Report (2nd Day)
Relevant documents: 21st Report from the Constitution Committee, 22nd Report from the Joint Committee on Human Rights.
Schedule 1 : Civil legal services
11: Schedule 1, page 125, line 5, at end insert—
“Social welfare law (1) Civil legal services provided in respect of a social welfare decision relating 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 2012; or(g) any other enactment relating to social security.(2) For the purposes of sub-paragraph (1), “civil legal services” includes independent advice and assistance for a review, or appeal to a first-tier tribunal, of such a decision.”
This amendment is almost identical in scope to the one moved in the other place by the right honourable Member for Carshalton and Wallington, who is also chair of the Liberal Democrat policy committee on justice. It concerns the proposals in the Bill to remove legal aid for appeals against official decisions—
The amendment concerns the proposals in the Bill to remove legal aid for appeals against official decisions about entitlement to welfare benefit. These proposals will seriously inhibit claimants’ access to justice, will not deliver the savings that the Government hope for and will create very serious problems for some of the most vulnerable people in our society.
The amendment is more modest in scope than the one that I proposed in Committee. It would retain legal aid only for people with complex welfare benefit issues, to help them to challenge government decisions by appeal to a First-tier Tribunal. It would not retain the provision for legal aid to help with more general tasks such as form-filling, nor would it go beyond what is currently available.
Nearly six out of every 10 cases which currently receive legal aid for welfare benefit issues involve either disabled people or families with seriously ill or disabled children. The Government consider that these cases have a low priority when compared to safety, liberty and homelessness, but some disability benefits provide or protect liberty, particularly in relation to mobility and maintaining independence, which are so important. These benefits are crucial to many disabled people; they provide just enough money for those people to avoid poverty and to make some small contribution to the additional costs resulting from their disability.
The importance of maintaining legal aid for claimants can be judged by the fact that in six out of every 10 successful appeals against employment support allowance decisions, the claimants were originally deemed to have no factors affecting their ability to work. The Government’s own equality impact assessment acknowledges that disabled people and individuals with specific disabilities are likely to experience a greater impact under some of these changes. The decision to press ahead with the proposals despite that assessment sends a very confused message to the disabled people that the Government have promised to protect.
Legal aid for welfare benefits costs about £25 million a year. Limiting advice to reviews and appeals, as proposed in the amendment, would save £8.5 million, which would reduce the total cost to £16.5 million a year, which is less than 1 per cent of the legal aid budget—but, crucially, it would help 100,000 people. If claimants are denied legal aid to appeal against wrong decisions, their situation will get worse, intervention at a later stage will cost much more and there will be a knock-on cost for other public services.
We are also likely to see a much greater backlog of tribunal cases because panels will be faced with clients who are unable to put together a coherent case because of their lack of welfare benefit knowledge. Tribunals were designed to be informal, inexpensive and accessible but for large numbers of people the very thought of attending a tribunal can be very intimidating. How can the Government seriously expect people with no legal knowledge to be able to negotiate the complex nature of welfare benefit law and to have the expertise needed to be able to decipher more than 9,000 pages of advice from the Department for Work and Pensions? These people are going to have major problems mounting an appeal because they will have no idea what to appeal against. As Judge Robert Martin said:
“If the tribunal is not supplied with the best evidence, the quality of justice is likely to suffer”.
To make matters worse, the Bill is being proposed at a time when the Government are carrying out one of the most substantial reforms of the welfare system in a generation. This will almost certainly result in a huge number of mistakes and a similar increase in the need for appeals.
Surely our overriding duty in this House is to protect those people who are unable to protect themselves. The consequences of wrong decisions for disability benefit claimants can be catastrophic. This amendment would allow some of the most vulnerable people in our society to fight for the benefits to which they are entitled. I commend it to the House, and I beg to move.
My Lords, my name is to the amendment, along with those of the noble Lords, Lord Pannick and Lord Bach. I intervene at this early stage partly for that reason and partly to support many of the points that my noble friend made without reiterating them.
We need to bear in mind that this proposed change to legal aid does not take place in a vacuum. It takes place at a time of great actual or potential turbulence—or at least change—in the benefits system, arising to some small extent in respect of housing from the Localism Act, and to a much greater extent from the Welfare Reform Bill. I do not want anyone to think that I am opposed to the Welfare Reform Bill. I had some reservations about parts of it but, like every other group in the House, I support its basic thrust. However, we ought to be absolutely clear that you cannot have change on that scale in the social security system without a lot of gainers, a lot of losers and a lot of people who will want to test, question and seek advice on the changes that affect them if they feel aggrieved.
There are many such changes. There is the housing benefit cap. There is the benefit cap, which is probably less serious in this context because fewer people are supposed to be affected. A huge number of disabled people and carers will be affected. In the area of housing benefit, many tenants will be affected by what is known as the spare-bedroom tax. These are not trivial numbers. The DWP’s estimate, given to me by the Minister, of the number of people affected by the housing benefit cap—the bedroom tax, if I may use a tendentious phrase—is 670,000. The number of people potentially affected by changes to the disability and carer allowances in the Welfare Reform Bill is of the same order if the figures I remember being given in Committee are right. Therefore, we are talking about potentially well over a million people.
If I was still an MP, I would be a bit worried. That is an average of around 2,000 people per constituency. They will all have relatives, some of whom will be affected and many others of whom will be upset by what is happening or could happen to their relatives. They will not all have a great grievance but there will enough of them who do. They will be bewildered and in some cases frightened, as we know from the e-mails we all received over the Welfare Reform Bill. They will not know where to turn but they will know that they need advice and help from somewhere. Let us not underestimate the scale of the impact of this change.
My second point, in what I hope will not be too long a speech, is: does it matter? There has been something of a flavour to Ministers’ comments that the only things that matter enough in this area to warrant a continuation of legal aid are those that threaten life or liberty—for example, orders under the Mental Health Act—or highly specialised areas such as children’s special educational needs and several other children’s issues. I pay tribute to the Government for the fact that they have recognised some of those points. However, there has been a slight flavour that welfare rights and welfare benefits generally did not quite rank in this league. There has been a sort of flavour that it is only a bit of money after all, although I do not think that anybody has actually said it. However, no one who has been Secretary of State for Social Security would harbour the illusion that the £10 or £20 a week that people could lose—for example, under the housing benefit cap if they have a spare room and do not move—is a trivial sum. It may not be a great amount to all of us in this House, but there are a lot of people in this country to whom £10 or £20 a week makes a great difference to whether they can heat or whether they can eat. I do not want to exaggerate this matter or get emotional about it, but some people will be frightened at being hit by some aspects of these changes and they will need somewhere to turn to.
I wish to quote a couple of points from the letter that the noble Lord, Lord Pannick, wrote on behalf of all four of us. I stress that the letter was written on behalf of all four of us. I had agreed it; I just was not present to sign it. It states:
“81% of all cases heard in the First Tier Tribunals relating to benefits are for benefits relating to disability … in 2009/10 an appellant at the First Tier Tribunal that received advice before going to the Tribunal was 78% more likely to win their appeal than an unadvised appellant”.
Then there is another point to which I may come back in a moment: namely, that nobody believes that the savings the Government have claimed for these proposals will actually be realised. The CABs, the Law Society and the report produced by King’s College all reckon that a lot of theses savings are illusory and that the knock-on effects on other government departments will be substantial but have so far been completely unquantified.
My third main point is about the effect of all this on the places where people can and do turn for both direct and indirect help: namely, the citizens advice bureaux, which are universally admired and supported, and are valued in this House and the other place, and a whole variety of law centres and other big society advisory services throughout the country. The CABs have just published a report which I hope everyone will read. I do not wish to quote the whole of it, just a bit from the introduction and the conclusion. In between there are a lot of case studies. The introduction states:
“Specialist advice has become a core part of the CAB service. Our frontline caseworkers and managers have told us that the impact of the proposed changes to legal aid on specialist services will be devastating. The overwhelming majority say that it will be impossible to provide a specialist service, whilst over half say that it may be impossible to continue providing any advice service at all … And it's not just the Citizens Advice service that will be affected - law centres, independent advice agencies and some solicitors' firms will find it difficult to continue to operate”.
After mentioning various cases, the conclusion states that if these cases,
“could be empowered to help themselves without specialist advice, casework and support from legal aid, then every CAB would rejoice, but that is not the reality. It will be a massive failure in the justice system if they are abandoned”.
I shall conclude quickly, but I should like to make just one other point. The Government have, in a way, acknowledged that there may be a need to support other advice services, but we still have no real idea how that is to be done. We have had a promise of a one-off £20 million, which is not a lot in this context. A review is going on which has not yet been completed and whose results we do not know. We have no serious commitment from the Government as to what they will do when they have the results. The nearest we have to that is a comment on the King’s College study to which I referred, which states:
“We are committed to the not for profit sector and have committed £20m this year to improve the efficiency and effectiveness of advice services, but this does not mean that the Government will meet all demand in the future”.
I would not want to back off from supporting the amendment on the basis of a vague promise that something along those lines might be done. It is a classic case where we are entitled to ask another place to take another look, and that is what I hope we will do.
My Lords, in the background to the undoubted need to cut legal aid for economic reasons, it is undoubtedly fair to take as a starting point the Government’s realistic decision to continue to fund judicial review for welfare benefit decisions. In their 2010 Green Paper, the Government gave examples of where judicial review would be used, and is used, for benefit cases. I quote:
“As with other areas of law, funding for judicial review will continue to be available for benefits cases. Such cases are likely to occur where there are delays in making decisions on applications for benefits, or delays in making payments, or whether there has been suspension of benefits by authorities pending investigation”.
None of those examples of judicial review is based on the merits of the case in question; and the problem with judicial review is just that. Where legal aid is available for judicial review in benefits cases, it will not avail a single potential litigant when the decision taken is simply wrong, the evidence has been mis-analysed and misapplied, and the factual decision is unsustainable. That is not what judicial review is for.
Bearing that in mind, I have had to think hard about the balance between wishing to help the Government to fulfil their aims to cut legal aid in a realistic way and those determinations of principle and conscience that some of us have held to for quite a long time. I applaud the measured and economical way in which my noble friend Lady Doocey moved the amendment. She has great experience in dealing with these issues and enormous knowledge of them. Over decades, she and I, and a number of others on these Benches, have attended debate after debate within our party in which the sort of principles that she espoused have been affirmed, reaffirmed and re-reaffirmed.
One of the underlying principles behind those principles is that legal aid advice should be available to protect the most vulnerable, who find themselves at a considerable disadvantage, without equality of arms with the state. As has been said, a very high proportion of people who currently obtain legal aid in relation to welfare benefits suffer from disability. I do not suggest for one moment, because it is not the fact, that all people who suffer from disability are less able to represent themselves. Sometimes, however, that is true, and that, perhaps relatively small, cohort of disabled people are the very most vulnerable in our society. I am seriously troubled that, for what may not be a real economy, we intend to remove legal aid from that group.
I would be perfectly happy—well, perhaps not perfectly, but getting towards reasonably happy—if I were convinced that the new advice services fund, which has apparently been announced as available from early March to support free advice organisations that have been affected by reductions in public spending, would have sufficient resources for a sufficiently long period for those organisations to continue to provide that advice. I know that the noble and learned Lord, Lord Goldsmith, has spoken on this subject in a number of our debates in Committee and on Report.
I hope that this may be one of those debates—perhaps a rare one—in which the Minister will respond to the debate and that, if the Question is put, the House will consider the merits of the debate and be prepared to be flexible in dealing with the arguments put. If the Minister were to tell the House that enough money will be made available on a fairly long-term basis to ensure that, for example, citizens advice bureaux and law centres were able to provide the higher level advice which they have been offering up to now on welfare benefits, I might not be prepared to support my noble friend’s amendment, but I have not heard that and I doubt that I will hear it during this debate. As I understand it, £10 million is to be made available to citizens advice bureaux up to 2014, which is significantly less than half of what they need, even making appropriate economies to meet the exigencies of the current situation.
My conclusion is that the money to be made available will not mitigate against the cuts in legal aid and still leave citizens advice bureaux and other advice centres extremely financially vulnerable. At the end of the day, will we make any savings in this context in any event? If people cannot obtain legal aid and have to go through the stress of presenting their own cases, or if they are unable to present their own cases and end up in the hands of mental health services or other local authority services which cost a great deal of money, it is very likely that there will be a negative impact on public finance from the removal of legal aid in this area, despite the continued funding for judicial review.
My present position is to support my noble friend Lady Doocey, particularly having heard the speech of my noble friend Lord Newton, who has great experience in these matters at a very senior level, unless we hear from the Government Front Bench that there is significant movement on this issue.
My Lords, we have heard admirable and powerful speeches. The noble Lord, Lord Newton, said that he was not going to get emotional, but his speech was moving as well as entirely persuasive.
Aside from the constitutional case, the moral and practical cases for keeping welfare benefits within scope of legal aid are overwhelming. We are moving into a period of major change in the social security system. A situation in which errors in the administration of the benefits system are likely to increase and, at the same time, the possibility of redress is to be reduced cannot be one that we can look forward to with any satisfaction or confidence. It is liable to create confusion, misery, damage, alienation and additional cost. There are going to be severe reductions in benefits and at the same time there will be the move towards the introduction and implementation of universal credit, which Ministers have been pleased to tell us represents the greatest transformation in the welfare system since Beveridge. I have seen very varying estimates of the number of people who may be affected by this between 2013 and 2017 but it could, I am told, be up 19 million.
The CPAG handbook, which sets out the regulations and the case law, consists of 1,620 pages and is going to have to be almost entirely rewritten. It will be a period in which there will be immense pressures on people in need and on decision-takers. Those decision-takers will typically be junior officials, and it is no particular criticism of them to anticipate that the error rate in their decision-taking will rise. It always has risen with significant changes in the benefits system. Therefore, the need for advice, assistance and representation is going to be acute. It will be a period of turmoil in which the rules will be almost continuously changing. For example, in the case of housing benefit, there are the present rules but there is to be a new set of rules that will come in in March 2013, and then there may very well be revisions to follow in 2014 or 2015 following the review that the Government have agreed to undertake.
Very sensitive and very controversial decisions are going to be taken as a new body of case law is developed. Let us consider the situation of disabled children. A child who is categorised as disabled will see their weekly benefit fall from £56 to £27 a week. On the other hand, a child who is categorised as severely disabled will see a modest increase in their benefit from £74 to £76 a week. Depending on which side of that definitional line the child falls, there will be a difference of £49 a week in household income, and that is an enormously important difference. There are going to be numerous households and families who are bitterly disappointed and, indeed, desperate in consequence of decisions that are taken in this regard. The tribunals will make these decisions, but surely it is wrong for parents not to have legal advice to enable them to decide whether they ought to challenge such decisions.
Alternatively, let us take the case of jobseekers. A new rule is to be introduced that if a jobseeker fails “for no good reason” to apply for or accept a particular placement, he or she may be sanctioned by the loss of universal credit for up to three years. That is a draconian sanction. In such a circumstance, the decision-maker and the claimant may have very different views about whether the reason the placement was declined was good or not. Can it be right to deny people three years-worth of benefit and, at the same time, deny them legal advice to enable them to judge whether they should contest that decision? There are other instances that I could give arising out of the prospective changes but I want to be brief.
I think that withdrawing legal aid from people in such situations is excessively harsh; indeed, it is reckless. A better thrust of reform would be to improve the quality of decision-taking. I just point out that the availability of legal aid enables well founded challenges to be made where there may be systemic flaws in the system, and it is for the benefit of the Government and of the administration of the system that people should be able to make these claims.
The amendment moved by the noble Baroness, Lady Doocey, is a good one, I think, but I prefer the amendment that I look forward to my noble friend Lord Bach moving, which would take things rather further. I do not know whether Amendment 101 in the name of the noble Lord, Lord Shipley, will be moved, but I do not support it. It would allow the Ministry of Justice to provide discretionary funding here and there. I think that amendment is unnecessary because, as I understand it, the department already has such discretion, and, secondly, it is insufficient because we simply cannot rely on the use of such discretionary funding to ensure that people have the help that they should have.
I very much look forward to the speech of my noble friend Lord Bach and I hope that the House will approve Amendment 12. I also hope that it will approve Amendment 11.
My Lords, I am a signatory to Amendment 12. I am very happy to support the sentiments expressed by the noble Lord, Lord Howarth, and I support what the amendment says about extending this to the Second-tier Tribunals as well as the First-tier Tribunals, which are mentioned in the amendment by the noble Baroness, Lady Doocey. We have known each other longer than either of us would care to recall. I know that this is not some passing fancy on her part. She has had a lifelong devotion to the cause of disabled people. She spoke with great eloquence and conviction in Committee and she has been courageously persistent in our proceedings to raise this matter today. In the long and distant past, I worked for five years with children with special needs. Many of us in the House—the noble Lord, Lord Howarth, is one—have had personal experience of people with disability and know, as one noble Lord said earlier, some of the most vulnerable people in society. Surely how we protect and treat them is a test of how civilised we are as people.
