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Baroness Anelay of St Johns: The noble and learned Lord, Lord Donaldson, has instigated a very interesting debate. I am much struck by his argument that flexibility may be needed to call upon those who have great experience, and to do so at fairly short notice. However, there is a question that I must put to the Minister. If the Government feel that they cannot accede to the request of the noble and learned Lord—if so, we would be interested to hear their reason—can they give an assurance that sufficient numbers of the judiciary will be able to perform the necessary tasks? I note that there was recently a statutory instrument from the Lord Chancellor's Department to increase the number of judges by two. In response to my noble friend Lady Seccombe, the reason given concerned the huge

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increase in judicial review appeals regarding asylum. One can see greater volume arising in that way, so there may need to be not only greater flexibility but more full-time appointments. If the Minister cannot accede to the noble and learned Lord's request, one hopes that she will be able to assure the House that there will be sufficient numbers of the judiciary to perform the appropriate work.

I end by wishing the noble Lord, Lord Borrie, a happy 72nd birthday this month—proving the noble and learned Lord's point that 70 is no bar to effective service.

Lord Goodhart: My Lords, I have some sympathy with the amendment. One of the greatest 20th-century judges in the common law world, Oliver Wendell Holmes, was not appointed to the American Supreme Court until he was in his 60s. He continued to sit with no loss of skill until he was past 90. So there are cases where persons of advanced age can continue to add to the court.

I take the point of the noble Lord, Lord Borrie, about the International Convention on Human Rights, but it has not been suggested that the present system—by which former judges can be called upon to sit between their retirement age and 75—contravenes the convention. I imagine that is because the selection of panel members is in the hands of other judges, not of the Lord Chancellor or the Lord Chancellor's Department.

Baroness Scotland of Asthal: My Lords, this has been an enlightening debate. I hope that your Lordships will not think that I am burdened by youth when I comment that having witnessed the performance of the noble Lord, Lord Renton, this evening, anyone who claims that one reaches one's prime before the age of 92, 93 or 94 might be much mistaken.

I understand entirely the purpose of the amendment so eloquently moved by the noble and learned Lord, who is right that the facility to invite skilled judges to sit when the need arises was much taken advantage of before 1993. I am not surprised by the noble and learned Lord's comments in relation to the acceptance by the current Master of the Rolls that it might be a tempting consideration.

I assure the noble Baroness that there are sufficient judges to meet current needs—and the Lord Chancellor, as already demonstrated by a recent order, will take steps to enhance their number if further needs are identified. The Court of Appeal has made significant improvements in minimising delay and the momentum is being maintained through continued skilled management.

I recognise the noble and learned Lord's concerns in seeking to exempt former Lords of Appeal and Court of Appeal judges. I am also conscious that in passing the 1993 Act, Parliament sought to strike a delicate balance in sensitive constitutional territory. Earlier decisions may need reappraisal in light of developments. Your Lordships will know that a European Council directive establishing a general framework for equal treatment in

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employment and occupation in terms that, it is believed, encompass the judiciary includes provisions to prevent discrimination on the basis of age. Domestic implementation is required by 2006 and careful consideration will be given to how the age provisions are to be implemented. The continuing relevance of the retirement regime established by the 1993 Act will form part of that consideration.

I believe therefore that it will be preferable to address age-related restrictions as a single exercise rather than through piecemeal changes to existing arrangements. Of course I bear in mind the historical references made by my noble friend Lord Borrie; the importance of preservation of independence and the need to give certainty. Those issues will have to be taken into account when these matters are reconsidered.

There is no way to diminish the qualities that continue to be displayed in abundance, as on this occasion, by the noble and learned Lord, Lord Donaldson, and other noble Lords who left the 75-year mark behind a little time ago. I endorse everything the noble Baroness, Lady Anelay, said about the performance of my noble friend Lord Borrie. He is a mere youth and there is much to expect from him, as indeed there is from the noble Baroness, Lady Seccombe, whom I see in her place. I had the great pleasure of telling her earlier how surprised I was when she said that she is now a retired magistrate. I rightly expressed my disbelief that that could be so.

I hope that the noble and learned Lord will withdraw his amendment. He has had to wait a long time. This issue should and could be looked at again before 2006 when we come to consider the implementation of the directive.

