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Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, the Motion contains amendments dealing with clinical negligence. We have debated the issue of clinical negligence at length, and I am grateful for the intensity and conviction of those who have spoken in support and those who have challenged the Government during the passage of this Bill. Before I go into the detail of this Motion, I remind noble Lords that we listened to their concerns and brought forward an amendment at Third Reading in this House which specifically addresses their concerns. This amendment puts beyond doubt that legal aid will remain available for babies who suffer brain injury at birth leading to a lifetime of care needs. This was in recognition that there are often difficulties in obtaining funding for these cases through conditional fee agreements due to the extent and expense of the investigations required. Our amendment brings into scope claims where medical negligence causes a brain injury as a result of which the child is severely disabled. It is intended that this will cover cases of medical negligence where the child is at its most vulnerable, during its time in the womb, during the delivery, and immediately afterwards. The House of Commons raised concern that there might be arguments about whether a particular child falls within the scope of this amendment. We believe that the amendment is clear in this regard. It provides for funding where the negligence occurs in the period of time beginning with the point of the mother's pregnancy until eight weeks after birth. In recognition of the fact that premature babies are particularly vulnerable, the government 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. We have also provided that where the negligence occurs beyond the eight-week point, a safety net will remain in the form of the exceptional funding scheme, in those cases where the failure to fund would amount to a breach of the individual's rights under the ECHR. Contrary to the concern expressed in the other House it is right that all other cases should first seek a conditional fee agreement, and where one is not available—for example, due to high disbursement costs—then exceptional funding may be available, taking into account factors such as the complexity of the case and the capacity of the litigant or litigation friend to present their case. The Government's amendment covers the vast majority of clinical negligence children's cases currently funded through legal aid. My noble Friend Lord Cormack has tabled an amendment in lieu of his Lords Amendment 172, which seeks to bring into scope other children's cases involving clinical negligence that occurred when the child was below the age of 16, rather than 18. We believe that this amendment would still bring into scope a whole range of less serious cases which do not involve lengthy and detailed investigations or multiple expert reports, which are caught by government Amendment 216, and which are more suited for funding through a CFA in exactly the same way as for adults. We believe this to be the case whether the child is 18 or 16. The Commons has decided against Lords Amendment 172, and it is my opinion that my noble friend's amendment in lieu will elicit the same response. I urge my noble friend to withdraw his Motion. On Amendment 170, the Government have already made special provision for expert reports in clinical negligence reports to the Jackson provisions in Part 2. This will mean that no one is required to pay upfront for expert reports in clinical negligence cases. Providing for all expert reports would be more costly than the current legal aid arrangements. As I have said previously, at present solicitors have to choose whether to use legal aid or a CFA to fund the case. Only 18 per cent of cases where the funding method is known use legal aid. The amendment would open up legal aid for all of those cases which are currently funded by way of CFA. Lawyers would be able to claim their success fee while using legal aid to fund expert fees, and the legal aid fund would carry all of the solicitor's or insurer's risk. This could result in a significant expansion of the legal aid scheme and significant costs. We do not consider this a fair outcome for the taxpayer, who should not be required to pay where cases are already taken forward and paid for by alternative means. I beg to move. Motion H1 (as an amendment to Motion H) Moved by