Four out of five cases heard in the First-tier Tribunals relate to people who are disabled. Despite what the noble Lord, Lord Carlile, said, he is right to say that disabled people are as capable as anyone else in dealing with their own affairs, but 78 per cent of those receiving advice before going to a tribunal were more likely to win their appeal than those who did not. Clearly, having professional, legal advice pays off. Who would we take that advice away from; who would we take this professional care and help away from? Disabled people will be left to their own devices. Inevitably, that will lead to more social exclusion and innumerable negative results.
Secondly, we have been told again and again that we have to do these things for economic reasons, but I hope that, when the Minister replies, he will respond to the points made by the noble Lord, Lord Carlile, about the so-called economic savings that might be brought about by these measures. As the noble Lord, Lord Newton, has told us in his remarks, it is highly questionable. There is empirical research—an academic study—by King’s College. In its report, United Consequences, it flatly repudiates and rejects the idea that savings will be made. Citizens Advice says that every pound spent on welfare benefits potentially saves the state £8.80. I certainly would want to hear from the Minister that he repudiates those findings before the House reaches a conclusion on these questions; what analysis he has made of those reports; and how, therefore, we can justify doing this on purely economic, austerity measure-based arguments of the kind that we have heard so much about during our proceedings.
The third point, which was touched on by the noble Lord, Lord Newton, and to which others have referred, is about who will pick up the pieces subsequently. Many of us have received a copy of the Citizens Advice report, Out of Scope, Out of Mind—Who Really Loses from Legal Aid Reform. That states:
“When Government consulted on the proposed changes to the scope of civil legal aid, 95 per cent of respondents did not agree with the proposals”.
It goes on to say:
“Official data shows that 80 per cent of social welfare cases achieve positive outcomes for clients, which can involve savings for other services”.
That backs up the point I made a moment ago. The report concludes:
“However, it is also clear that they would not have achieved these positive outcomes on their own. If they could be empowered to help themselves without specialist advice, casework and support from legal aid, then every CAB would rejoice, but that is not the reality. It will be a massive failure in the justice system if they are abandoned”.
It will be a massive failure in the justice system if they are abandoned. That is what we are being asked to vote on today and I hope that the House will support the noble Baroness, Lady Doocey, and the noble Lord, Lord Bach, when we decide on these matters.
My Lords, I agree with other speakers that during the passage of the Bill we have heard many heart-warming speeches on the importance and the practical benefits of helping people with a disability. I very much support what the noble Baroness, Lady Doocey, and others said in this debate. The Bill will lead to something like 75,000 children and young people aged under 25—it is the raising of the age level that my amendment addresses—losing access to legal aid each year.
Research by JustRights shows that as many as 80 per cent of these young people, as well as being vulnerable on account of their age, fall into one or more additional categories of vulnerability, such as being a lone parent, a victim of crime, or having a disability or mental health problem. How are these young people expected to cope when they have problems if they cannot obtain legal aid? They will not have families to back them up and give them advice, which other youngsters at least may have.
Amendment 21 has modest aims. It seeks to protect legal aid only for the most vulnerable of these young people, including those with a disability, those who have been in care and those who have been victims of trafficking—which, alas, is a growing trade. It is hard to think of groups of people who are more vulnerable than they. Of course, I wish we could retain legal aid for all young people. Youngsters are rarely equipped with the knowledge, skills and legal capacity to resolve their problems without expert advice. Therefore, it will be important that we do our best for this group. This applies particularly to vulnerable young people who are more prone to experiencing multiple and severe problems and who are therefore far more likely to require specialist legal intervention to prevent their situation escalating and spiralling out of control.
It is vital that all vulnerable groups listed in the amendment are protected. However, I will say a few words about young people with a disability. Amendment 21 would protect young people with a physical or mental health impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. We know that disabled young people are more likely than other young people to experience very complex legal problems, and are also more likely than older people with disabilities to experience them. There are significant precedents for extending additional protection to this group, in recognition of the fact that they may need this help. For example, the Connexions service, which was set up to provide help and advice to young people aged 13 to 19, extended this help to young people up to the age of 24 who had a disability or learning difficulty. It did so because it saw that it was practically needed.
JustRights gave me a case study about which I will tell noble Lords. Chantelle was 18 when she came to a law centre for help. She had been born with cerebral palsy and had great difficulty walking. Her parents had to drive her to college. They were worried that they could not afford to buy her a car and that she would be unable to attend university. They had applied for disability living allowance for Chantelle, but that had been refused. The law centre helped Chantelle to appeal, gathering evidence from her school and her hospital specialist and representing her at the benefit tribunal hearing. Chantelle was successful in her appeal and was awarded lower rate care and higher rate mobility for DLA. She swapped her mobility payment for a Motability car and passed her driving test. She now has a place at university and will be able to drive herself there each day. That will make a huge difference to her independence and quality of life, but think also of the extra sum of money it will save the rest of us if she is able to qualify and earn her own living.
What will the consequences be for these young people if they cannot get advice? Research by Youth Access has shown that vulnerable youngsters are significantly more likely than the population as a whole to experience stress, violence and homelessness if they do not manage to get good legal advice at an early stage. It has calculated that each year 750,000 young people aged between 16 and 24 become mentally or physically ill as a result of their unresolved social welfare problems. That is costing the NHS at least £250 million a year, much of which could be avoided if they had received better support.
It cannot make any sense to deny vulnerable young people access to the legal advice they desperately need to resolve their problems and turn their lives around, so I very much hope that everyone will support my amendment, Amendment 21, when we come to it, and the other amendments in this group, all of which make very important points. Above all, I hope the Minister and the Government will have listened and will take action as a result.
My Lords, I have put my name to Amendment 46, which would maintain legal aid for all children. I thank the other noble Lords on all sides of the House for putting their names to this amendment. I have also put my name to Amendment 21, along with the noble Baroness, Lady Howe, who has spoken eloquently and passionately, as always.
To illustrate the reasons why I have put my name to these amendments, I shall give three stories, which are supported by the Children’s Society, that were told by young people about their experiences of attending court. They are about migrant children who had to go through immigration cases.
“I felt very scared, terrified in fact. It was such an official atmosphere, and I felt small and vulnerable. You know that decisions that affect the rest of your life are made in this one morning, and I just felt so scared knowing that”.
“I had a solicitor and she had explained what was going to happen before we went, but even that could not have really prepared me. I was lucky because I had a solicitor. I had a barrister at court who was able to argue for me. Without him I don’t know how I would have coped”.
“The Home Office person made me feel scared and the whole time kept on saying I was lying and that I should return home; this made me feel upset and angry as I knew that I was telling the truth. My barrister was great though and kept on arguing back about my case”.
This convinces me that a different approach is needed when it comes to children because children are fundamentally different from adults. They generally have a lesser capacity to make complex decisions that will affect their future and will not always be able to understand the full consequences of their decisions and actions. Equally they do not have the capacity to represent themselves effectively in legal proceedings or to engage in detailed evidence gathering to support their case.
The Children’s Commissioner for England, Dr Maggie Atkinson, has said:
“Children, by virtue of their age and capacity, will not be able to present their case effectively in the majority of proceedings. Failure to afford children effective access to justice in cases engaging their civil rights and obligations will be in violation of Article 6 ECHR. It will also—even in immigration cases that do not benefit from the protections of Article 6—prevent them from being afforded their substantive rights and an effective domestic remedy for breaches of those rights”.
The Government have recognised that children need special consideration. As my noble friend Lord McNally said in response to a Question on legal aid:
“As far as possible, our intention is that, where children are involved, legal aid will still be provided”.—[Official Report, 7/7/11; col. 343.]
However, in reality the Bill will remove legal aid from 6,000 civil justice cases in children’s names each year, compared with provision in 2009-10. In a letter to the Times, the top six UK children’s charities pleaded with the Government not to abandon these 6,000 children, who will have no other choice but to represent themselves in court, with no one to protect them and manoeuvre them through the legal system. The Government have not explained why legal aid is being kept for 35,000 children a year but is being withdrawn from the equivalent of 6,000 children a year.
While there is provision in the Bill for,
“Children who are parties to family proceedings”,
and cases involving the,
“Unlawful removal of children from the United Kingdom”,
by their parents and, most recently, for some clinical negligence cases, legal aid is not to be provided if they are party to legal proceedings generally: for example, in immigration, welfare, housing, education and the majority of clinical negligence cases. Surely in our society it is unacceptable that a child involved in legal proceedings, who will have no financial resources to pay for their legal advice and representation, will be expected to present their own case in an adult legal system as a litigant in person—something many adults would struggle to do effectively.
It is also worth highlighting that legal aid is already restricted to those who cannot pay for legal assistance by any other means and therefore provides a safety net to ensure protection and equality for the vulnerable and disadvantaged. Ending legal aid for whole areas of law will affect the poorest and most vulnerable and marginalised families. Many children are likely to suffer as a knock-on effect of limited access to justice for their parents and carers. This will be particularly important in areas such as housing, welfare, immigration and debt, where children are affected by their parents’ lack of financial resources and ability to navigate the legal system, which may be hindered by a number of factors, such as parental disability, language barriers, poverty and mental health issues.
The Justice Minister has stated that there will be a safety net in the form of the exceptional funding scheme. This would come into play; if not, giving legal aid would breach individual rights under the Human Rights Act 1998 or European Union law. However, the Government have not published details of the full scope of the new scheme or how it will function. I would be grateful if the Minister could enlighten us as to how this will work, to put our minds at rest.
The impact assessment states that the Government anticipate that only 5 per cent of excluded cases for education will gain exceptional funding, and no cases for immigration will. The Children’s Society has estimated that just over 4,000 cases involving under-18s will be excluded from scope and will not receive exceptional funding. If the Government intend to process significant numbers of cases through the exceptional funding route, new arrangements are urgently needed to ensure that this does not result in a slower or more costly process or, worse still, that these cases will simply not receive legal aid funding. This would be detrimental to children and young people.
The Minister stated very strongly that in civil cases claims brought in the name of a child are usually conducted by their parents acting as the child’s litigation friend rather than by the child themselves. He said:
“The civil justice system as a whole does not generally require children to act on their own behalf”.—[Official Report, 16/1/12; col. 447.]
However, here are some very clear illustrations of how that is not always the case. For example, a young person—let us call her B—was sent to the UK when she was 12 years old to stay with her uncle. Almost as soon as she had arrived, the uncle sexually abused her, which continued until she ran away from home when she was still a teenager. During this time she attended school and achieved good GCSE results. After running away, she reported her uncle to the police and he was arrested. He was convicted on several counts of rape and sentenced to five years.
B realised that she had no immigration status only when she tried to apply to university to study a course in social work. She approached several lawyers for advice and some offered to take on her case but she could not afford the thousands of pounds in fees. Eventually, she found a legal aid representative who helped her to prepare an application for leave to remain on the basis of Article 8—the right to a private and family life. The UK Border Agency granted her discretionary leave to remain.
The young woman now works for a charity and mentors young people in difficulty. A representative described her as a very determined and inspirational young woman who has applied to do an access course that will enable her to go to university next year where she intends to study to become a social worker. What a happy ending.
In another case, child G came to the UK with his mother when he was 12 years old. His mother abandoned him and, eventually, after a year, he came into contact with social services and, later, the Children’s Society. During that year he was homeless and forced into child labour. The Children’s Society referred him to a solicitor who found that he had no grounds for asylum and lodged a human rights application for leave to remain. Within a year, he was granted indefinite leave to remain. His solicitor believes that G’s exceptional circumstances mean that it is in his best interest to apply for naturalisation and has applied for legal aid funding to do this. Under the provisions he would not qualify for legal aid.
These stories illustrate the risk of harm to which separated or unaccompanied migrant children are all too often exposed. Although asylum cases will be covered, other immigration matters involving children seeking protection will not. Legal aid cuts are likely to affect 2,500 children in the same situation as B. They will no longer have legal aid to resolve their immigration issues to remain in the UK or to prevent them from being forcibly removed. These cases are likely to involve victims of trafficking, abuse and exploitation. Many may be made further vulnerable to exploitation.
Many children come to the UK at a young age—often due to the illness or death of a parent—and spend their formative years here. Many do not realise until they are older that they have an uncertain immigration status and that vital protection is provided under human rights law. That can ensure that these vulnerable young people are not forced to leave their home in the UK to return to a country that they do not know and where they may have no family or support network left. However, there is more. There will be knock-on costs if children cannot sort out their legal problems fairly. Society and the taxpayer will suffer unpredictable costs that could have been avoided.
A 2011 study by Youth Access, The Outcomes and Impact Of Youth Advice—the Evidence, found evidence of higher costs for the NHS, the criminal justice system, the welfare system and local authorities. The Local Government Association is particularly concerned about additional costs related to care leavers and former unaccompanied minors. The Department for Communities and Local Government has announced that any higher costs to local authorities arising from cuts to legal aid will be charged back to the Ministry of Justice. That was taken from a Written Answer made by the noble Baroness, Lady Hanham, on 1 November 2011. I hope that my noble friend Lady Eaton, when she speaks, will give more details on the costs to the country. Surely it is good governance and common sense to put legal aid in place in order to prevent unnecessary spending, because the financial cost and damaging social consequences for children will far outweigh any short-term savings.
The increase in the number of litigants in person will put pressure on an already overstretched court system. The removal of legal aid from many family cases will have the effect of removing access to justice for many people. The exception in the proposals—
I would like to ask my noble friend the Minister the following questions. Why is legal aid being withdrawn for advice in cases covering 6,000 children a year who would qualify under the current rules? Will he explain why legal aid is being kept for 35,000 children a year but is being withdrawn from the equivalent of 6,000 children a year? And how, when and where will professional legal provision, not just advice from social workers or the use of community legal advice helplines, be made to ensure that vulnerable children and young people are not left to suffer even more, though no fault of their own? If my noble friend does not have the answers to my questions now, will he have them before Third Reading? Can he give me an assurance that we will have a meeting to discuss what the Government have in mind to replace the protection that will be given to these children? Also, will he undertake a series of meetings to keep myself and those interested informed? Will he agree to make sure that this is a live issue that is retuned to at Third Reading? Finally, will he give us a timeframe and report back to us on when all this will happen?
We cannot abandon children who are in need. It cannot be morally right for us to neglect any child who cries out to us in need. I urge my noble friend to consider the content of these amendments and to respond favourably.
My Lords, I am not sure why we are discussing all these amendments in the same group as they seem to deal with rather different issues. I should like to take the House back to Amendments 11 and 12 which were introduced at the beginning of the debate. I am sorry that I was not able to take part in the Committee stage of the Bill, but I want to give my support to Amendments 11 and 12, which deal with the removal of welfare benefit cases from the scope of legal aid. Amendment 11 deals with advice and assistance for reviews and appeals to the First-tier Tribunal and Amendment 12 deals with advice and assistance at Second-tier Tribunals in the Court of Appeal and the Supreme Court, plus representation. I will do so briefly as we have already heard from a heavyweight team of speakers who between them have deployed all the main arguments in favour of the amendments with as much passion, power and eloquence as one could expect. However, there are one or two additional points that I should like to make.
The proposal to remove legal aid for welfare benefit cases represents a triple whammy for disabled people. I do not wish to be unduly disabled-centric about this. The proposal to withdraw legal aid for challenges to welfare benefit decisions affects benefit claimants and recipients generally, but as the noble Lord, Lord Newton, mentioned when quoting from the letter of my noble friend Lord Pannick, some 81 per cent of all benefit cases heard in the First-tier Tribunal are for benefits related to disability, so your Lordships can see why this matter is of such concern to disabled people.
This represents a triple whammy for the following reasons, and noble Lords will not be surprised to hear that there are three of them. First, disabled people are disproportionately out of work. The gap between disabled and non-disabled people’s employment rates has shrunk over the past 10 years or so, but disabled people are still some 60 per cent less likely to be in work than non-disabled people. Secondly, benefits for disabled people are set to be reduced, as the noble Lord, Lord Newton, told us, on a dramatic scale as a result of the Welfare Reform Act. Disability Rights UK puts the figure at at least £3.5 billion. The Joint Committee on Human Rights in its report, published last Thursday on the right of disabled people to independent living, in the context of the UN Convention on the Rights of Persons with Disabilities found that reforms to benefits and services risk leaving disabled people without the support that they need to live independently and that restrictions in local authority eligibility criteria for social care support, the replacement of DLA with personal independence payment, the closure of the independent living fund and changes to housing benefit risk interacting in a particularly harmful way for disabled people. So there is less work, much less benefit support and now no legal aid to challenge the mistakes that are bound to be made in such a colossal re-engineering of the benefits system. There is little wonder that it is described as a triple whammy.