7.45 p.m.

Lord Donaldson of Lymington: Once again kind flattery by the Minister gets me nowhere. In 1993 ageism was on the ascendant. The position is entirely changed now. It is ridiculous to say, "Oh well, this is piecemeal. We have to look at it all in the light of a European directive". What does it have to do with Europe? It is our judicial system. The Master of the Rolls says that he wants to do this and I have no reason to doubt him. I do not want anyone to be misled by the Minister's perfectly bona fide assurances that orders will be brought forward—as they have been recently—to increase the number of judges.

I have lived with this situation for 10 years. What happens is that under extreme pressure the Lord Chancellor brings forward an order for the number of judges—I forget what it is called. That looks fine. The trouble is that it is subject to the Treasury's consent and the Treasury does not give consent, so it is purely a paper transaction. The matter should have been dealt with straightaway. Whether there will be sufficient support at a later stage to divide the House I do not know; I do not command any battalions, so I have to leave it to others. But it is a great pity.

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I am 82 now. I hope to live until 2006, but the matter should be dealt with long before then in the interests of doing things for a mass of people who will probably have different objectives. This is a unique body where it is left to independent people to decide whether they should continue giving service to the state. Nowhere else is that true. I beg leave to withdraw the amendment. I hope that before the Bill leaves this House something can be done about the matter.

Amendment, by leave, withdrawn.

Schedule 6 agreed to.

Schedule 7 [Repeals]:

Lord Hunt of Wirral moved Amendment No. 150:

    Page 107, line 34, at end insert—

    "Law Reform (Personal Injuries) Act 1948 (c. 41)Section 2(4)."

The noble Lord said: In view of the limited time I have in which to move the amendment, I merely point out that representations have been received from a range of bodies, especially those in the National Health Service, to the effect that the old 1948 provision should be removed; that is, the provision that prevents the courts from taking into account the provision of future care by the NHS. Under Section 2(4) of the Law Reform (Personal Injuries) Act 1948, no regard can be given in determining the reasonableness of any claimed future care costs and expenses or in reducing those costs and expenses by taking advantage of facilities for providing future care services, which may be available under the National Health Service. That produces a ridiculous situation, under which the NHS—or the Medical Defence Union or the Medical Protection Society—are compelled to make substantial awards for setting up in effect private care at home on a 24-hour basis for one individual for the rest of his or her life when there is evidence that it is not in the best interests of the claimant to have what is virtually a private hospital built around them. The NHS must allow the claimant to receive what may be better treatment from the NHS when all the money has been spent. The person can then claim that better treatment free of charge on the NHS.

At the moment, the courts are precluded by this provision from balancing the cost of private treatment against the cost of public treatment even where evidence is presented to the court that the claimant, in their own best interest, should receive treatment under the NHS. I have in mind my own experience of cases in which isolating the claimant in a 24-hour private hospital that is built around their home is probably the last thing that should happen, particularly with regard to their rehabilitation. They should be among other people with similar injuries, who are often receiving better care. The courts cannot currently review the reasonableness of future private expenses or the possibility that the extra costs can be minimised or avoided by taking advantage of facilities that are available in the NHS.

How serious is that? The experience in the NHS in dealing with claims is that future care costs are the largest single item in damages awarded in large claims. About two-thirds of the total liability for clinical negligence resides in a small number of large claims

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where much of the award payments are channelled into the private sector for the patient's long-term care. That means that, for patients who suffered their injuries in NHS hospitals, a large amount of money is transferred out of the NHS and into the private sector for the benefit of a very small number of people.

I understand that the Medical Defence Union believes that about 1,000 million leaves the NHS—I refer to the total NHS liabilities, which have been estimated at 5.25 billion—in order to set up those facilities. It estimates that 1,000 million could be redirected into NHS care if patients who needed long-term care were guaranteed that care under the NHS rather than the NHS having to pay damages that reflect the cost of private provision of long-term care.

I hope that the Minister will take time between now and Report to consider that matter. It is strongly felt by many doctors, dentists, nurses, consultants and people in the NHS. I have not discussed the amount of money coming from insurance premiums to pay for that care. With regard merely to the NHS, we should consider how much better that money could be spent within the NHS by setting up even better facilities for everyone. I beg to move.

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