Oh, my Lord!

Lord Peter Hain’s maverick act in the House of Lords yesterday, if unchecked, will represent a new low point for the rule of law in this country.

Despite the existence of an interim court injunction forbidding the disclosure in the press of the identities of the parties to pending litigation, Lord Hain got to his feet under the gaze of the television cameras to declare it his “duty” to name the central figure as Philip Green.

He did so under the cloak of parliamentary privilege which ancient concept still has an important role in our democracy.  It enables those involved in making our legislation to say things in the course of debate which might otherwise expose them to claims of defamation, criminal proceedings and – most pertinent in this case – contempt of court.

It's a privilege that needs to be exercised very carefully.  His Lordship doesn’t seem to have understood that.

I don’t know, any more than the vast majority of people so far, all the circumstances of Philip Green’s lengthy and expensive efforts to suppress the Daily Telegraph’s report – still less the merits of the underlying allegations.  It may be that he has acted unlawfully and that it is, or rather will be, in the public interest for all the allegations to be known and followed as the substantive dispute is resolved in court.

It may be that there is a force for change in relation to non-disclosure agreements but whether reform is needed, it hasn’t happened yet and one man amongst hundreds has no individual power to legislate.

For the moment it is – or was – a matter for the courts.  Three senior judges doing their best, and probably getting it right, decided that Philip Green’s name should not be splashed all over the media.

What Lord Hain appears to have done is to say “to hell with that – I know better than these judges and everybody else and I am going to do what I believe is right”.

Well, let’s be absolutely clear Lord Hain, you are wrong. The proud little speech yesterday was a contempt of court.  It won’t be actionable because it happened within the Palace of Westminster.  Outside on the street it would have been a very different story.

It’s an appalling example of a senior figure abusing his rights and privileges and taking the law into his own hands. 

I hope the Committee on Standards and Privileges will see fit to act on this and suspend if not expel Lord Hain from the house.  Something like this is “one strike and out”.  He clearly doesn’t understand the extent of the trust that has been placed in him.

Stable doors and horses, some will say but if this is allowed to pass then next it will be some matter of national security with even worse consequences for our society. It’s seven years since similar actions by MP John Hemming which (rightly) drew a good deal of criticism.

In the meantime, anybody thinking of looking to enforce their legal rights through the proper channels in a civilized and law abiding fashion must now factor in the risk that some loose cannon in Parliament may sweep it all aside because he knows best.

Access to justice is increasingly a privilege of the wealthy and that’s wrong. It doesn’t follow that in front of the judges, money buys ‘justice’. They apply the law as it should be, objectively and independently. What’s needed is a return to access to justice for all, but by lawful means.

Attacking the symptoms

As I sat at the kitchen table with the day’s first mug of tea very early this morning, two things leapt out at me from my social media.

First, I saw a post by a client and friend of a lovely photograph which heralded the news that her husband had finally lost his long battle.  I can be sure that she will have nothing but admiration and thanks for the neurosurgeons and others at one of our region’s leading hospitals who tried so hard over many months to cure him.

I reflected also upon my own personal (and thankfully non-critical) experience of the NHS and the wonderful people I have met.

Almost the next thing I saw, ironically, was the headline on a BBC news page:

              “Curb rising NHS negligence pay-outs..”.

The backdrop to the story hasn’t changed.  It’s the fact that the NHS is having to part with eye-watering amounts of money to compensate the victims of clinical negligence.

That's compensate - not punish, not criticise. 

It has been on the agenda for years.  In the past these outcries have led with an attack on the victims and their lawyers.  The apparent desire has been to silence the critics, rather than examining the problem.  See for example Sick, The bitterest pill, and Legal highs.

There are signs that what I have previously described as the culture of cock-up, cover-up and clam-up has improved.  Notably, there has been widespread recognition that the dysfunctional National Health Service Litigation Authority (NHSLA) was a massive part of the problem. 

I have not had any personal experience of it myself, but there are reports of softening in the attritional approach to claims resolution.

The degree of transparency is always difficult to judge but there’s no denying that the service has issues. The main one is that it is starved of money at one end and haemorrhaging it at the other.

You may as well fill a sack with a hole in the bottom.  What somebody needs to do is fix the hole.

Remember, remember – every single payment is the product of a proven or admitted mistake.

Of course, we are always focused on the cost of it.  For too long, commentators – and influencers – have obsessed with the price of it and in particular the legal costs.  One hopes that the culture of defend, deny and delay has been so comprehensively exposed as to demonstrate why that’s the fault of neither victims nor their lawyers.

Now it seems that the message is simply one of affordability.  The article quotes the letter as saying:-

“We fully accept that there must be reasonable compensation for patients harmed through clinical negligence but this needs to be balanced against society’s ability to pay.”

This is chilling from the point of view of victims and those of us who think we live in a society that should give priority to the needs of its vulnerable members.

Compensation for personal injuries, whether as a result of clinical negligence or otherwise, is not as many people seem to believe some sort of bingo win.

It’s right that there’s an element of injury awards or settlements that compensates for pain, suffering and loss of amenity (PSLA) – and why not – but many people would be surprised what it is that really makes up some of the bigger awards about which we hear and read.

The reality is that those cases in which millions of pounds are awarded or voluntarily paid are built on the need of the innocent victim for many years of medical and nursing care, special accommodation etc necessary just for them to live the rest of their terribly impaired life.

What do the economists here propose that we do with the children and others who have been horribly brain-damaged or rendered tetraplegic, often at birth? 

Smile sympathetically and tell them, or their carers, that we are dreadfully sorry but really, we can’t afford to do anything to help them?

How lawless and helpless are we going to become in this country?

What is so ridiculous here is that the problem should be soluble.  As the wailers proclaim, we are spending money paying for cock-ups that should be spent preventing them.

That could change, just by re-directing the spending.  Invest in a proper service and it will be self-funding.  Arguably, this is just (yes, I know) a matter of cash flow.

Before that, though, it’s still a matter of culture. As anyone who has spent any time looking at this objectively knows, that headline should have read:-

                                           “Curb rising NHS negligence”

We have to attack the problem, not the symptoms.