People fear that the cumulative impact of these changes will force them out of their homes and local communities and into residential care. In the Government’s legal aid consultation paper, which prefigured this legislation, they stated that legal help for community care should be retained on the ground that,
“the issues at stake in these cases are very important because they can substantially affect the individual's ability to live an independent and fulfilled life”.
Surely, that rationale applies with equal force to disability benefits. The Joint Committee concluded that there is a risk of retrogression in respect of the UK’s obligations under Article 19 of the UN convention—the article on independent living—as a result of the cumulative impact of spending cuts and reforms. It argued that this risks breach of Article 19. If the Government do not look out, with these provisions on legal aid they also risk breaching Article 13 on access to justice, which requires that:
“States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others”.
Disabled people are twice as likely as non-disabled people to live in poverty. Welfare law is incredibly complex, as your Lordships know. Few of us could credibly claim to understand it. There is no hope of people on benefit, who would count as socially excluded by many measures, being able to cope with such cases without assistance. Someone came to brief us yesterday from Citizens Advice who illustrated just what those cases can involve by holding up a lever arch file stuffed full of case papers. That was only one of three files and by no means untypical.
The views of the Joint Committee on Human Rights and its international obligations should give the Government pause in going down this track of withdrawing legal aid from those in need of taking up welfare benefit cases.
I strongly support Amendments 21 and 46, which have been eloquently spoken to, particularly with regard to children in immigration cases. I would refer to the very moving briefing that I quoted in Committee from Refugee Youth. I shall focus my brief remarks now, however, on Amendments 11 and 12.
Based on the powerful speeches from other noble Lords, on my own experience over many years in the Child Poverty Action Group, and on the case made to us by a range of voluntary organisations, I can only concur with Citizens Advice when it says that the Government's approach will leave benefit claimants out to dry when they challenge decisions over correct entitlement. The consequences of wrong decisions, especially for disability benefit claimants, can be devastating.
The Minister said in Committee that his best point was that welfare benefits are being reformed to be simpler. Simplification has long been the holy grail of the social security system, and I hope that we get slightly closer to that holy grail this time. However, we cannot leave benefit claimants out to dry while we wait to find out whether we have succeeded. The noble Lord, Lord Newton, pulled the rug from under the Minister’s feet when he pointed out how important legal aid will be during the transition period.
I will not say everything that I planned to say but move straight to Amendment 12, and I ask for the Minister’s patience. In Committee, I asked him a question which he did not answer, so on the basis of better luck this time, I shall ask it again. I said:
“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”—
I remind noble Lords that the Minister told us that the savings would be £1 million, which in public spending terms is less than peanuts—
“can the Minister explain … why the Government are withdrawing legal aid from this small yet important category of cases, and can he please justify this to the Committee?”.—[Official Report, 16/1/12; col. 396.]
The Minister did not justify it to the Committee—I suspect because he cannot justify it. If he can, will he please try to do so today? Otherwise, I hope that noble Lords will support Amendment 12 as well as Amendment 11.
My Lords, I speak in support of Amendment 46. As noble Lords know, this amendment seeks to protect access to legal advice, and when necessary to legal representation at tribunals and in court for all children under the age of 18. It seeks to maintain the system as it is at present, working reasonably well at low cost and protecting the rights of the most vulnerable children in the land. I strongly support the Government’s determination to drive down the deficit and attack waste in public expenditure wherever it is found. However, I also strongly support policies that do not create mountains of red tape and do not push unbudgeted costs on to local authorities.
It is because we must do everything possible to reduce the deficit that I cannot support the proposals to remove legal aid from 6,000 children every year, as would happen if the Bill passed without amendment. That would cause enormous knock-on costs to the public purse that will far outweigh the £6 million to £7 million that the Ministry of Justice believes it can save from its legal aid budget. As a matter of principle and conscience, I cannot support a proposal that will see a child go into the courtroom alone to argue his or her case against a barrister paid for by the taxpayer. This is what will happen in hundreds of cases every year where children find that they must contest decisions about their lives taken by the Home Office, education authorities and social housing providers.
By removing legal aid for welfare benefits advice to children in their own names, the Ministry of Justice believes that it will save £260,000 a year. This is at a time when there has been a complete failure to collect £1.5 billion in fines to be paid by criminals.
There can be no doubt that if a child has suffered harm because of a decision made by a public authority, and if the child is unable to challenge that decision, there will be consequences and damage to that child’s life which the rest of society and the taxpayer will ultimately pay for. We will reap what we sow.
We should remember that the ministry’s own impact assessments, published in support of the Bill, admitted that it created a risk of “increased criminality” and increased costs to other government departments and local authorities. When the Justice Select Committee in the other place asked the ministry to quantify these unintended costs it received a reply that should give us all pause for thought. The ministry’s response to the consultation on the Bill says:
“The lack of a robust evidence base means that we are unable to draw conclusions as to whether wider economic and social costs are likely to result from the programme of reform or to estimate their size”,
and that it is,
“not possible to quantify accurately these wider costs”.
In other words, we are flying blind.
The Bill asks us to support spending reductions that even its authors cannot say will ever be achieved. The legal aid budget reductions have the extremely unusual distinction of making some of the most hardened supporters of spending cuts feel very uneasy. I put myself in that category. The noble Lord, Lord Tebbit, says he fears the cuts to legal aid for children in medical negligence cases go too far. The chief executive of the TaxPayers’ Alliance, Mr Matthew Elliot, says:
“Almost everyone who has looked at these particular cuts thinks that too many of them will end up costing taxpayers more than they save”.
We must listen to the people and organisations who are going to be left to pick up the pieces if children cannot get help with their legal problems.
I would like to tell noble Lords about some of the detail as it will affect local authorities and children in immigration cases. Last year there were 2,490 immigration cases involving children in their own right. These will mainly be children who are not living with their parents, sometimes after escaping difficult family circumstances, or having been victims of trafficking. On Report in the other place, the Justice Minister said:
“Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them, whose role would include helping the child to gain access to the same advice and support as a child who was permanently settled in the UK. They could also offer assistance with filling in forms and explaining terms, and give emotional support”.—[Official Report, Commons, 31/10/11; col. 689.]
So here we have a knock-on cost of the kind the ministry says that it cannot quantify accurately.
The Local Government Association, of which I am a vice-president, says:
“Transferring responsibility to councils in this manner, without consideration of the funding implications and at a time when they are already processing reductions in funding for children's services, will place resources under considerable pressure. This will have a particularly detrimental impact on the most vulnerable children who make up the largest portion of children placed in emergency or short-term care”.
The example which the Local Government Association gives of children who will be affected in this way are children who have been trafficked into the UK from other EU states, who cannot claim asylum. It is hard to think of a more desperate or vulnerable group of children. The Department for Communities and Local Government knows very well that there will be extra costs to local authority social services departments if legal aid is withdrawn from these children.
I would like to ask the Minister this evening to inform the House about the precise level of costs that will be borne by local authority social services departments, which they will then claim back from his department via the DCLG in a tangle of expensive, time-consuming and wholly avoidable red tape.
My question to the Minister and noble Lords on all sides is: how is it that we are keeping legal aid for about 35,000 cases every year involving children in their own right, but withdrawing it from 6,000 children with civil justice problems? They will all be very similar children—trusting, scared, brave and deserving of our protection. The Government have gone a long way towards maintaining civil legal aid for most children; they need move only a few steps further to protect legal aid for all of them.
My Lords, I speak as the father of a daughter with Down’s syndrome, who over the years has had to face complex welfare benefit issues. My own experience has taught me that it is not only the severely disabled for whom welfare support is complex—it can be even more so for those who suffer from a range of disabilities, each of which may in itself be classed as mild. There have been times when my daughter has been let down by the system and then, being extremely vulnerable, she has needed those able to act as advocates on her behalf.
My daughter, though, is one of the fortunate ones. She comes from a supportive family, has reasonably articulate parents and a mother who has used both her personal and professional expertise to support advocacy networks and provide advocacy support for others. What of those who do not have such resources available to them? Many of them depend for legal and procedural advice on not-for-profit agencies such as Citizens Advice. Such organisations provide essential help to ensure that disabled people have access to the benefits and support to which they are entitled, but these agencies also need support in the vital work that they do.
What Amendments 11 and 12 seek to achieve is important in providing the safety net that will enable such access and support to continue. If either were to be accepted, it would offer provisions much narrower in scope than those in existing legislation but would ensure that the resources were there for those who face both disability and, additionally, the kind of complex welfare benefits issues that arise from their disability, in order to be able to challenge decisions that adversely affected them through review, supersession or appeal.
As the noble Baroness, Lady Doocey, has pointed out, we are at a time of unprecedented upheaval in the welfare system; I see that day to day for myself. I do not criticise that; in fact I am in favour of much of that change and I understand it. Amid such wholesale change, though, with its attendant impact on the lives of some of the most vulnerable in our society, safeguarding the minimal access to legal aid in these circumstances is more important and necessary, rather than less.
I turn to Amendments 21 and 46, both of which I support. I do not add much to the weight of words that we have already heard in support of them, but I want to return to the Minister’s assurance, which has already been quoted, that as far as possible the intention of the Government is that where children are involved, legal aid will still be provided. We have also heard that on the basis of the Legal Services Commission’s data for 2009-10, around 6,000 children under 18 will no longer receive legal aid, including cases regarding immigration, welfare and education.
In that context, I return to the assurance offered by the Government that, for cases that would be excluded from the scope of legal aid, there would be a safety net in the form of the exceptional funding scheme. However, that in itself raises a number of questions. How adequately will “exceptional” be defined? Will it be driven by need or by available funding? Will there be rights of appeal? What will its real impact be?
We have heard how the Children’s Society estimates that just over 4,000 cases for under-18s will be excluded from scope and not receive exceptional funding, yet, according to the Government’s own estimates, ensuring that all children under 18 had access to legal help and, crucially, representation would cost just £10 million—a relatively small cost for a very great gain. However, if legal aid is not to be available in these circumstances, where exactly are alternative sources of funding to come from?
I am very grateful that several people have made reference in this debate to the tremendous work undertaken by the Children’s Society and the evidence that it has put forward in support of Amendments 21 and 46. For 120 years, the Children’s Society has been deeply concerned to make childhood better for all children through direct action to prevent their feeling excluded, isolated or abandoned. Rather, its aim is a world and society in which all children and young people are respected, valued and heard. If you are a child with a physical or mental disability, a child who has been involved in trafficking, or a child who has been abused or neglected by carers, your experience of childhood is not one of being respected, valued and heard. However, as such a child, you might rightly expect that the law of the land in which you find yourself will ensure that such respect, valuing and listening will be available to you in any legal process, particularly since many of the scenarios to which these amendments refer can be complex and intimidating, even to those for whom resource, support and advice are readily to hand.
My Lords, in Committee many speeches stressed the importance of securing accessibility to our justice system for everyone. However, the Bill, as it still stands, would effectively abandon many vulnerable individuals to go it alone without the support that is surely the hallmark of a decent society.
I support Amendment 21, outlined by the noble Baroness, Lady Howe, which would bring civil legal services for vulnerable young people back within the scope of legal aid. These vulnerable young people would include those younger than 25 years of age who are disabled, those who were formerly in care and those who are victims of trafficking. It would retain support for those who have suffered neglect or trauma and for the most disadvantaged. The amendment would also bring private family proceedings back within the scope of legal aid, as well as proceedings relating to Section 140 of Learning and Skills Act, which concerns assessments of learning difficulties—something of importance to me as patron of Mencap Wales.
I also support Amendment 11, moved by the noble Baroness, Lady Doocey, which would retain legal aid for social welfare cases. I thank the noble Baroness for her perseverance in this matter. I hope she will get the support that she deserves. Organisations such as Scope have drawn attention to the fact that the proposed cuts to legal aid will have a disproportionately negative impact on disabled people, since they will find it most difficult to challenge the decisions that affect them. It is frankly perverse to expect individuals with an impairment or disability to be litigants in person or to navigate courts and tribunals without much needed support and expert assistance. These are the people whom the system should pull out all the stops to support. Apart from increasing the timescale of cases and putting further pressure on the already overloaded justice system—there will inevitably be an increase in litigants in person—the reforms will disadvantage those who are already in need of extra care and support. Amendment 11 would retain legal aid for people with the most complex welfare and benefit issues, such as in cases where individuals challenge government decisions via appeals or reviews.
May I suggest that it is, to say the least, a highly unfortunate coincidence that legal aid should be withdrawn from welfare and benefit cases at the very time when the Government are overhauling the benefit system to introduce universal credit? Denying disabled people the expert advice necessary to help them in challenging inaccurate decisions, which might be made when they are reassessed, is particularly unacceptable. According to the Government’s impact assessment, the proposals to remove legal aid from welfare and benefit cases will affect roughly 78,000 disabled people. As the noble Lord, Lord Newton, mentioned a moment ago, current DWP guidance for this area covers 8,690 pages. It is simply unpalatable for people with disabilities to be left to steer their own way in such an intimidating and overwhelming area. I strongly urge the Minister to have regard to the issues that have been discussed today, and to respond positively to the amendments.
My Lords, one word has been left out of our discussions—“veteran”. I refer to veterans of all ages. I respectfully remind the Minister that there are still disabled veterans from World War 2 and from right the way through until today’s campaigns and those that will come. The military covenant lays down that a veteran—man or woman—must be cared for. The right honourable gentleman the Secretary of State for Defence has to make a public report nationally at given times. I see nowhere that legal aid or legal advice is automatically offered or given to a disabled veteran in need. Has the noble Lord’s department discussed with the Ministry of Defence how they will handle this and make legal aid and legal advice available to veterans, as required by the military covenant? Is the noble Lord hearing me?
My Lords, I speak to Amendment 101. As we have heard, this group of amendments relates to two matters: first, ensuring equal access to justice for those who are vulnerable or on low incomes; and, secondly, dealing with the impact of the very fundamental changes made by the Welfare Reform Bill, which will inevitably increase substantially the number of people who need help and who are unable to represent themselves.
Quite separately from these two issues, the cuts already made to CAB budgets and to third-sector advice bodies as a whole have been very high and have caused significant dislocation to their services. The consequence of all this is that, as things stand, there will not be equal access to justice, and yet, for a comparatively small sum in the context of the legal aid bill as a whole, many of the problems could be dealt with. It does not help, of course, that relevant funding streams lie across several Whitehall departments, so I still hope that cross-Whitehall discussions might enable solutions to be found to the serious loss of resource faced by the sector, amounting to three-quarters of the legal aid funding currently received, all of which impacts on the estimated 650,000 people who currently secure early and preventive help.
I spoke on this issue in Committee. The danger is that the exclusion of benefits work from legal aid will tie the hands of advisers who are trying to prevent homelessness, for example, for which legal aid may apply, leading to many more unresolved cases filling the courts. The courts will then have more adjourned hearings and will ultimately have to make more possession orders because there is no one to resolve the benefits issue. This will result in higher costs to the taxpayer. The Bill proposes that all benefits work is to be removed from the scope of legal aid except for cases that go to judicial review, yet early intervention to resolve benefits issues often prevents these situations escalating into more serious proceedings, with all the costs involved in that.
Amendment 11, moved by my noble friend Lady Doocey, seeks to retain legal aid help for those facing welfare benefits reviews and appeals at the First-tier Tribunal. It is a relatively low-cost amendment that would address the problem whereby the removal of social welfare advice from the scope of legal aid will have a disproportionate impact on vulnerable people, particularly disabled people.
My Amendment 101 also relates to funding advice and representation, and seeks a solution by giving a power to the Lord Chancellor to add new civil legal services to the scope of the Bill and to make funding available on a permanent basis through the provision of grant in aid, where doing so would reduce knock-on costs or secure equal access to justice.
My primary concern relates to ensuring that there is long-term funding for CABs, law centres and third-sector housing advice centres to help vulnerable clients. Earlier this week, the Chief Secretary to the Treasury said that there would be additional funding in the current spending period and that details would be announced in the Budget. It is essential that advice services are made sustainable in the long term, and I am grateful to the Minister for understanding the financial problems that face the sector and for being willing to seek solutions to the funding issue. We await the outcome, but it should come before we return to the Bill at Third Reading. For those of us who have supported the work of the advice sector and CABs in particular, I hope the Minister will be able in his reply to set our minds at rest regarding securing the necessary resources to finance the sector adequately and maintaining the principle of equal access to justice.
