The Daily Mirror ran a story yesterday (24 November) saying that Secretary of State for Justice Kenneth Clarke had decided to allow legal aid in clinical negligence cases. LAG checked with the Ministry of Justice (MoJ) and it confirmed that no statement on this has been made by the department and that the 'measures in the bill still stand'. LAG understands that the Mirror story is based on a source at the MoJ. Maybe a minister or an official has spoken out of turn?
It does seem likely to LAG that a concession on clinical negligence and legal aid will be made at some point. Even before the bill was finalised there had been talk of an exception being made for clinical negligence cases. When Labour introduced the Access to Justice Act (AJA) 1999, the then Lord Chancellor, Derry Irvine, looked at doing away with legal aid for clinical negligence cases, but decided that this would lead to the more difficult cases not being pursued, as lawyers would not want to act for claimants in such cases on conditional fee agreements. LAG believes that Derry
Since the AJA came into force over ten years ago, it has been the more difficult cases that have stayed in the legal aid scheme. This has worked in the interests of justice and the public. Legal aid funding is the only way in which many victims of medical accidents or negligence can obtain justice. At the very least the government ought to look at legal aid funding for investigation and gathering of medical evidence in clinical negligence cases. Much of the cost of such work could be recouped by the legal aid fund in successful cases. It would also ensure that large drug corporations and medical professionals who have been negligent are held to account. It is in the public interest that this happens, so mistakes are not repeated.
It is in no doubt that the government took a pasting in the House of Lords' debate on Monday this week. Lord McNally, the MoJ minister, looked rather hapless as he took a barrage of criticism from all sides over the government’s legal aid proposals. To get the Legal Aid Bill through, the government is up against a tight deadline. The parliamentary session ends in April 2012 so the House of Lords does have the option of trying to talk the bill out if it wishes to. This makes it more likely that concessions will be made in the committee stage in the House of Lords which is due to start sometime next month.
The government will not be pleased that news of the concession on clinical negligence has leaked out. LAG suspects that it would have wanted to time the announcement for later in the process, in order to maximise its impact to shore up support for the rest of the bill among its own backbenchers. It is now stuck with a difficult dilemma - of either sticking to the line that the bill is not going to be changed, and looking foolish when it does so, or admitting there was a leak and announcing the concession. The problem then is that attention shifts to who leaked the information?