Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Tuesday 10th January 2012 Lords Chamber

Moved by

[Lord Beecham]

5: Clause 1, page 2, line 4, at end insert—
“( ) The Lord Chancellor must review the accessibility and quality of expert advice that is available for civil legal proceedings and ensure that this is maintained or improved following the commencement of this Part.”

[Lord Beecham]

My Lords, this amendment amplifies the definition in Clause 1 in respect of the legal aid and advice that the clause requires the Lord Chancellor to secure. Among other things, the clause calls on the Lord Chancellor to,

“do anything which is calculated to facilitate, or is incidental or conducive to, the carrying out of the Lord Chancellor’s functions under this Part”.

The purpose of this amendment is to secure the provision of expert evidence where that is needed. The amendment is not intended to be a belated addition to the Christmas stockings of expert witnesses. It is perfectly reasonable for the Lord Chancellor to seek to secure economy in the provision of such services, but that must not be at the expense of ensuring that in appropriate cases there is available to parties to disputes—and indeed to the court—expert evidence of a kind that will assist the court in coming to a decision.

Of course, there are many cases in which expert witnesses can be helpful. They will often be medical witnesses but they may be from other professions; they could be scientists, engineers or surveyors. Therefore, there is a range of professional bodies whose members are called upon from time to time to give evidence in the course of civil litigation—and, for that matter, in some criminal cases.

I want to refer particularly to one group of expert witnesses: the Consortium of Expert Witnesses to the Family Courts, which has submitted interesting evidence to the Justice Committee in the House of Commons and also briefed Members of your Lordships’ House. Some 500 professionals are members of that consortium. They have a wide range of backgrounds—from paediatricians to medical and surgical specialists, forensic physicians, psychiatrists, psychotherapists, clinical psychologists, neuropsychologists, educational psychologists and the like. They have given, and give, evidence in a range of cases—usually but not exclusively involving children—in the domestic courts. That evidence will sometimes deal with the physical evidence of non-accidental injury and will also perhaps involve evidence about the impact of situations within the family on the children’s psychological and emotional well-being; for example, where there may have been domestic violence, where a parent may have engaged in substance abuse, where there may have been criminality, or where other life events may have impacted severely on the domestic situation.

The organisation gave evidence to the Justice Select Committee and expressed its concerns about the provisions currently obtaining in respect of the financing of expert witness evidence. Separately from this Bill, the Government have reduced the fees payable to expert witnesses by 10 per cent. In London—it might be thought somewhat paradoxically—fees are now one-third less than those for expert witnesses outside the capital. One might have thought that, with the oncosts in London generally speaking being higher, at least parity would be maintained, but that has apparently not been the case.

The consequence appears likely to be a reduction in the number of expert witnesses who would hold themselves available for cases where they would be publicly funded. It is estimated that 25 per cent of members overall of this group of 500 witnesses would not continue to give evidence in such cases and that that figure would rise to 50 per cent in London. That could seriously impede access to justice and the assistance that would be available to the courts in determining disputes. As I have said, it is not any part of the purpose of this amendment to defend the financial interests of a particular group of experts, and it is not simply a question of fee levels. It is certainly the case that a more efficient use of expert witnesses could save the public purse and perhaps the time of the courts.

The Justice Select Committee heard differing views on the use of experts. It called, in particular, for better case management by judges, with which the consortium agrees. It believes that experts could be jointly inspected so that there would be only one expert in a case, rather than two or perhaps even more; that there could be pre-hearing meetings involving the parties and the experts, so that the ground might be cleared more efficiently; and that the instructions given to experts could be better managed, with more concise and reasoned questions. It points out that it is not unusual to have sometimes 50 or more rather repetitious questions put to experts in a particular case, which is time-consuming and, therefore, necessarily expensive.

The point is also made—it should be said that this is not quite within the purview of the Bill but it reflects a problem which is causing difficulties to experts and thereby, ultimately, to the justice system—that at the moment payment is made through instructing solicitors. As a member of that profession, I am sorry to say that the profession does not have a good record in paying expert witnesses on time or, sometimes, at all. The suggestion made by the consortium is that payments should be made direct by the Legal Services Commission, which is to be absorbed within the department. Presumably, a successor body could have that same function.

--- Later in debate ---

[Lord McNally]

I do not think that I can give that assurance. The more that this goes on, the more that one can see why the Government are reluctant to accept an amendment that would impose a kind of impossibilism on the Lord Chancellor. We are working our way carefully with the LSC to a system that we think reflects the position. I hear what the noble Baroness is saying about the availability of expert witnesses. This is not the conclusion to which my right honourable and learned friend the Lord Chancellor has come; he thinks that this structure will provide the necessary experts. The more that we hear these examples given, the more I believe that the idea that legal aid or public funds can fund the whole range of expertise that the noble Baroness was suggesting is dangerous and one that I cannot possibly support from the Dispatch Box. I think that we will see some of the worst-case scenarios but we have confidence that the system we are setting up will carry on some of the procedures and reforms set in place by the previous Administration, and that it reflects an effective way of using public money. Therefore, accordingly, I ask the noble Lord to withdraw the amendment.

[Lord Beecham]

My Lords, I am grateful to noble Lords who have spoken in this debate. Several noble and learned Lords have been very sympathetic to the amendment; I am particularly grateful to my noble friend Lady Kennedy and the noble and learned Lords, Lord Morris and Lord Woolf. I am also grateful to the noble Lord, Lord Walton, whom it was my pleasure to instruct from time to time as an expert witness over many years, paying his very moderate and modest fees for his expert services.

I find the Minister’s response disappointing, to put it mildly. In answer to my noble friend Lord Howarth, I should say that a body to advise the Lord Chancellor in the exercise of the functions proposed by the amendment would be the right approach. However, the real issue here is accessibility, which depends on there being sufficient witnesses who are ready and willing to give evidence to assist parties and the courts. There is a clear concern about that, which is magnified by the issue of fees. The Minister rather airily dismissed the question of the availability of witnesses but did not address the point that I raised about the National Health Service finding difficulties with the proposed arrangements. My noble friend Lord Bach has handed me a letter which he has just received from the chief executive of the Central and North West London NHS Foundation Trust. The chief executive says that she writes,

“on a matter of some concern regarding the fees paid to expert witnesses … I have been approached by clinicians in my Trust who undertake expert witness work … I am informed that the fees payable for such work have recently been reduced to a rate (of £90 per hour) which is causing some concern in my … service. As the NHS, we are required to pay consultant medical staff at the national rate and these are not compatible with the rates set by the Legal Services Commission. Our staff are highly expert and it would be a great loss to the family courts if we were unable to release them for such expert witness work in the future”.

That is clear evidence of the kind of problem that we will see and which will presumably grow over time.

The noble Lord raised the issue of London having more people, and so on. However, a London expert giving evidence somewhere else, as many of them will have to do, will presumably be paid at the London rate, whereas an expert in a provincial city will presumably be paid at a lower rate. It seems incongruous to me.

I hope that the Government will look again at this and perhaps answer—if not on this occasion, then in writing—a question which was put by, I think, the noble Lord, Lord Clinton-Davis. What discussions have taken place with the consortium to which I referred, and were there any positive responses? In particular, if a third meeting was promised, why did it not take place? At this stage, however, I will not press the amendment, but beg leave to withdraw it.

Amendment 5 withdrawn.