My Lords, I rise briefly in support of Amendment 11 because I covered the appeal process extensively during our debates on the Welfare Reform Bill. I completely agree with the noble Baroness, Lady Doocey, who is absolutely right to say that the current proposals will represent the most major and life-changing reform to the welfare system. Her amendment offers some protection to ensure that the right people are supported. Both inside and outside your Lordships’ Chamber, we hear an awful lot about how we want to help and support disabled people. If we want to do so, this is our chance to prove it. I strongly support the amendment.
My Lords, I raised in Committee the issue of the advice sector and advice agencies, about which the noble Lord, Lord Shipley, has spoken. If one takes stock of where we have got to in this debate, in which there have been many speakers, one sees that everyone from every Bench has said that the Bill will not do and does not provide necessary support in the welfare area. I do not for a moment want to repeat the powerful speeches of the noble Baroness, Lady Doocey, the noble Lord, Lord Newton, or others. The question is not, “Does the Bill need to be amended to deal with welfare benefit in some way?”; the question is, “How should it be amended?”.
I therefore want to speak to Amendment 101, which was seductively spoken to by the noble Lord, Lord Shipley, and the exceptional funds that we have been told about and, no doubt, will be told about. The fact in relation to the advice agencies—and I have explained my connection with them—is, as the Minister helpfully told me in a letter that is now in the Library, that the funding given to the not-for-profit sector will be cut by 77 per cent. That represents more than twice—nearly three times—the £20 million that the noble Lord talked about as an addition. The Advice Services Alliance estimates that 800 specialist advisers will be lost from the advice sector as a result. As many noble Lords have said—and from my experience as a lawyer it is true—it is important to bear in mind that the welfare benefit side requires an expertise that most lawyers do not have. It is also another reason why the argument sometimes put forward for the Bill—that it will reduce the fat cats—is completely lost. No cat gets fat on welfare law.
The questions are on whether the vague and hedged promises of some money are sufficient, and whether the amendment of the noble Lord, Lord Shipley, is enough. For three reasons, I respectfully say that it is not. First, it is rather confusing. It divides into two parts. Proposed new subsection (1) mentions the Lord Chancellor having a power, as the noble Lord said. He may make funding available. That is a discretion. As we discussed in Committee, you cannot enforce a discretion; what the Lord Chancellor—or, as I rather mischievously suggested, the Chancellor of the Exchequer—decides to do determines what happens under that subsection. We have a new subsection proposed which states:
“The Lord Chancellor must make permanent arrangements for such purposes”,
and then specifies certain things. There are two problems with that. First, it appears to conflict with the first subsection, which identifies a discretion. Indeed, if you have to identify the hierarchy of the subsections, the first appears to be the most important, because proposed new subsection (2) says that the Lord Chancellor must make permanent arrangements “for such purposes”. “Such purposes” is a reference back to proposed new subsection (1), which is discretionary. So my first concern is that that does not impose a duty on anybody.
My second concern is that it is entirely unclear what is the ambit of that duty. Nowhere else in this field do we not specify by some objective criteria and assessment what is needed to meet that requirement. The amendment does not do that at all. It mentions funding bodies and law centres, but does not specify by how much, who is to decide and how it is to be distributed, nor impose any obligation on the Lord Chancellor—let alone the Chancellor of the Exchequer—to make sure that the funding provided is sufficient to meet an identified need. I would be happy to see an identification of that need. That is the way we legislate in this House and in this country: we identify a need; we impose a duty on a Minister to meet that need. We do not leave it entirely to discretion either whether there is a duty at all, as the amendment would, or what is the extent of that duty.
Much though I commend the spirit behind the amendment, for the reasons I have given the House should not be seduced into thinking that it is a safe way to deal with the hardship, injustice and unfairness that so many noble Lords have said that the Bill will otherwise produce.
My Lords, I invite the House's attention to Amendment 45, which is rather oddly placed in this group and which, I suggest, stands separate. It relates to family proceedings in which, I remind the House, the welfare of children is paramount under Section 1 of the Children Act. I have identified a very limited and specific issue, where the child has suffered or is at risk of suffering significant harm. The purpose of the phrase “significant harm” is that it relates to that part of legislation covering children which deals with care proceedings. There are circumstances where the serious risk to a child does not emerge with the social worker but in private law proceedings.
Under the Bill, all private law cases, other than domestic violence, are expected to go before a mediator to try to settle a very large number of them, as I sincerely hope will happen, but not all cases are susceptible of mediation. Among those not susceptible of mediation are cases where the mediator finds there is a serious risk to the child. That may be because issues have arisen more than 12 months ago, so that legal aid will not be available. Trained mediators may pick up a situation where one of the parents has a major personality problem or suffers from mental health issues. Unless there is a decision by a court, there will almost certainly not be legal aid. The amendment asks that the mediator can alert the appropriate authorities to grant legal aid where the child is at significant risk. Otherwise, there may be no opportunity for legal aid to be granted. The two parents will battle their way, floundering in the Family Court, while the child remains at significant risk until a judge or magistrates are able to pick up the case at a very much later stage. I must warn your Lordships that the courts will be utterly clogged by litigants in person. It will probably be many months before this sort of case is heard by a judge or magistrates as a private law case. It will not have been picked up by social workers at all, and the child will remain at risk.
I have had discussions with the Lord Chancellor about this matter and I know that his people have been looking at it. They do not see it as a serious a risk as I am afraid I do, and I very much hope that in due time your Lordships will support the amendment.
My Lords, I shall not detain your Lordships for long. I do not suppose that a single Member of this House would dissent from the proposition that the hallmark and guarantor of a free society is the rule of law. The theme that has run through this debate in many powerful and some exceptionally moving speeches has been simply that you cannot have the rule of law if access to the law is denied to some of the weakest in our society. That is the theme of this debate and it has come out time and time again. I was deeply moved by the very brave—I use that word deliberately—speech of my noble friend Lord Newton, but others have emphasised the point and added further to it.
If, when the Minister replies, he cannot give us a totally satisfactory answer, I very much hope that he will at least say that he will return to this matter at Third Reading, having had conversations with some of those who have made such valid and pertinent points. I do not include myself among them; I do not begin to compare in expertise with the noble and learned Baroness, Lady Butler-Sloss, or others. I hope that when it comes to Third Reading we shall have a measure that shows that the weakest have not been neglected or denied that access to the law which is their right as much as it is ours.
My Lords, further to that very important point just made by the noble Lord, Lord Cormack, perhaps I may make one observation on which I hope the Minister will be able to give a convincing reply when he responds to this debate. Government have frequently been caught up in discussions about the legal implications of the UN Convention on the Rights of the Child. Invariably Ministers have, without any equivocation, said that central to the Government’s position is the principle that the rights of the child must come first. Can the Minister please explain to the House how the provisions of this proposed legislation further that objective?
My Lords, like my noble friend Lord Slim, I have one question to ask the Minister. I know that we discussed impact assessments in our debate on Amendment 6, which was moved and withdrawn by the noble Lord, Lord Bach, but when the Minister responds can he confirm or deny whether those responsible for drafting the Bill and drawing up its impact assessment discussed the impact of this clause with those who were responsible for drawing up the impact assessments on the Welfare Reform Bill and the Health and Social Care Bill?
My Lords, perhaps I may add a word to what the noble Lord, Lord Cormack, said. It seemed to me that he put his finger absolutely on the point. We are faced with a decision on whether the rule of law is being complied with in the proceedings on this amendment. It seems to me—and I have heard it from every speaker—that it is an indefensible provision. It is bound to have a terrible effect on a small group of disadvantaged people. They are required to build a case in this difficult area of welfare and social security law. Anyone who has had any personal experience of advising a litigant who is unaided and comes in saying, “Could you please advise me about this problem?”, does not need to look at the problem for more than five minutes before realising the difficulty in finding out what the law is. You have to find out the current state of the statute or the statutory instrument on which you seek to rely, which is quite a difficult area in itself with the rate of amendments that take place. Then there is the current state of case law or the latest court ruling in the relevant area, which could be almost inaccessible nowadays to ordinary people who have to have a lawyer. I am convinced by what I have heard that to segregate a group and say, “Legal aid and advice of any sort will not come to you from any public fund”, is something to which this House ought not, for one moment, lend its support.
My Lords, I speak in support of the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss, as regards delegating to the mediator whether a person should be eligible for legal aid. I speak from my interest as a practising lawyer in this area. By delegating to the mediator, the lawyer cannot possibly be encouraged to take on work which would otherwise not be fit for purpose and it will simply be too late unless someone responsible can take the case on and protect the child in question.
My Lords, there is very little to add in what has been a remarkably unanimous debate—“Sit down”, says one voice. It is extraordinary that not a single dissentient voice has been heard in an hour and 48 minutes. I hope that the Minister, who has the unenviable task of summing up this group of amendments, will take on board the passion with which the House has spoken. Nearly everyone has been saying, in one way or another, that for us as a Parliament to legislate benefits for the most needy, the poorest, the least articulate and the most vulnerable and then to deny them the means of accessing those rights is not right. That will undermine a society which is already in tension. We live in difficult times. I put it to my noble friend, who I know would agree with what I have said, and to the Lord Chancellor, that for a Government to cut the lifeline—for that is what it is—of millions of our fellow citizens in getting the modest help that the state has provided for them must be the most bizarre form of saving.
Perhaps I can add a word about the advice centres. Not enough has been said today about the 60-odd law centres and the 100-odd independent legal advice centres. Together with the 200 CABs that have a specialist adviser, they deliver value for money which I suspect you could not find in virtually any other part of our nation state. That is because not only do they do that work for rates of pay that those of us in the private profession would spurn, but they are backed by an army of volunteers. The CAB movement has hundreds of thousands of people who turn out to give generalist advice which, frankly, does not achieve its purpose without the specialist trained advisers at their backs, who currently are getting contracts from the legal aid scheme. I realise the problem for the Government in trying to match the need for cuts with what society needs and I realise that my noble friend has already conceded the amendment which we put forward to allow the Lord Chancellor to bring back into scope legal aid areas that will be cut out by this Bill, but the profoundest issue here is the nature of the society to which we want to belong. Is it still to be a welfare state, or is it not? Is it right that a couple of years ago two bankers whom I can think of earned more than the entire sum that is being spent on legal aid for all the law centres and CABs? Is that the society that we want to be part of? No, say I; and no, I suspect, say all of us.
As a signatory to Amendment 101, I hope that, with all the difficulties, my noble friend will make some solid commitments that enable those advice centres to continue doing their phenomenal job—the CABs alone deal with more than 100,000 tribunal cases—because, frankly, if they cannot, I fear for the consequences.
I rise to give my support, and that of my party, to Amendment 11, moved so brilliantly by the noble Baroness, Lady Doocey, now some time ago. My Amendment 88 is consequential on that amendment and deals with the other side of the coin. For me, Amendment 11 is the most important amendment in the entire Bill, and I shall try to explain shortly why I believe that. I want to speak also to my own Amendment 12, which is not an alternative in any sense to Amendment 11, but refers to the appeals process as opposed to the earlier process. Perhaps I may also briefly say how much we support the other amendments that have been spoken to in this debate, namely Amendments 21, 45 and 46.
We pride ourselves that our legal system is among the best in the world. We encourage rich foreign litigants to try their legal disputes in English courts and say that our system is fair, is not corrupt and has a very high class of judges and advocates. All that is true, but what underpins and guarantees our system is that there is access to justice for everyone. The law is there to help everyone, including the poor, the disabled and the marginalised, and we have a system of helping the poor that is both practical and principled—it is not perfect, but it works. If that system is decimated, as I fear the Bill as it is presently constituted will do, then as many as 650,000 people who have access to justice now will no longer have it. That fact alone should make us pause for thought. It is as serious, stark and uncomfortable, I am afraid, as that.
We all know that citizens with legal problems in the complex fields of welfare benefits, debt, employment and housing—which often involve the organs of the state, as the noble Lord, Lord Carlile, emphasised—can at present obtain expert legal advice, and “advice” is the key word here, so that those problems can be resolved. Legal advice of this kind helps people keep away from the courts and the tribunals; it does not urge them towards the courts. One of the myths that I am afraid has been rather put about by the Government in this Bill is that doing away with legal aid for social welfare law will reduce the number of cases going to the courts. However, the exact opposite is true. It is the availability of early advice that keeps the numbers down for our tribunals and courts. The people who use these services are not those whom the Daily Mail might choose to call scroungers or the work-shy; these are ordinary people who lead good lives and come up against the complexity of the modern state. They may have served in the Armed Forces; they may have been in all sorts of professions; they may not have led particularly successful professional lives. However, they are our fellow citizens, and if a system of law is to have any justice at all, it must look after them as much as it looks after us. The noble Lord, Lord Cormack, made this point a few minutes ago.
This is not an expensive type of law. My noble and learned friend Lord Goldsmith made it clear that no cat gets fat on welfare legal aid. Also, it works. If early advice is not available, we all know what the other side of the coin will be; things will get worse; a welfare problem will become a debt problem, then a housing problem; people will become homeless and unemployed; families will break down; and some people will fall into criminality. This should be a no-brainer. The changes will cost so much more than they will save. We have all seen studies that tell us that. Alas, the Government have not seen fit to contradict the statistics. They will not give us any figures—and I doubt that they could—to counter those arguments.
The consequences will not just be that many clients will not get access to justice; there will be a knock-on effect of making it impossible for CABs and law centres to continue to function in the way that they do now. They depend on legal aid money to attract other funds to do other work. If the legal aid money dries up, so may other sources—and then we will be deprived of them in our country.
Amendment 101—rather aptly named, if I may say so—is a brave attempt, but only an attempt, to try to move us away from what we as a House must come to grips with today. We must quite legitimately put pressure on the Government and say to them: “Look, you should not be withdrawing legal aid in this field. Just think again about this”. This is the attitude taken by Citizens Advice, for which the House has a huge feeling of respect. In its briefing, it states clearly:
“We therefore strongly support Baroness Doocey’s amendment that legal aid for casework advice on review and appeals should be retained within scope”.
It could not be clearer.
I will say a brief word about Amendment 12 because I will not have another opportunity to speak to it. It follows Amendment 11 and concerns appeals. The matter should be one of common sense. Very few of these cases—involving very little taxpayers’ money—get to the upper-tier tribunal, where at the moment there is no representation, only advice and assistance. Although I think that there should be representation, I am not asking for it in Amendment 12 because I do not want to add to existing costs. However, of course representation in the Court of Appeal and the Supreme Court should be granted through legal aid because it is quite ridiculous to suggest that claimants should get to that stage, in matters that are about law only, and have to argue their case. It would be impossible and would not help the court in any way. It is common sense that we should ask the Government to say that those matters should be legally aided. That is what Amendment 12 is about. It is quite separate from Amendment 11, which is about advice at a much earlier stage.
I have a quotation from the noble Lord, Lord Phillips of Sudbury. On the matter that Clause 12 deals with, he said:
“Seriously, however, it is not reasonable to demand a citizen even to decide whether he or she has a point of law which can be taken before a tribunal. It is simply unrealistic. One could almost say it is cruel to pretend that we are creating rights for those citizens most in need when they cannot even get advice and representation on points of law at appeals”.—[Official Report, 20/12/11; col. 1725.]
Precisely; that is exactly the point, and I hope that the House will support Amendment 12.
I return briefly to Amendment 11. The proposal to take legal aid out of scope is wrong in three ways. First, it is wrong because it picks on those least able to defend themselves, and not on others whose opposition would be much more powerful. Secondly, it verges on the unconstitutional because it directly attacks access to justice for a large number of people. Finally, and this is one of the crucial points, the cost of not providing advice will be outweighed by the cost down the line. That point has been made by many noble Lords on all sides. We have heard that the House has a tradition of protecting the interests of the poor and the powerless in our society. If we decline to do so on this occasion, we will be diminishing our legal system and making our country a less civilised place. I very much hope that the House will support the noble Baroness, Lady Doocey.
My Lords, if we have a debate about how we help the poor then it is bound to be emotive and emotional. We have had such a debate, and it has been emotive and emotional. If we have a debate about the rule of law, and we had such a debate on Monday, then it will certainly be high minded—although even on Monday I thought that the line was blurred between access to justice as a basic right. a right with a long history in our country, and access to justice funded by the taxpayer, where there have always been limitations and where lines have always had to be drawn. By all means we can have the broad-based debate, and I understand the motives and emotion behind a lot of what we have heard.
The noble Lord, Lord Bach, said that this is the most important amendment in the Bill and he is right. I make no complaint—it is nothing to do with me anyway—but those who grouped these amendments together did so very sensibly, because these amendments, separately and collectively, tear out the heart of the rationale of the Bill. Be under no dubiety about it—that is what this collection of amendments does.
