Report (2nd Day)
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Wallace of Tankerness (Advocate General for Scotland; Liberal Democrat)
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.