in the years of the Labour Government—as no doubt they did in the years of the Conservative Government before, and have done for 30 or 40 years as the system has got more complicated—that is a pretty poor argument for taking out of scope social welfare law, frankly.
That is not my best point. The best point is that we are having, supposedly, a national debate about welfare dependency and welfare reform. It may be a bit unsettling that a number of reforms are taking place at the same time, but my understanding is that the welfare reforms before this House are attempting to simplify a much overcomplicated process and that that had the broad support of the Opposition. I do not think we are going to win this argument, some of which we will return to.
Amendment 35 seeks to bring into scope legal aid for advice and assistance for appeals to the First-tier Social Entitlement Chamber in respect of welfare benefits that are payable under social security legislation as a result of disability. The intention of the amendment appears to be for legal help and representation to be provided for welfare benefit appeals in the First-tier Tribunal for those with disabilities. Currently, legal aid is available for legal advice only in relation to decisions on welfare benefits in the First-tier Tribunal. Legally aided representation is not available for tribunal hearings because they are designed, as has been said, to be user-friendly without the need for legal representation. Therefore, we believe that this amendment would increase the cost of legal aid by expanding it into areas where it is not currently available.
We recognise that this amendment is concerned about the impact on those with disabilities who are appealing to the tribunal. While we recognise that those with disabilities may face additional obstacles, the tribunal is a relatively informal venue. The tribunal itself will comprise a medical practitioner and a disability expert as well as a tribunal judge when considering disability living allowance appeals. Given this and the need to prioritise funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme. I hope that my noble friend will withdraw her amendment.
My Lords, I am grateful to all noble Lords for their support on these amendments.
I have listened very carefully to what the Minister has said and I cannot pretend I am not disappointed by the response. There is no doubt that we need to get a higher proportion of benefit decisions right the first time round but I have not seen anything to convince me that this is going to happen any time soon.
Huge numbers of mistakes are made in decisions on benefit, and these have catastrophic effects, not just on the person trying to claim the benefit, but on their entire family.
I will give you one example. Somebody that I have known for 30 years has incredibly complex problems with her back following an accident. She had worked all her life, and was forced to claim benefit. She is so badly damaged, having had multiple operations, that she is incapable of standing for more than three minutes at a time. She spends the majority of her life lying down to take the pressure off her back, and is on incredible amounts of medication. Initially she was assessed as having no problems whatever, and that she could work. While she is a highly articulate person, she is terrified of authority, and so without being pushed by a number of us, and having recourse to legal aid, because she had no money at all, she could never have appealed that decision, which was clearly absolutely wrong.
I therefore really worry about what is going to happen if this goes through. I really hope that the Minister will reflect again and consider bringing back some hope at Report stage. Meanwhile, I beg leave to withdraw my amendment.
Amendment 32 withdrawn.
House resumed. Committee to begin again not before 8.41 pm.