Let me, in making my case, go back to the beginning, as it were. One of the few advantages of being around a long time is that you remember things. I was a junior official in the Labour Party in 1976 when the then Labour Government had to devalue the pound. A great deal of pain and anguish followed as various departments had to undertake cuts. I was actually in Downing Street—in the Cabinet Room, with the Prime Minister and the Chancellor of the Exchequer—when the pound went from $1.95 to $1.47 in a single afternoon, and we sent for the Governor of the Bank of England and then for the IMF. Painful cuts followed. I can see sitting round this Chamber people who had ministerial responsibility or senior Civil Service responsibility. They know that even the most high-minded and principled Government sometimes have to face difficult decisions and make difficult choices and cannot simply rely on the emotion of the moment.
When we came into office we inherited an economy that was out of balance and faced a historically large public deficit. In more prosaic language, that meant that we were all a lot poorer than we thought we were. As a result, across government, we have had to take some very tough decisions on public expenditure. As I have said before, my department had to make cuts of £2 billion out of a total budget of £10 billion. It is easy to say—I have heard it today—that £1 million, £10 million or even £16 million is not so much. Of course, the House has got used to dealing in the rather larger sums of the Welfare Reform Bill. But for a smallish department with a small budget, and with a very restricted number of areas where cuts can be made, that involves taking tough decisions.
The noble Lord, Lord Bach, has indicated that he is going to divide the House. I hope that those who are going to go into the Lobby—many of whom have had to take responsibility for budgets, for making cuts and drawing lines—will not do so simply in the cavalier view that this will send a message to the Government.
And I have heard a lot. The House has to move on. We want to get through Schedule 1.
This is not a debate about who cares most; it is about whether this House is willing to take the tough decisions that our economic situation requires, or whether it is simply going to push the problem down the corridor for the other place to take those decisions. That is it, because the other place will have to take those decisions whether we do so or not.
I believe that these amendments dismantle the central architecture of the Bill and our reform programme. As a result, as I have said many times, it will come as no surprise to the House that we have had to make these difficult choices about legal aid, as we have done with every aspect of MoJ expenditure. I know that we are debating issues about which noble Lords care deeply; I do not think there is any monopoly on that. There will be noble Lords who will follow me into the Lobby tonight who have just the same—if I may use the words of the noble Lord, Lord Carlile—“determinations of principle and conscience” as those who will not.
I remind noble Lords that the reform programme is specifically aimed at protecting the most vulnerable. The noble Lord, Lord Bach, talked about the social welfare programme being “decimated”. We will still be spending an estimated £120 million a year on funding for private family law; £50 million on categories of social welfare law; an extra £10 million a year on mediation; £6 million on clinical negligence; and £2 million on education.
We are keeping legal aid for child parties in family proceedings. We have retained legal aid for child protection cases, civil cases concerning the abuse of a child, and for cases concerning special educational needs assistance. We are keeping legal aid for people with mental health problems or who lack capacity for cases that determine their vital interests, and for advocacy in front of mental health tribunals. Legal aid will be retained for judicial review of welfare benefit decisions, and for claims about welfare benefits relating to contraventions of the Equality Act 2010. We will agree to extend funding to victims of human trafficking and domestic child abduction—something I know that the noble and learned Baroness, Lady Butler-Sloss, is interested in.
Our reforms have been deliberately designed with these cases in mind. Crucially, as I said in the House on Monday, we will amend the Bill to enable the Lord Chancellor to bring areas of law back into the scope of legal aid. When the noble Lord, Lord Phillips, rose, everyone groaned that there was nothing more that could be said. But I congratulate him on being the first to mention what was a very significant concession by the Government, in that what was a ratchet in the Bill is now a regulator. If some of the doom and gloom is proved to be true, the scope is there to respond to those facts.
While we are clear that our reforms are the right ones, we believe that this is an important amendment. As has also been said, the Treasury has announced that additional funding in this spending period will be available for the not-for-profit sector. As noble Lords know, we believe that in many social welfare cases it is not legal advice that people want; it is simply advice. We will support the advice sector to do just that. While we appreciate that many people rely on welfare benefits, these decisions are made in a tribunal, which is a court especially designed to ensure that claimants do not require legal representation. They are also primarily about financial entitlement and do not raise such fundamental issues as cases concerning liberty or safety.
As I have mentioned, the Government are committed to ensuring that not-for-profit advice, as well as other forms of welfare benefit advice, remains to ensure that claimants are clear about what they are entitled to claim and how they can seek redress. However, as those colleagues who have sat in another place and have advised constituents in these areas can testify, legal advice is not required in all these cases. That said, legal aid will be retained for the judicial review of welfare benefit decisions and for claims about welfare benefits relating to a contravention of the Equality Act 2010.
Amendments 21 and 46 concern legal aid for children and vulnerable young people but, as I have already said, it is simply not true to suggest that there will be no funding for cases involving children and young people. These amendments seek to bring into scope certain civil legal services for any person aged 24 or under who has a disability, is a former care leaver or a victim of trafficking, or has other vulnerabilities as prescribed in regulation. I should at this point tell the House that the Government intend to table an amendment at Third Reading on legal aid for victims of trafficking and claims for compensation.
The Bill also has important safeguards for children and adults who lack capacity or require treatment for mental health issues. Paragraph 5 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual: that is, medical treatment including psychological treatment, life, liberty, physical safety, the capacity to marry or enter into a civil partnership, the capacity to enter into sexual relations or the right to family life.
Paragraph 5 of Part 1 of Schedule 1 provides that legal aid may be made available for cases arising under the Mental Health Act 1983 and the Mental Capacity Act 2005, including cases concerning the medical treatment of patients or those who lack capacity. Paragraphs 9 and 15 of Part 3 of Schedule 1 provide for legal aid for advocacy for mental health cases before the mental health tribunal. Paragraphs 1 and 2 of Part 3 of Schedule 1 provide legal aid for advocacy for any onward appeals to the Court of Appeal or Supreme Court on a mental health or capacity issue that is within scope. The exceptional funding scheme will ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights as well as rights to legal aid that are directly enforceable under European Union law.
On Amendment 46, about children, we are already keeping legal aid for child parties in family proceedings. Therefore, part of this amendment is superfluous. The rest of the amendment seeks to keep funding across the board for children in all civil disputes without regard to their relative priority or alternative methods of resolving them. I have already mentioned that the Government recognise the importance of funding in a range of cases where children’s interests are key. That is evidenced in how we have proposed to allocate legal aid funding by protecting funding in those areas that specifically involve children.
I am very willing to meet my noble friends and others who have asked to meet me between now and Third Reading, but I cannot make promises or give guarantees. We have retained legal aid for child protection cases and civil cases concerning the abuse of a child, as well as for cases concerning special educational needs assistance. We have also made special provision so that legal aid is available for children who are made parties to private family proceedings. In civil cases, claims brought in the name of a child are usually conducted by their parents acting as the child’s “litigation friend” rather than the child themselves. This is a normal part of the rules on civil litigation; the civil justice system as a whole does not generally require children to act on their own behalf.
We have also made it clear that one of the key criteria for the exceptional funding scheme is the ability to represent yourself. This will obviously be relevant where a child is bringing an action without a litigation friend. We must also ensure that we do not create a loophole in the system through which lawyers might encourage parents to attempt to bring civil litigation in their children’s name purely to secure funding that is otherwise outside the scope of this area of the law.
Amendment 45 seeks to make legal aid available for private family law cases where, in the course of mediation, the mediator has identified issues pointing to potential child abuse, a point addressed by the noble and learned Baroness, Lady Butler-Sloss. Legal aid will remain available on a means and merits free basis for public family law proceedings where a local authority seeks to take a child into care, at a cost of around £300 million a year. Legal aid would also be available in private family law proceedings where a child was at risk if those proceedings were an alternative to public law proceedings. An example of this would be legal aid for a special guardianship order for grandparents where the local authority had decided that this would be a preferable solution to taking a child into care. We have also expanded our original proposals on providing legal aid for private family cases where domestic violence is present to include evidence of child abuse.
The child-specific evidence here is the fact of a child protection plan as put in place by a local authority, although other types of evidence relevant in domestic violence cases would also apply. This is particularly relevant in respect of Amendment 45, which would use the evidence of a mediator to qualify someone for legal aid. It is of course important that a mediator reports any suspected child abuse to the local authority, and mediators are obliged to do so under their code of conduct. The local authority would then investigate, and if the mediator’s suspicions were confirmed, where relevant it would put a child protection plan in place. Alternatively, the authority may start immediate public law proceedings. Either way, legal aid would then be available either for private or public proceedings. Such a system ensures the well-being of the child, which must be the priority, but it would seem slightly strange to pre-empt the results of a local authority investigation by granting legal aid for a private family matter. Of course, if there was an emergency and the local authority for whatever reason was not taking action, legal aid would be available, with the benefit of a financial eligibility limit waiver, for someone to take out a protective injunction. Legal aid would also be available where a subsequent local authority investigation found that the issues were substantiated and a child protection plan put in place. The safeguards in the Bill are sufficient to secure the safety of children, and legal aid where it is needed.
Amendment 101—I see the humour in the number—seeks to include a power in the Bill to fund the not-for -profit sector to do work that is outside the proposed scope of the civil legal aid scheme. I can assure the House that we have been listening to the concerns raised about the sustainability of the not-for-profit sector, and we agree with many of them. As I listened to the noble Lord, Lord Newton, I recalled one of the advantages of a long life. One of the few successful things I did when I was in the House of Commons was something that I think cost the then Tory Minister, Gerard Vaughan, his job. He tried to cut CAB funding. I do not know whether the noble Lord, Lord Newton, was a member of the Government who sought to cut CAB funding at the time, but it just goes to show that what goes around, comes around. The Ministry of Justice already has the power to provide grants to not-for-profit organisations. For example, we are already funding the Money Advice Trust, a not-for-profit sector organisation that is responsible for running National Debtline.
The Government value the services provided by the not-for-profit sector. We are committed to ensuring that people continue to have access to good quality free advice in their communities. We have already committed to delivering £16.8 million of extra funding for this sector in this financial year. Today, I am pleased to go further and announce additional funding for this sector within the current spending review that will be announced very shortly in the March Budget. The Cabinet Office review will also conclude shortly and those two initiatives will secure the long-term sustainability of this important sector.
I have deliberately taken the time of the House. The Government do not dismiss the arguments lightly, but for the reasons that I have set out I urge noble Lords not to press their amendments. As I have said before, I believe that the change in Clause 8 that allows some of the doomsday scenarios—if they came to pass—to be brought back into scope, is a major concession. However, I will end as I began. I am not looking at the Labour Party—the Labour Party is there to do what Oppositions do: to oppose—but at the Cross-Benchers, and I ask them whether it is really their responsibility to be so—
Oh look, they are all waiting. It is the responsibility of Cross-Benchers, who supposedly, I am readily assured, are deciding individually to consider, as I am sure they do, whether their experience of having to take tough decisions in tough times merits filleting this Bill, as this series of amendments would do. What I have said in this speech makes a mockery of the idea that we are decimating—
No, I will not give way. Noble Lords have had a very good time. I have a right to point out that the attack that we have decimated social welfare law does not stand up. So much has been said in this debate, but it has been a matter of presenting doomsday scenarios and making predictions that may or may not come back. We have made many concessions, which makes this a better Bill, and I thank the House for that, but I hope that the House will not be lulled into taking a decision that will take the tougher responsibilities —the Budget responsibility and the public spending responsibility—down the Corridor. We should have the courage to make those decisions here and now.
Sit down. You have finished.
The House will realise that I rarely intervene in matters of this kind. In fact, I would go as far as to say that this is the first time that I have intervened. I hope that the noble Lord the Minister, for whom I have the highest regard, will withdraw any suggestion that if members of the Cross-Bench group go through the Lobby supporting these amendments, they are behaving irresponsibly.
Cross-Benchers are individuals who make up their own minds. I am entirely right to say that decisions that we have taken in the context of this Bill relate to public expenditure and the need to bring this economy under control. I will also say this, because we have had enough examples in Europe in the past year: if you lose control of your economy you go into another round of public expenditure cuts. Part of the reason why we have been able to have this debate today is the success of the Government in stabilising the economy.
What we have never heard—and I hope that the Cross-Benchers will also put this into their minds when they make their decision—is that members of the party opposite were committed to making a similar round of public expenditure cuts. That is their right in opposition, but they did not have to spell out where or how or when. That is very comfortable in opposition, but I am proud that we in the Government have taken those decisions. I hope that those who are willing to accept that we have taken tough decisions will give us their support in the Lobby tonight.
My Lords, first, I thank all noble Lords from every section of this House for their superb contributions tonight. I feel totally inadequate to sum up, but nevertheless I shall try.
It is very welcome that the Government are going to make additional funding available for the not-for-profit sector. However, noble Lords should take note that the loss of legal aid will mean that the not-for-profit sector will lose £51 million per year. Of that, the CAB’s element would be £20 million a year. I find it difficult to believe that whatever the Government can do to ease that burden it will be anything like adequate in order to make up the shortfall.
I paint a scenario. If, for example, the citizens advice bureaux were to get about half the funding that they are getting at the moment from legal aid, what would they do when people come in, desperate for help and advice? Do they say, “We put your name in a hat”, “We have a lottery”, or, “Only every second person who comes in can get legal advice.”? Frankly, it just will not work.
I am very concerned that my noble friend the Minister has not given me any hope at all on any of these issues. He said that the amendment would dismantle the central architecture of the Bill. I must tell noble Lords that, if that is the case, that is what should happen because the Bill will seriously inhibits claimants’ access to justice.
I am very disappointed with the Minister’s response. Like the noble Lord, Lord Newton, and I am sure everyone else, I would love the other place to think again about these issues, and I feel that I have absolutely no choice but to test the opinion of the House.
12: Schedule 1, page 125, line 5, at end insert—
“Social welfare law (No. 2)(1) Civil legal services provided in respect of a social welfare decision relating 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 2012; or(g) any other enactment relating to social security.(2) For the purposes of sub-paragraph (1), “civil legal services” includes—
(a) independent advice or assistance for an appeal to a second-tier tribunal; and(b) independent advice, assistance and representation at a higher court of such a decision.”
13: Schedule 1, page 125, 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 come to the first of a group of amendments dealing with clinical negligence. The noble Lord, Lord Phillips of Sudbury, has asked that his Amendment 101A be degrouped, and I ask the same in respect of my Amendment 137. Amendment 15, in the name of my noble friend Lady Grey-Thompson, should cover clinical negligence as a whole. My amendment covers only the cost of expert reports, which, as one noble Lord said in Committee, is the very least that should be covered by legal aid. If my amendment succeeds, it will not in any way pre-empt Amendment 15. If that amendment then succeeds, as I hope it will, then my amendment will lapse at Third Reading.
The difference between this amendment and many that have been debated in Committee—and, indeed, so far on Report—is that it will actually save money. The question is this: what is the best way of funding expert reports in clinical negligence cases? Unlike the previous amendment, that question is not likely to give rise to any great emotion. The method proposed by the Government in Clause 45 would cost between £16.8 million and £25 million. The cost of doing exactly the same under legal aid would be between £6.3 million and £6.9 million. If those figures are correct, as I believe them to be, that in itself should be enough to commend the amendment to the Minister.
I will come back to justify those figures a little later, but first I need to say a little about the background. As I am sure noble Lords know, clinical negligence claims are funded in two ways: legal aid or conditional fee agreements supplemented, in a majority of cases, by “after the event” insurance, the purpose of such insurance being to protect the plaintiff against an adverse order for costs. Under the current law, the premium charged by ATE insurers is recoverable from the defendants, usually the National Health Service, even if the plaintiff loses. That system was introduced by Section 29 of the Access to Justice Act 1999.
The Government then listened to concerns. It is perhaps best that I should describe those concerns in the words of Mr Jonathan Djanogly in the other place. Referring to expert reports, 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”—
as it then was—
“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.]
If we will not cover clinical negligence as a whole, as my noble friend Lady Grey-Thompson would wish, we all agree that at the very least we should cover in one way or another the cost of expert reports. To that extent, Mr Djanogly was absolutely right. The trouble is that he has chosen the wrong way to set about it.
Lord Justice Jackson, in his lecture in Cambridge in September 2011, described the Government’s proposals in Clause 45 as,
“the most expensive and inefficient mechanism which it could be possible to devise in order to achieve”,
the Government’s objective. It is easy to see why he used such language. One has only to look at new subsections (2) to (4) in Clause 45. They require yet more regulations to be made by the Lord Chancellor, at the very time when we are trying to reduce the burden of regulations in civil litigation. The regulations are bound to be complex. If the maximum of the relevant part of the premium, as it is called, is too high, the regulations will not achieve their objective. On the other hand, if it is set too low the insurers are sure to find one way or another around it. It is surely much better, and certainly much simpler, to cover the cost of expert reports by the well worn path of legal aid.
