LASPO concessions a ‘smokescreen’, says Labour
The shadow justice secretary has dismissed the government’s partial U-turns on domestic violence and clinical negligence as a ‘smokescreen’ to avert losing votes on the reforms in the House of Lords. The government announced yesterday that it had tabled amendments to the Legal Aid Sentencing and Punishment of Offenders Bill retaining legal aid for clinical negligence obstetric cases and adopting a wider definition of domestic violence.
The concessions came less than a week before the bill begins its report stage in the House of Lords.
Sadiq Khan MP said the government’s ‘spin tactics’ showed it is ‘more interested in dampening down the prospect of yet more damaging parliamentary defeats than it is in having a fair justice system to protect the most vulnerable’.
He said: ‘Concessions on the availability of legal aid in cases of domestic violence are a smokescreen.’ The real issue, he said, is what evidence is accepted as proof of domestic abuse.
Under the proposals in the bill, before a party is eligible for legal aid in private family law cases, they must provide evidence of domestic violence showing they have taken civil or criminal proceedings against the alleged perpetrators.
Critics say that this evidential requirement is too restrictive and will exclude many victims from receiving legal aid. They have urged the government to widen the evidential requirements to, for example, include evidence from GPs.
Khan said: ‘Even with the government's changes many genuine victims of abuse will not be helped, despite there being evidence of abuse from reputable sources.’
David Allison, chair of family lawyers group Resolution, welcomed the government’s acceptance of the definition of domestic violence used by the Association of Chief Police Officers, but echoed Khan’s concern about the evidential criteria. Allison said the government should think again about the impact of its proposals.
On the clinical negligence amendment, which would retain automatic legal aid in cases concerning severely injured babies, Khan said: ‘We will need to consider the proposed amendments in detail, but on the face of it, they do not address our concerns or those of victims’ groups.
‘Expert reports in clinical negligence are very expensive and it is our view that all incidents of clinical negligence should be covered by legal aid,’ he said.
The chief executive of campaign group Action against Medical Accidents, Peter Walsh, said the concession is ‘a step in the right direction’ but repeated his call for legal aid to be available for all clinical negligence claims. He said: 'How can it be that a child who suffers a catastrophic injury due to clinical negligence at the age of two, as a toddler, or even a teenager is less deserving of access to justice than one who suffers their injury at childbirth?'
Walsh said: ‘The government has bowed to mounting pressure in an attempt to stave off rebellion by Liberal Democrat and Conservative peers and a likely defeat in a vote in the Lords next week on an amendment to keep all clinical negligence cases in scope for legal aid.’
He said the government’s policy is ‘incoherent’ and will damage access to justice unless greater changes are made. ‘Given that they admit they got it wrong with regard to birth cases it would now be completely irrational not to allow legal aid to continue for all people harmed as a result of clinical negligence,’ he said.
Comments
Legal Aid Concessions a JOKE!
The scrapping of legal aid in family matters is wrong. There's no doubt about that. The family Solicitors I know have been doing excellent work at very low legal aid rates for years - now where are those family cases going to go? (and for that matter, what are the family Solicitors going to do?)
Obstetrics cases affecting babies make up less than 1% of clinical negligence claims. So what about the other 99% of clinical negligence victims? If the victim can't afford approx. £3000.00 up front to fund the investigation of their claim, they cannot have access to justice. That's just not fair.
Eighty two percent
Eighty two percent of clinical negligence cases are funded by means other than legal aid, the vast majority of which are funded by CFAs. You can apply for ATE insurance based solely on medical records with low/no application fees and the premiums are deferred and self-insured so there is nothing to pay up front, nothing to pay if you lose and disbursement funding is available. According to recent MoJ/NHSLA figures the market for clinical negligence claimant costs is c. £197 million and will go higher. Even stripping out success fees and ATE for adverse costs the market size will still be be £130 million and growing. In the context of such a significant market to suggest there will be no access to justice without legal aid on clinical negligence is crazy, people will do it although at lower margins than before.
Legal aid does not ensure access to justice...
Andrew Lansley MP speech in Parliament; 5 June 2006: Hansard col 40
"Legal aid does not ensure access to justice for deserving cases, as most people are not eligible. Instead, it provides access to lawyers for an eligible minority. Legal aid lacks independence. Funding is granted on the advice of the applicant’s lawyer, so there is a clear conflict of interest that may encourage over-optimistic advice, to put it kindly, or speculative litigation, putting it less kindly. Legal aid lacks fairness. Successful defendants cannot recover legal costs. Legal aid puts the claimant in a no-lose position and the health service defendant in a no-win position. It may be cheaper to settle a claim regardless of merit, to avoid irrecoverable legal costs—a practice known as legal aid blackmail.
The Secretary of State referred to the legal costs that the NHS has incurred, and of course the structure of legal aid is one of the reasons why the legal costs that the NHS has had to meet have been so great. Legal aid lacks accountability. Funding decisions involving public money are privileged and confidential, and are not subject to public scrutiny. As a Member of Parliament, I have sought to question some of the decisions made by the Legal Services Commission about the people to whom they grant legal aid. Frankly, that is an impenetrable question. The fact that it has met and made a decision is regarded by the LSC as justification enough.
Most clinical negligence cases are legally aided, but the great majority of households do not qualify for legal aid. Is it the case that clinical negligence harms only people eligible for legal aid? Of course not. It is not a matter of cases not being brought because they lack merit; they are not brought because there is no legal aid available. The record of legally aided claims involving health care is dismal, as I said. In some instances, that has promoted unsubstantiated health claims and scares based on junk science, threatening the health of the nation’s children. Too often, lawyers are the only beneficiaries of publicly funded legal action. Scarce resources are diverted from patient care to lawyers’ fees, all in the name of justice and all paid for by the taxpayer.
The solution to the problem of clinical negligence litigation lies in the realm of funding. Legal aid has brought relief to many people, but it is a popular misconception to equate legal aid with access to justice. Access to justice is not best delivered by the legal aid system..."