Peers from all parties were this week united in their opposition to the government’s planned legal aid reforms, but justice minister Lord McNally told the House of Lords he is ‘not waving a white handkerchief’ or making concessions.
During the third day debating the Legal Aid, Sentencing and Punishment of Offenders Bill in committee, peers sought amendments that would retain legal aid eligibility in social welfare cases, private law cases affecting children and to fund expert reports in clinical negligence cases.
On his amendment regarding medical reports, crossbench peer Lord Lloyd of Berwick said retaining legal aid for reports in clinical negligence cases would add £6m to the legal aid bill, but save the taxpayer at least three times that amount.
Supporting the amendment, Labour’s Lady Turner of Camden said the government’s intention that cases should be brought on a conditional fee arrangement was flawed as the cost of reports to establish whether there was a case would be prohibitively high for most potential litigants.
Plaid Cymru peer Lord Wigley put the case for the amendment strongly. ‘Many people involved in cases arising from clinical negligence by a public authority are among the most destitute. These cases will frequently involve parents or other family members bringing cases against public authorities as a result of traumatic injuries sustained by their children or other relatives. Considering the inequality of arms that inevitably arises, having access to expert reports is vital.
‘What is perhaps most distressing in cases centering on charges of clinical negligence is that individuals will come up against the state, with its teams of lawyers, during proceedings. Never is an inequality of arms more blatant than in those situations.’
Also from the Labour bench Lord Beecham, arguing that clinical negligence should remain in scope, said: ‘We come back to the position where it makes economic and financial sense, as well as moral and social sense, to make sure that legal aid for clinical negligence is back in scope, full stop.’
During the debate on social welfare law, Labour’s former legal aid minister Lord Bach described the bill’s removal of funding in this areas as ‘unconstitutional’ in that it removes access to justice for a large number of citizens. ‘It is immoral because the state should not try to save a fairly small amount of money by targeting the poor and the disabled by removing their legal rights, and it is financially crazy because the savings will be non-existent,’ he said.
Bach added: ‘As benefits mistakes are not remedied, the problems will grow and the cost to the state will explode.’
Peers criticised the bill’s provision to allow the Lord Chancellor to remove further areas of law from eligibility by means of delegated legislation without proper parliamentary debate. They also called for a power to bring areas of law back into scope.
Liberal Democrat peer Lord Phillips of Sudbury said there had been a ‘unanimity of view’ during the debate that the exclusions from scope ‘are going to cut so deep that the consequences will be social and political unless they are reversed speedily’.
Responding for the government, McNally asked the house to ‘acknowledge the economic realities behind the difficult decisions’ that the government has been forced to take.
He said: ‘In developing our proposals we have considered carefully a number of factors, including the importance and complexity of the issue, the litigant's ability to present their own case, the availability of alternative sources of funding and the availability of other routes to resolution.
‘We have used these factors to prioritise funding so that civil legal services will be available in the highest priority cases, for example, where people's life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or for domestic violence remedies, or where children may be taken into care,’ he said.
McNally acknowledged the expertise of many of the peers who had contributed to the debate, saying the government would consider the points made before the report stage. But he said: ‘I am not waving a white handkerchief and making specific concessions.’
The bill will be back in committee on Wednesday when the House of Lords will consider, among other things, amendments to the domestic violence provisions.
No comments yet