I find it difficult to see why the Government have chosen not only the most complicated way of achieving their objective but the most expensive, which brings me back to the figures. In Committee, I put forward a simple calculation on instructions, as lawyers say. I took £5,000 as the average cost of reports in clinical negligence cases. If you assume that the plaintiff has a 50:50 chance of success, the insurer must charge at least £5,000 if he is to break even. To that he must add something to cover his overheads and profit. The figure that is usually taken for that purpose is 25 per cent, so the premium will not be less than £6,250. If you then assume that ATE insurance was used in half the cases settled by the National Health Service in 2010-11, you simply multiply £6,250 by 2,700 and get a figure of £16.9 million paid out by the NHS. It is as simple as that. Compare that to the £6.3 million to £6.9 million spent on achieving the same result by legal aid.
In an e-mail sent on 1 March, the Government accept that the cost of Clause 45 will be £23.7 million if you accept, as one surely must, that the mark-up will not be less than 25 per cent. However, they say that the £6 million cost of legal aid does not take full account of the cost of taking that route. They say that that cost should be £17.5 million, not £6.3 million. However, even on their figures of £17.5 million and £23.7 million, the cost of Clause 45 will exceed that of legal aid by £6.2 million, which I would hardly regard as “relatively small” or “marginal”—the words used by the Government to describe that difference.
However, in truth, the saving is much greater than that to which the government figures point because the figure of £17.5 million that the Government have put forward is erroneous. It includes the cost of expert reports in successful cases as well as unsuccessful ones. The cost in successful cases is recorded by the Legal Aid Fund but is not—this is the vital point—paid by it. If you exclude successful cases from the figure of £17.5 million given by the Government, you come right back to the figure of £6.3 million, which is the figure that I have given all along. On that view, the saving is not what is conceded to be a saving by the Government, but one of £10.6 million. These figures were contained in an e-mail that was sent to the Government on 2 March, which has not, as far as I know, been answered. I beg to move.
My Lords, I will speak to Amendment 15, which is in my name and in the names of the Baroness, Lady Finlay of Llandaff, the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Beecham. As my noble and learned friend Lord Lloyd said, this amendment seeks to retain clinical negligence cases within the scope of legal aid. It is completely non-discriminatory, is not based on age or condition and saves money.
The Government have so far argued vigorously that many cases would be funded by the proposed exceptional funding mechanism and that it was not necessary to guarantee this by retaining them in scope. While it is an improvement to have the situation clarified and legal aid guaranteed for at least this small band of cases, that is, in effect, all that the Government have provided—clarification and a guarantee of what was already on the table.
I am pleased that the Government have moved forward on the retention of obstetric cases in scope, as opposed to relying on the exceptional funding route. This is very positive. In its statement announcing the change of approach, the Ministry of Justice said:
“We also agree that clinical negligence claims in obstetrics cases which result in severe disability must receive legal aid”.
It went on to say:
“A safety net will continue to exist for other more serious and complex clinical negligence cases where there is a human rights issue”.
This safety net is the same one that we were told meant that there was no need to retain even the obstetric cases in scope for legal aid because exceptional funding would take care of them. It is perhaps logical to conclude that exceptional funding is no more of an adequate safety net for other highly complex and deserving cases than it was for obstetric cases. Just about every clinical negligence case is complex, which is why, over time, successive Governments have agreed that clinical negligence needs to be kept in scope for legal aid. Not only would taking most clinical negligence cases out of scope result in higher costs to the taxpayer overall, but those costs will still be there but pushed somewhere else. Even more worrying, many people will be denied access to justice.
The independent report by King’s College London identified that the unintended consequences of taking clinical negligence out of scope for legal aid would be almost three times the projected saving for the Ministry of Justice budget—costs of £28.5 million set against a “saving” of £10.5 million. These clinical negligence cases which are not in scope for legal aid will in future be able to take their cases forward either through no-win no-fee agreements or with the benefit of exceptional funding. Under the new system, even if an expert report deems a claim to be valid, there is no guarantee that the claimant will receive representation under a conditional fee arrangement. “After the event” insurance is expensive, if, indeed, it is possible to obtain it. I do not believe that exceptional funding is a sufficient safeguard.
If the Minister revisits the responses to the consultation on legal aid, he will find that the vast majority of lawyers involved in clinical negligence cases say that they will not be able to take on many of these cases under the new arrangements. The noble and learned Lord, Lord Lloyd, cited Lord Justice Jackson, who said that the most expensive and inefficient mechanism that it is possible to devise is being put forward to achieve this policy objective. I agree with that comment. Solicitors will be forced to cherry pick only the most obvious cases of negligence, with others being left with no way of moving forward. I do not believe that this is acceptable in our society.
My Lords I ask noble Lords to support Amendment 31, which stands in my name and in the names of my noble friends Lord Newton and Lord Cormack and the noble Lord, Lord Crisp.
Amendment 31 would allow legal aid for all children who are victims of clinical negligence and not just some children, which, unfortunately, is the current position of my Government. I have both personal and professional experience of these cases as a mother and a former leader of a metropolitan district council. I would like to tell noble Lords something of my experiences. When my eight year-old boy was diagnosed with a psychosomatic illness, my husband and I went through the worst time trying to persuade doctors that something was seriously wrong. Eventually, the diagnosis was found to be faulty and we discovered that our son was in fact suffering from a very virulent form of bone and tissue cancer. Even though we had a very strong clinical negligence case, my husband and I decided not to pursue it because it would be too stressful and we had the resources to support my son. However, not every family is in this privileged position, and I met many through those dark times, and since, who needed to make a claim so that their families could survive.
I have seen at first hand how compensation for medical negligence allows parents to continue to care for their children in their own homes. It does not make it easy but it does make it possible. I have also seen what happens to parents who do not receive financial compensation. Caring for a child who has been the victim of a medical accident and is severely disabled, sick or injured normally gets progressively more difficult and can frequently result in separation and divorce and depression and other mental health disorders in parents. It can also result in an inability to care for other children in the household and parents losing their jobs, becoming homeless and having to be rehoused in social housing, and with the victim having to be cared for in residential homes away from their family. In other words, everyone ends up suffering—a child who is the victim, the parents and the wider family and the taxpayer. As a councillor, I know that all too frequently the local authority has to pick up the pieces and the financial cost.
The proposals in the Legal Aid, Sentencing and Punishment of Offenders Bill can only make a bad situation worse. The concession proposed by the Government allows legal aid where a baby is the victim of clinical negligence from the period of conception through to eight weeks after his or her due date in the case of neurological injury only. It relates only to babies who have suffered damage to their brain. As I understand it, children with physical disabilities resulting from clinical negligence at birth are not covered, and conditions such as Erb’s palsy would not fall into the category of receiving aid. This means that if a full-term baby is the victim of clinical negligence when it is 73 days old, he or she will be ineligible for medical negligence. However, if he or she suffers neurological damage two days earlier at 71 days, they can be granted legal aid. This seems a rather arbitrary and upsetting situation. I ask noble Lords to try to imagine how they would explain to their friends, family and neighbours why a baby who suffered neurological injury at birth could have legal aid but a baby blinded at birth, say by a forceps delivery, could not. Last year, £4.6 million was spent on legal aid for children who were victims of clinical negligence. The majority—estimated to be around £3 million—went on legal aid for babies who suffered neurological damage. As I say, this group has been conceded by the Government, so in reality we are arguing about a further £1.6 million or so to cover all remaining children.
I wish to tell noble Lords about Sophie Tyler from Newport. When Sophie was 14 years old, she went into her local hospital for a routine bladder operation. She underwent an epidural, which, sadly, went very wrong. Sophie is now paralysed from the waist down and will always be in a wheelchair for the rest of her life. Sophie is now 17 years old. She took action with the help of legal aid, and three years on she has received a medical insurance payout. This compensation will never make amends for what has happened to Sophie, but it will make it possible for her to live independently with support. In the cases of children, compensation pays for extensions to be built downstairs with bathrooms and bedrooms so that children do not have to be carried upstairs, which is more difficult when they become adults. Compensation pays for the widening of doors to allow wheelchair access and for hoists, electric wheelchairs and other specialist equipment not available on the NHS. It pays for occasional night-time and holiday respite care so that parents can get some much needed sleep and it pays, where possible, for extra tutoring to make up for lost schooling along with additional physiotherapy and holidays. Above all, compensation allows parents to carry on in the knowledge that there is someone who will take care of their child after they themselves die. Believe me, this is what worries parents more than anything else.
I therefore ask noble Lords to support children like Sophie next year and the year after—children who, through no fault of their own, become the victims of medical negligence and need legal aid to pursue their cases. I hope that my noble friend the Minister will concede legal aid for all children and recognise that although the concession proposed by the Government supports children with neurological injury, it does not address the needs of the remaining children who suffer hugely as a result of medical negligence and accident.
I follow the noble Baroness, Lady Eaton, with temerity, as she has made a remarkable speech based on her personal knowledge. I thank her for what she has said.
I also speak with experience of clinical negligence cases. I practised as a solicitor for some 50 years and on many occasions during that time came across cases which involved clinical negligence. The Government appear to be suggesting that clinical negligence claims should proceed by way of joint expert reports. I think that that is pretty impractical. Medical and other experts often disagree, and to embark on a joint report is often totally impractical.
Legal aid should be available in all cases of clinical negligence where it appears to the Law Society, or whoever is arbitrating on the issue, to be practical and necessary. The ability to go to joint experts, where it is proved to be absolutely essential, should remain part of our legal process, and lawyers ought to be given the opportunity to do precisely that. It would save rather than expend more money if we were able to embark on such a policy, and that has been proved in practice time and time again. Why are we embarking now upon the totally impractical idea of a single expert?
My Lords, I am delighted to follow the noble Lord, Lord Clinton-Davis. We entered another place on the same day in 1970; we have been friends ever since; and I have admired the way in which he has fought against real difficulties and played such a part in your Lordships’ House.
I was glad to add my name to the amendment that was so movingly spoken to by my noble friend Lady Eaton. Unlike her and, I suppose, most of your Lordships here, I have not had that personal experience involving a child in my own family. When I heard what she had to say, I felt all the more thankful that my children and grandchildren did not face those problems. However, as a constituency Member of Parliament for 40 years, I came across many sad cases that were similar to her own. They were dissimilar in only one respect, and that the one to which she referred—almost always the parents did not have the means to deal with the problem on their own.
No compensation ever adequately compensates for loss of limb or for any other severe disability. However, when one is dealing with clinical negligence, it is crucial that we treat all children, whatever the problem, in a similar way. My noble friend Lady Eaton made that point with quiet passion, and it was all the more effective for that.
I have a great respect and affection for my noble and learned friend the Minister who will reply to this debate. After the histrionics of the previous debate, I say to him that there cannot be a Member in your Lordships’ House who does not have sympathy with a Government who are faced with a pretty dire financial situation and looking carefully to see where they can make savings and cut costs. We all appreciate that and do not need to be lectured on the subject. Equally, however, we in this House all have a duty to try to look at things with a degree of objectivity which is devoid of the acerbity of party politics which so often dominates debates in another place.
In my 15 months in this House the two things that have endeared it to me more than any other place are its collegiate atmosphere and the way that we genuinely respect each others’ differences of opinion, even though we may all have deeply held personal political opinions and prejudices. However, we have before us an essentially modest amendment. I know not whether the amendments which the House has just been passed will drive a coach and horses through the Bill. I suspect that they will not and that we will have a chance to deliberate on these matters on another day. This amendment certainly does not do that, nor does it pile any degree of extra expenditure on government.
I take no delight in not supporting my Government. I was not able to support them on the previous two amendments, and I should very much like a response from my noble and learned friend that will enable me, with a tolerably light heart, to go into the Lobby with him if a Division is called. I very much hope that one will not be called. I hope that he will be able to accept the spirit of Amendment 31, even if he cannot accept the precise wording.
Those of us who have served in politics for a long time—and I saw the noble Lord, Lord Wigley, who I deliberately call my friend, nodding a moment ago—know that it is difficult for Back-Benchers in another place or Peers in this place to devise an amendment that will be absolutely acceptable in the precise terms in which it appears on the Marshalled List. However, I hope that we will have from my noble and learned friend a response that accepts the spirit of this amendment, and the amendments spoken to earlier, so that we can move on without clash and division and underline the fact that all of us are keen that there should be equality and fairness of treatment to everyone in this country. Although this Government, and every Government, have to act within severe constraints—there is nothing new in that—let us hope that we can recognise the Government’s dilemma while asking them in turn to recognise that there is within this amendment, so splendidly spoken to by my noble friend Lady Eaton, a real point of principle that deserves a most sympathetic response.
My Lords, when the Bill was first published it led to a great deal of correspondence from all sorts of quarters, including the Bar Council and many other bodies that were deeply involved, because the Government proposed to remove clinical negligence in its entirety from the scope of legal aid. They asserted, as I understand it, that most claimants would receive representation under a conditional fee agreement—that is, from a no-win no-fee lawyer. However, if implemented as drafted, the Government’s proposed reforms to civil litigation funding laid out in Part 2 will deny access to justice to all but those with the most clear-cut cases.
Clinical negligence claims raise complex issues of liability. The risks of taking on such cases on a no-win no-fee basis can therefore seem very high indeed, so claimants will find it difficult to find representation. I therefore support what the noble and learned Lord, Lord Lloyd, had to say in support of his amendment, because it provides for obtaining the expert reports that would of course be necessary and says that they should retain legal aid. But, on the other hand, I find myself more in support of the next amendment in the group, Amendment 15, which would provide the cost of legal proceedings in relation to clinical negligence. That is important, and we have heard why from a number of contributions to the debate. I therefore hope that we can persuade the Government that what we are saying in Amendment 15 is sensible and that they will accept it.
My Lords, I want to give my noble and learned friend the Advocate-General a brief moment of ministerial bliss during this debate—there have not been many so far. I speak to government Amendment 68. My noble friend Lord Faulks and I and others have argued that clinical negligence should be available for severely disabled infants—at least for those who suffered neurological damage, which may of course result in physical damage, and often does, either before birth, at birth or shortly after. It is a great pleasure to see Amendment 68. It has been the result of some negotiation, but I should say that the Government have been very willing negotiators at all times on this issue.
I recognise that there will be understandable disappointment if legal aid is not extended in the same way to all clinical negligence relating to infants, even that which does not involve neurological damage, and disappointment that legal aid is not being automatically scoped into all clinical negligence. Like the noble Lord, Lord Clinton-Davis, I am old enough to have been involved in clinical negligence cases and seen the advantage of legal aid, particularly for those of poor means.
I raise one issue with my noble and learned friend on which I would be very grateful for a specific response. It is about other clinical negligence and exceptionality. Many of us have pored over Clause 9, entitled “Exceptional cases”, although if one reads the text of Clause 9, it is ambiguous whether it applies only to exceptional cases or, potentially, to a largish cohort of cases that fall within Clause 9(3)(b)—that it is appropriate to grant legal aid,
“in the particular circumstances of the case, having regard to any risk that failure to do so would be”,
a breach of convention or enforceable EU rights. I have in mind where there may be a number of claims of a similar nature—for example, a group of 100 claims arising from the negligent use of a particular drug. One has only to say the word thalidomide to understand how that can arise. I believe that a similar situation could arise in our age, just as it did then.
I would be grateful if the Minister would confirm that, were such a cohort of cases to exist, it would not be excluded from exceptionality by reason of being a cohort or group. If one looks at the decided cases in which the word exceptional or exceptionality has been interpreted by the senior courts, it is generally understood to refer to singular cases. We can envisage a plurality of cases of the kind I described, which may give rise to a risk of a breach of convention or other EU rights.
My Lords, I, too, welcome the concession that the Government propose in Amendment 68, in so far as it goes, to allow legal aid to be available in cases where infants have suffered perinatal injury. As the parent of a child who suffered perinatal injury, I can only welcome it. I simply ask the Minister on what argument of principle he extends legal aid to that group of people but not to others whose lives may be ruined through the experience of clinical negligence.
My Lords, I shall speak briefly in support of Amendment 13, proposed by the noble and learned Lord, Lord Lloyd of Berwick, and Amendment 15, tabled by the noble Baroness, Lady Grey-Thompson, both of which would go some way to bring civil legal proceedings relating to clinical negligence back within the scope of the Bill. I welcome the comments made by the noble Lord—my friend, outside the political arena—Lord Cormack and by the noble Lord, Lord Carlile, on the cases that he has been following up. I shall be very interested to hear the replies to them.
Having campaigned with the noble Lord, Lord Ashley of Stoke, on the question of thalidomide, many years ago, those comments ring bells. We must ensure that, in drawing up a strict structure which is meant to avoid exceptions, other than those provided for specifically, we do not lose the possibility to secure justice for people who may be, as the noble Lord, Lord Carlile, rightly said, in the same position in this day and age.
It is of course welcome news that the Government have conceded bringing cases involving children who have suffered brain damage at birth back within the scope of legal aid, as provided by Amendment 68. That is a significant concession, and I congratulate those who have worked to secure it. As Peter Walsh, chief executive of Action against Medical Accidents, pointed out, that limited step in the right direction makes the decision to keep all other clinical negligence cases out of scope appear even more irrational. Why a distinction should be made between newborn babies and young children, for example, is rather opaque. The Government have questions to answer on that point.
On costs, during Committee I cited a report by King's College which argued that proposals to remove clinical negligence cases from legal aid will not save the Government money but will, rather, shift the bill to the NHS. The report claimed that the changes would cost the NHS £28.5 million, which is nearly three times the £10.5 million which would be saved by the Ministry of Justice. The noble and learned Lord, Lord Wallace of Tankerness, who was on the government Front Bench at the time, did not address that question in detail. He hid behind the general savings produced by the Bill. I would be very grateful if, in responding to this short debate, he addressed the relationship between the savings and the costs, which were highlighted by the King's College report. That underlines the point on costs made by the noble and learned Lord, Lord Lloyd, in introducing the amendments. We are actually providing for savings.
In Committee, I pointed out that under the proposed reforms contained in Part 2, victims of clinical negligence will not have recourse to the no-win no-fee system—a matter raised by others—as the complexity surrounding those cases will prove too risky for most solicitors to take on. The Bar Council has pointed out that it is very unlikely that “after the event” insurance will still be available for the purpose of obtaining expert reports. It is difficult to see where victims of clinical negligence are meant to turn for support. I strongly urge the Minister to consider expanding the provisions of Amendment 68 so that all genuine cases of negligence have access to justice.
My Lords, I intervene very briefly to go back to the first of the speeches on this group, which have contained a number of powerful offerings, the speech of the noble and learned Lord, Lord Lloyd. He was kind enough to write to me and others setting out the figures that he gave in his speech. I found what he had to say deeply disturbing and something that I hope that the Minister will be able to help us with. If the noble and learned Lord, Lord Lloyd, is right, it appears that the Government did not do their figures correctly when the measures were introduced. These cuts, which are clearly very painful, are being advertised to the public and to this House as ones which will save money, but it is abundantly clear that when the figures are done properly—there has been no suggestion yet from the Government that the noble and learned Lord’s figures are incorrect—the proposals in Clause 45 will cost the country money. That is the basis on which we are going through this very painful exercise. I want to hear from the Minister how the Government can possibly justify taking that step.
My Lords, in supporting the amendments, I just want to say that clinical negligence is such an important matter. I am told that one in 10 people can have a problem with clinical negligence. That should not happen. Much more care should be taken in patient safety. If there are cases of negligence, the health authorities have their own lawyers. If there is no legal aid for the patient, it means that there is not a level playing field. After all, it is all taxpayers’ money.
My Lords, I sense that the House is getting to the point where this debate needs to draw to a close, so I will not go over the points that I was going to make at length, except to point out that there is a moral case and a financial case for both the first two amendments in the group. The moral case is that people are particularly vulnerable when they are in the hands of clinicians, their vulnerability being the reason that they need a clinical intervention. Therefore, closing down access to justice or compensation when things go awry seems particularly wrong.
I have a further point to make on allowing clinical negligence to come back into scope. The financial arguments, as already laid out by the noble and learned Lord, Lord Lloyd of Berwick, and in the report of King’s College London, indicate that on financial grounds alone both these amendments make sense. To repeat the figures given by my noble friend Lord Wigley, the cost to the public purse is estimated to be £28.5 million, as opposed to the £10.5 million that the Ministry of Justice hopes to save by this measure. We have heard a lot about the need to save money.
There could be unintended consequences from this calculation of increased, not decreased, expenditure. The intention behind the Government’s amendments is to be welcomed but I fear that there will be complications in, for example, trying to work out the dates of a pregnancy if a scan is not done in the first trimester. Women’s periods are notoriously unreliable as a method of establishing dates in a pregnancy, and arguments about whether it is one day or another will make life extremely difficult.
I end by pointing out that in his report Lord Justice Jackson said that of all the proposed cutbacks in legal aid, the removal of legal aid in relation to clinical negligence was the most unfortunate. He went on to state that if—in his view, wrongly—legal aid for clinical negligence was cut, then removing legal aid for expert reports would not make sound sense.
My Lords, I wonder whether I might be allowed to intervene from this Front Bench position without people feeling that I have fallen victim to delusions of grandeur of one kind or another.
I wish to make three points. First, I support the general thrust of the arguments that have been put forward by the noble and learned Lord, Lord Lloyd, the noble Baroness, Lady Grey-Thompson, and my noble friend Lady Eaton. I shall not elaborate but I think that they have made excellent points which need to be considered.
The second is to build on what was said by my noble friend Lord Cormack and, even more so, by the noble Baroness, Lady Mallalieu, about one striking aspect of the speech of the noble and learned Lord, Lord Lloyd, and indeed the note he had sent me. Had I had the temerity to intervene in the winding-up of the previous debate or had I wished to elongate my speech in that debate, I would have said that those of us who were supporting it were not hell-bent on increasing the deficit and raising the debt. The key point is that we just do not believe the Government’s figures. No one outside the Government believes that savings are going to be made on the scale that the Government claim, and in many cases we think that the deficit is going to be increased. We now have this concrete example of where the figures are wrong, and I hope that the House will bear that in mind.
Finally, one thing that sticks in my mind from this whole exercise is a seminar at which we heard from someone who had been severely damaged by clinical negligence, along with his wife. Victory in that case had enabled the wife to go on looking after the man and for him to go on having as normal a life as possible in a severely disabled state. I just ask myself how much the state saved in that one case, where the husband and wife would not otherwise have been able to go on in those circumstances. How much had been saved in terms of many years of residential care or much more extensive support from the social services department? In my view, these are the things that have not been factored into some of these calculations, and there are many others. Although not strictly related to this amendment, every child taken into care costs £36,000 a year. These are the costs that have not been factored in. I think that we are owed some better answers than we have had so far, and I hope, without much expectation, that we will get some better answers tonight.
My Lords, I take note of the indication from the noble Baroness, Lady Finlay, that the House may have heard enough but I hope that noble Lords will bear with me for a little while. I spoke on this subject at Second Reading and on a previous occasion and I should remind the House that I have spent much of the past quarter of a century working on these clinical negligence cases. I remind myself of that also, lest I should be guilty of any lack of detachment on these difficult issues.
I remain enthusiastic about legal aid. A well organised legal aid scheme with proper controls over funding, franchising of solicitors to ensure relevant expertise and a rigorous approach to the funding of individual cases is a highly worthwhile aspiration. Unfortunately, we have rarely had a scheme like that. In saying this, I do not wish in any way to denigrate the contribution of the many public-spirited lawyers who practise in the field, but too much has been spent on cases which have failed or were not really worth while even had they succeeded. It is perhaps something of an irony that clinical negligence—latterly, at least—has been a far more effectively funded area of the law than ever before. By “effectively”, I do not just mean in terms of the size of the funding; I simply mean the efficiency in the way that specialist lawyers conduct this litigation.
Not all claims have been funded by legal aid. In some there are difficulties of eligibility, and others have preferred to go the route of CFAs. These provide greater flexibility and, of course, greater profit. On the previous occasion, the Minister pointed out that more than 80 per cent of clinical negligence cases are taken under CFAs, so this remains, at least in theory, an option for the future. However, it is of course a much less attractive option. As the noble Baroness, Lady Turner, pointed out, there is no ATE insurance and success fees are limited to 25 per cent of past losses and general damages. This is particularly so with complex cases, where investigative costs are particularly expensive and may ultimately prove irrecoverable if the case fails to get off the ground or fails in the end.
I have not been, as a number of noble Lords will be aware, entirely uncritical of this Bill. In particular, I was anxious to ensure that there was a reiteration in Clause 1 of the fundamental principle of access to justice, and I was concerned that there should be additional steps to underline the independence of the director of legal aid casework. Unfortunately, my views did not coincide with the views of the Government. One reason I felt able to support those amendments was that they did not involve any government expenditure but reflected what I thought were important principles about the justice system.
However, with this group of amendments we are now concerned with areas that involve government expenditure, although quite how much, I accept, is very much open to debate. The financial situation requires there to be cuts and the Government have taken the perfectly reasonable view that the legal aid budget must bear its fair share. I remain somewhat unconvinced by the stance taken by the party opposite, which seems to be that civil legal aid would have been left entirely alone by it and, for the most part, CFAs as they currently are represent a satisfactory situation.
The Government have had to take some hard decisions in cutting back on expenditure on legal aid. Surely we are acknowledging that and are engaged in scrutinising this Bill in an attempt to limit the damage rather than simply pretending that there are limitless funds available for legal aid. Perhaps I may join the noble Lord, Lord Carlile, and congratulate the Minister and his officials on their response to the concerns that I and other noble Lords expressed about the position of brain-damaged babies. The Government have put down this most welcome amendment. I genuinely believe that this is a thoughtful and appropriate concession and an indication that the Government are trying to address some of the very difficult situations which this legislation throws up.
Other noble Lords have made cogent points about cases which fall outside this government amendment. Why stop at brain-damaged babies? In an ideal world, I would certainly agree. Of course, there are potential anomalies and complex cases involving adults and cases involving children who are still children but are over eight weeks old when a negligent event takes place. All noble Lords who have made these points have a valuable and persuasive argument and many of my professional colleagues would echo their concerns and support the arguments. If a line has to be drawn—it is a big if—is it right to draw the line with brain-damaged babies? I will not be popular with my professional colleagues for saying that perhaps a line has to be drawn somewhere.
Another way of addressing the issue is to ask: is there anything unique or at least very different about these cases? I have probably been involved in almost all the types of cases that have been the subject of the debate in your Lordships' House. Many of them involved great difficulties. Of course, all those cases will be capable of being pursued, but not with legal aid. Why are these brain-damage cases so difficult? The main reason, which may not be wholly appreciated outside the world of medicine, is that most cerebral palsy cases are not the result of obstetric mismanagement or midwifery mismanagement. There has been an enormous amount of research on this which has shown that only a small minority could be so attributed. The popular notion that it is asphyxia followed by brain damage caused by too slow a response from doctors is not usually right.
One of the difficulties in such cases is the necessity to obtain causation experts: neuro-radiologists, paediatric neurologists and neonatologists. Of course, all that costs time and money and involves a great deal of expertise on all sides. Those of us who have been involved in this litigation are often faced, at the end of the investigative process, with turning to parents, who, of course, care passionately about their children and are concerned to do everything they possibly can to help them, to tell them that the case cannot succeed. It is not a pleasurable experience but it is one that acknowledges the difficulty of establishing these cases. Who, among your Lordships, would deny those parents the opportunity of finding out whether they have a case?
That is why, with some reluctance, I acknowledge that there is a very rough dividing line between these and other cases. What are those other cases? Like other noble Lords, I hope that the exceptional-funding route can provide some succour for those difficult cases. Perhaps the Minister will go further and consider some of the amendments more sympathetically than has been the indication so far.
The alternatives put forward by these amendments are various. The amendment brought forward by the noble and learned Lord, Lord Lloyd of Berwick, seems, to my mind, to be almost unanswerable in terms of economics. It would provide some significant help to those cases that fall specifically outside the exception which is the subject of the government amendment. A report may not be enough, but it is certainly something. The other amendments go further and it may be that your Lordships favour them.
Finally, I should mention the amendment in the name of the noble Lord, Lord Phillips of Sudbury, myself and others. I was asked to say something about it at this juncture so I shall very briefly. The amendment deals with the question of a review of clinical negligence. The range of the arguments and the difficulties that have been outlined in the course of this debate show how important it will be to see the effect of any changes brought about by this legislation. In due course, I hope that that will produce a positive response from the Minister.
My Lords, I am sure that the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Newton, will appreciate the importance of the concessions which the Liberal Democrats have negotiated—namely, that there should be a power in the Lord Chancellor to put areas of law back into scope because they may very well be right. It may be that these alterations will be more expensive than the Government think at this time. I very much welcome Amendment 68 which keeps birth injuries within the scope of legal aid. The reason for being concerned about cases claiming damages for personal injury arising out of medical negligence is that they currently receive legal aid as an exception to the previous Government’s removal of legal aid in personal injury cases.
Of course, four out of five claims fail or are withdrawn. Unlike a car accident or a factory accident, it is very difficult to appreciate negligence where negligence happens without the highly specialised and expensive investigation to which my noble friend Lord Faulks has referred. Although I have some experience of medical negligence cases, I defer to his very great experience and expertise. He raises the question, which I think is on everyone's mind: if you make an exception for birth injuries, what about the rest? It does not mean that claimants will be denied access to justice. If at the moment 80 per cent of clinical negligence cases are handled by conditional fee agreements, a greater proportion of these cases will simply be added to that route for funding.
In the course of the reforms that are set out in this Bill, it is essential that one-way cost shifting occurs in relation to cases that are brought under conditional fee agreements. That means that, win or lose, the defendant insurers will pay their own costs. The reason for the huge rise in insurance premiums, to which the noble and learned Lord, Lord Lloyd, referred, is the huge increase in the costs of the defendants. If four out of five claims fail, a claimant is very much without insurance; after-the-event insurance is very much at risk of being ruined by bringing an action. If, as the Government propose, one-way cost shifting is applied in this area, the unsuccessful claimant will have to carry only the costs of the disbursements. In medical negligence cases, as has been pointed out, such costs can be very high. It was for that reason that, in the Commons, the Government, recognising the problem, amended the Bill so that the cost of the premium of ensuring the disbursements, the costs of the medical expert reports, will be passed over to an unsuccessful defendant and will be absorbed, in the usual way, by the insurance company if the claim does not succeed. The insurance premium, instead of being at the dramatic size that it is at the moment, will be very much reduced and the risks under conditional fee agreements of unsuccessful claimants paying a great deal of money will be very much reduced.
The whole area of medical negligence needs to be looked at. Although we have been talking about high-cost cases, in fact the majority of these cases attract damages of less than £20,000. They are for negligent treatment for minor injuries perhaps. We are not always talking about catastrophic injuries in relation to medical negligence. Therefore, I have been arguing for an NHS redress scheme, such as that which was introduced in Wales within the past two years. The Government have said that they regard that scheme, which deals with cases up to a value of £20,000, as a pilot and, depending on how the scheme goes, will consider introducing it into England.
But the power already exists. The previous Government passed the NHS Redress Act in 2006 and Wales grasped the opportunity, as did Scotland. They grasped the opportunity of introducing a scheme with fixed fees for lawyers and fixed fees for expert reports to satisfy the problem that exists with low-value medical negligence cases. If we could progress that a little further in England, it would do a great deal to relieve the concerns that have been expressed here today.
I hope that my noble and learned friend Lord Wallace will be able to make some favourable noises in relation to an NHS redress scheme. The Opposition could not object: they brought in the Act in 2006, though they never thought that the people of England deserved it being implemented. On the other hand, the people of Wales took a different view. All reports so far on how its scheme is going suggest that it works well, reduces legal fees and provides solutions for people who have been injured. I hope that the Minister will tell us that something along those lines will be considered in this very difficult area.
My Lords, perhaps I may ask a short supplementary question following the queries made by my noble friend Lord Carlile about Clause 9. I was intending to raise it on a later amendment but will do so now if my noble friend is going to deal with it.
The natural meaning of “exceptional cases” suggests to me something very unusual about either the claim or the claimant. I am troubled that claimants might fall foul by virtue of being part of a cohort. Can the Minister help me with what is meant by “enforceable EU rights”, which, along with convention rights, bring one within the exceptional determination provision?
My Lords, before I address the amendments, I must correct something that I said in Committee. I unfortunately misrepresented the noble Lord, Lord Wigley, as saying that 10 per cent of National Health Service patients suffered clinical negligence. I rather conflated different figures. He referred to the fact that a million of what are described in somewhat Orwellian language as “adverse incidents” take place in the health service, of which only 10,000 give rise to claims, which represents only 1 per cent of those adverse incidents.
The noble Lord, Lord McNally, has in the previous debate, and indeed in virtually every debate, prayed in aid as a rationale for government policy the question of costs. It is not unreasonable that costs and public expenditure should form part of these discussions, but, as we have heard today from the noble and learned Lord, Lord Lloyd, the noble Baroness, Lady Grey-Thompson, and the noble Lord, Lord Wigley, and others, the argument in this case runs the other way. What the Government are proposing would cost the Exchequer, rather than the converse. In any case, we are speaking only of some £10 million, which would have been the saving under the Government’s original policy. I welcome so far as it goes the amendment that the Government are proposing. As they are now going some way—though not far enough—towards meeting the case for extending legal aid, that amount of saving would be reduced in any event.
However, it is not just those of us who support the amendments of the noble and learned Lord and of the noble Baronesses, Lady Grey-Thompson and Lady Eaton, who take the point about the cost and the way in which the system would work. No less an authority than the National Health Service Litigation Authority has expressed its considerable reservations about the Government’s approach, saying:
“We have serious concerns over the proposal to withdraw legal aid from clinical negligence claims. Whilst we have seen an upsurge of claims brought under Conditional Fee Agreements (CFAs) in recent years, we question whether CFAs are likely to be readily available to fund many of the more serious claims currently brought via legal aid”.
That view is at odds with that of the noble Lord, Lord Thomas. Given that the litigation authority is at the receiving end of these claims, I am inclined to give rather more weight to its views.
Although the organisation questions, it is hardly saying something that is contrary to what I have said. I have said that if everything went wrong and worst-case scenarios arose, the amendment accepted by the Government, which would permit bringing these matters back into scope, would be extremely important.
It would be extremely important if the Government acted on it. We do not know that they will. While the noble Lord claims credit for the amendment, he was not quite so enthusiastic when it was being debated in Committee at the instigation of this side, but that is a little beside the point. The litigation authority states clearly:
“Overall, we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria”.
In that phraseology, it echoes the words of Lord Justice Jackson.
Welcome as the government amendment is, they anticipated some discussion about it because they also questioned whether the scheme would cover only cases of the most severe brain damage or whether it would extend also to claims for moderate brain damage and shoulder dystocia, or to children whose mental faculties are spared but who have serious physical disabilities. We know that we are dealing only with a limited number of perinatal cases, as movingly explained by the noble Baroness, Lady Eaton. Again, it would seem that, on balance, the litigation authority, although it welcomes no doubt the progress made so far, would not be content with leaving the situation as it stands.
Of course, the case of Sophie Tyler was very moving. It is interesting that her solicitor said:
“This is an important case which has allowed our client to access justice and secure the lifetime of future care she needs but it would not have been possible without the support of legal aid”.
That is a very important observation. However, there are many other kinds of claim which arise out of different types of clinical negligence and with different effects. While the number of adverse incidents has now risen to 1.15 million, there are some 2,500 clinical negligence claims in what is a called a “serious category”. Of those, 12.5 per cent result in death; 17 per cent lead to unnecessary operations or amputations; 8 per cent lead to damages to nerves or senses; and 2.9 per cent lead to cancer. So 50 per cent of six major categories overall are not of the kind that would be covered by the government amendment.
In these circumstances, it is quite clear that a substantial number of people will not be able to access legal aid. Despite the assertions of the noble Lord, Lord Thomas, it must be questioned whether the conditional fee system would be an answer to that and, in particular, whether that would not in itself increase the costs to the National Health Service.
Perhaps I may point out to the noble Lord, and my noble friend the Minister will confirm this, that I raised the issue of increasing the powers of the Lord Chancellor before Second Reading. If he would like to consult the record, he will see that my amendment, to bring areas back into scope, was tabled on the very first day that amendments could be put down. The amendments put down by the Labour Party were many days after that.
My Lords, some nerve damage is being sustained by the noble Lord. Let us, however, concentrate on the issue, which is rather more important than claiming credit for amendments; namely, the future of patients who undergo clinical negligence and who have claims. We have heard much talk about equality of arms in litigation. I fear that what the Sophies of this world may face is more akin to a farewell to arms. That is the danger we face if legal aid is not extended.
There is a hierarchy of amendments before us tonight. Of course I endorse the Government’s amendment, as far as it goes. Equally, we support the amendment of the noble and learned Lord, Lord Lloyd. However, for us the best amendment—because it effectively embraces both the others—is that tabled by the noble Baroness, Lady Grey-Thompson. We wish her well should she decide to test the opinion of the House at an appropriate moment.
My Lords, I think that it is evident to the House that we have had a very important, serious-minded and sensitive debate. I listened to many of the speeches at Second Reading when many of these points were aired, not least on perinatal and neonatal injury. I also responded to the debate in Committee when, again, passion and concern was expressed in all parts of the House.
The debate benefited from noble Lords’ experience. My noble friend Lady Eaton referred to her personal and professional experience. My noble friends Lord Faulks and Lord Carlile have professional experience in the legal sphere, as has the noble Lord, Lord Clinton-Davis. While I anticipate that I am not going to be able to bring succour to all those who spoke, I hope that in responding to the debate I may indicate that this is an issue that the Government have treated seriously, and on which they have sought to respond to many concerns expressed in earlier debates. We believe that the provisions that we are putting in place provide a proper means of addressing these important issues.
Concerns were expressed at Second Reading and in Committee about the serious and complex cases involving brain-damaged babies for whom a conditional fee agreement might not be able to be secured, and thus they would need to rely on exceptional funding under Clause 9, which could leave their families in an uncertain position. For that reason, the Government brought forward Amendment 68. I welcome the fact that it was welcomed by the noble Lord, Lord Beecham, on the opposition Front Bench, and by my noble friends Lord Faulks and Lord Thomas of Gresford. My noble friend Lord Carlile said that it was a moment—perhaps a very rare moment—of ministerial bliss this evening; and the noble Lord, Lord Wigley, accepted that it was a significant concession. As I indicated, it was brought forward in recognition of the concerns raised, and to put beyond doubt that legal aid will remain available for babies who suffer brain injury at birth that will lead to a lifetime of care needs.
We recognise that in these cases there are difficulties in obtaining funding through CFAs because of the extent and expense of the investigations required. We stated that we expected to spend about £6 million on legal representation in clinical negligence cases that merited exceptional funding through Clause 9; and we said that we expected a significant proportion of the £6 million to be spent on serious infant brain-damage cases. Given that fact, we decided that it would be appropriate to bring these cases back in scope. We hope that this will provide certainty to families and make the application process more straightforward.
The amendment provides funding for claims for medical negligence causes of brain injury as a result of which a child is severely disabled. I listened to, and understood, the inevitable concerns expressed about where one should draw a line, and I will say something about that. The noble Lord, Lord Howarth, spoke very briefly but with a weight of personal experience, and asked whether we could identify the issues of principle that underpinned the amendment. Our intention is to cover cases of medical negligence where the child is most vulnerable: during its time in the womb, during delivery and immediately afterwards. For that reason, the amendment provides for funding in cases where negligence occurs in the period beginning with the mother’s pregnancy and continuing until eight weeks after birth. We recognise that premature babies are in a particularly vulnerable situation. That is why the amendment also provides that where a baby is born prematurely, the eight-week period will be taken to start from the point at which the mother would otherwise have begun her 37th week of pregnancy.
Because our intention is to cover birth and pregnancy-related negligence, we have had to draw the line at some point after birth. The amendment refers to the eight-week period because it is in the first few weeks of life that a child is at their most vulnerable. This period is also one in which postnatal medical care is expected to take place. It is also provided for in the guidance from the National Institute for Health and Clinical Excellence entitled Routine Postnatal Care of Women and their Babies. In cases where negligence occurs beyond the eight-week point, there will remain a safety net in the form of the exceptional funding scheme under Clause 9. I will say more about that when I address the amendments tabled by my noble friend Lady Eaton and the noble Baroness, Lady Grey-Thompson. I will address the question of whether the failure to fund would amount to a breach of the individual’s rights under the European Convention on Human Rights.
It is important to stress that exceptional funding decisions will necessarily be taken by the director on a case-by-case basis. My noble friend Lord Carlile asked if there could be a multi-party action to satisfy the Clause 9 criteria. He will be among the first to recognise that it is difficult and possibly unwise to speculate about hypothetical cases. However, in principle it would be possible. Each application would be assessed against the criteria, and it may well be appropriate to fund the lead case in a claim if there is a requirement for it to be funded under, for example, Article 6 considerations. It may be the case that other claims could then progress on a CFA basis. The question would turn on the individual case, but there could be a lead case where failure to fund it would amount to a breach.
My noble friend Lady Hamwee asked what was meant by enforceable European Union rights. They are rights to legal aid which might have direct effect in domestic law. An example would be rights enshrined under Article 47 of the European Union Charter of Fundamental Rights, which provides the equivalent of Article 6 protection in cases falling within the scope of European Union law.
Amendment 13, moved by the noble and learned Lord, Lord Lloyd of Berwick, seeks to bring into scope civil legal services for obtaining multiple expert reports in medical negligence cases. He indicated that government Amendment 68 would provide legal aid for cases where the most expensive and extensive medical reports would be required, and that his amendment would cater for the remainder. However, we believe that it would not be limited to the remainder of those cases that are presently funded by legal aid. Solicitors currently have to choose whether to use a legal aid route or a CFA route to fund a case. Only 18 per cent of cases where the funding method is known use legal aid. As my noble friend Lord Thomas of Gresford indicated, some 82 per cent of cases proceed down a conditional fee agreement route.
The amendment would open up legal aid to many cases that are funded by way of CFA, and could mean that lawyers who currently have to carry the no-win no-fee risk to get their success fee could apply for legal aid to cover the expert report in every case where their client is financially eligible, and still get their no-win no-fee success fee in respect of their other legal costs. This is not a fair balance for the taxpayer. It could also result in a significant expansion of the legal aid scheme. The taxpayer should not be required to pay where these cases have already been taken forward and paid for by alternative means. The position would also be limited to those who are financially eligible for legal aid. That would mean that those who are outside that eligibility—which could be many people—would have no assistance in funding expert reports in criminal negligence cases.
I recall that in Committee the noble and learned Lord presented a torrent of figures, and I indicated that we would look at them. I encouraged officials to look at them and I know that there was some engagement, that he met my noble friend Lord McNally and that there were exchanges on these figures. In this situation, we must agree to differ. The Ministry of Justice analysts carefully reviewed the calculations. We sought to explain the Ministry of Justice’s calculations. The matter is very technical; I have tried to get my head round both sets of figures.
However, as I indicated, we do not accept the figures that are being put forward. I know that my noble friend Lord Newton, the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Wigley, raised our calculations. I am more than happy to place in the House Library the Ministry of Justice’s calculations that show that allowing recoverable ATE insurance premiums for expert reports in clinical negligence cases will incur extra costs to the public purse of between £1 million and £4 million compared with retaining legal aid funding for such reports. We could debate whether they are marginal costs, and I think that in the context of our reforms as a whole they are marginal, but we believe they are justified to ensure that clinical negligence claimants are able to obtain these reports. As has been pointed out, we are taking powers in Clause 45 to be able to control the costs of insurance premiums to defendants, and we will discuss this further with stakeholders in due course.
As I have indicated, financial eligibility for legal aid has become tighter under Governments of all hues over recent years, and I fear that the noble Lord’s amendments could restrict assistance to those who are eligible for legal aid. If that were to happen, a large number of people could find that they were unable to obtain the report they needed, even to consider bringing a claim for clinical negligence.
I turn to the amendments tabled by my noble friend Lady Eaton and the noble Baroness, Lady Grey-Thompson. One could not help but listen very carefully and sensitively indeed to the speech by my noble friend Lady Eaton and to the case of Sophie Tyler that she raised. I indicated earlier that the bulk of the £6 million that we had previously thought would go towards exceptional funding would be covered by cases that we believe will now be covered by the Government’s amendment. That means that there will still be cases for exceptional funding under Clause 9. It will not simply allow any human rights claim to come into scope but will ensure the protection of an individual’s rights to legal aid under the European convention as well as, as my noble friend Lady Hamwee said, the rights to legal aid that are enforceable under European Union law.
In considering whether exceptional funding should be granted in clinical negligence cases, the court will take into account factors that case law and Article 6 indicate as weighing in favour of the provision of public funding in individual cases: namely, the ability of a client to present his or her own case, the complexity of the matter, the importance of the issues at stake and all the relevant circumstances. I hope that that will give assurance that that provision is there for exceptional cases.
As my noble friend Lord Thomas of Gresford pointed out, some 82 per cent of clinical negligence cases today proceed by way of conditional fee agreements. As these are cases of personal injury, those conditional fee agreements are supported by one-way cost shifting. One would hope that that would give some reassurance to those who wish to look at raising actions by way of a conditional fee agreement.
I think my noble friend expressed some concern about whether there would be difficulty in finding a solicitor who might be able to take such a case. No-win no-fee CFAs are a growing form of funding for clinical negligence cases, and legal aid has been a diminishing form of funding. The data show that last year 82 per cent of clinical negligence cases were funded by means other than legal aid, such as CFAs, before-the-event insurance or private funding, so the vast majority of cases are currently not funded by legal aid, and there is ample experience among lawyers of dealing with cases on a non-legal aid basis, as they have to do now in cases where the victim falls outside the relatively low financial eligibility for legal aid.
The noble Lord, Lord Clinton-Davis, mentioned expert reports. We believe that allowing a power to allow recoverability of ATE insurance premiums in respect of expert reports in clinical negligence, coupled with our proposal to encourage better ways of commissioning expert reports, including the use of joint expert reports, will be a further means of trying to address some of the concerns that have been expressed.
It is very evident. We want to encourage joint expert reports, but clearly there will be cases when that is not possible because there is a division of opinion. In our debates on Monday evening, the noble and learned Baroness, Lady Butler-Sloss, indicated some of the very conflicting expert reports in cases she had heard about shaken baby syndrome. That is not clinical negligence, but it is clearly an example of conflicting reports. Nevertheless, where it is possible to go towards joint expert reports, it should be encouraged.
My noble friend Lord Thomas of Gresford also quite properly drew attention to the fact that while we have quite rightly focused on some of the very serious cases and consequences of clinical negligence, in many cases of clinical negligence the damages could be under £20,000. Your Lordships may be aware that the Government have recently announced the extension of the low-value claims process for personal injury claims. We are working closely with the National Health Service Litigation Authority and claimant lawyer representatives to set up a pilot for dealing with low-value clinical negligence cases. These discussions are ongoing. They will be a valuable way of trying to identify ways in which some of the lower value cases can be dealt with.
My noble friend drew the attention of your Lordships’ House to the scheme in Wales under the NHS Redress Act 2006. Clearly that is something we would look at, although I note that it is tied in with a complaints and concerns regime and does not necessarily replace the existing judicial system. Claimants are still free to pursue a claim. I have always thought that it is one of the strengths of devolution that different ways are found in different parts of our United Kingdom to address issues such as this. It is only right that we look at the experience in different parts of the United Kingdom, and if there is something to learn we should be willing to learn it.
I am obliged to refer to government Amendments 26 to 30 and 58 to 67. They are technical in nature. My noble friend Lord McNally has written to all Peers describing their detail, so I do not propose to detain the House further.
We have listened to very strong representations in earlier debates about clinical negligence in the context of perinatal and neonatal cases. We have sought to address it through conditional fee agreements, which are increasingly part of the way in which clinical negligence cases are dealt with, and through the exceptional funding. We are ensuring that there is provision in other cases. As I have indicated, I regret that we have not been able to have a meeting of minds with the noble and learned Lord, Lord Lloyd of Berwick. I will place the Ministry of Justice’s calculations in the Library of your Lordships’ House. When those who wish to look at them have done the calculations and wish to come back to us, we will seek to give them a response. In these circumstances, I ask the noble and learned Lord to consider withdrawing his amendment.
My Lords, I address only my own amendment. It is very limited in scope and is designed to save money. I am very grateful for the support of the noble Lords, Lord Wigley, Lord Newton and Lord Faulks, the noble Baronesses, Lady Mallalieu and Lady Finlay, and other noble Lords. It seems to me that they have demonstrated conclusively that the financial argument in favour of this amendment is irresistible. It is simply not good enough for the Minister to say by way of answer that we must agree to differ on the figures. The figures supporting the case that I have put forward were put before the Government on 2 March. Indeed, they have had similar figures since we were in Committee, but they have not answered these and it is now 7 March.
If the Government are as serious as they keep on saying they are about saving money, they ought to accept this amendment. Even on their own figures, they would save £6.2 million. I wish to test the opinion of the House.
Amendment 14 not moved.
15: Schedule 1, page 125, line 5, at end insert—
“Clinical negligence (No. 2)(1) Civil legal services provided in relation to clinical negligence proceedings.
(2) In this paragraph—
“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);
“clinical negligence proceedings” means proceedings which include a claim for damages in respect of clinical negligence.”
I am very conscious of the late hour so I do not wish to delay your Lordships’ House too much longer. I thank the Minister for his answer but, unfortunately, I am not satisfied with it. I believe that a huge number of disabled people and people in general will be discriminated against. I wish to test the opinion of the House.
Further consideration on Report adjourned until not before 9.35 pm.