Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Wallace of Tankerness Excerpts

Monday 5th March 2012 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, we welcome this opportunity to consider the undoubted contribution that experts make by giving evidence in our courts. Some examples have been given in the course of this debate. Before I address specific points, let me say that our basic position is that the amendment moved by the noble Lord, Lord Beecham, is inappropriate and possibly unworkable. It seeks to impose on the Lord Chancellor a duty to review the quality and accessibility of expert evidence.

By definition, expert witnesses are highly qualified. They are experienced professionals in specific technical fields. In respect of the quality of their evidence, experts are subject to the standards required by their respective professional membership bodies. From a regulatory perspective, the relationship between a professional body and an individual expert is not one on which the Lord Chancellor could or should encroach.

It is not within the Lord Chancellor’s remit to assess and determine the quality of the advice provided by any given expert witness, nor should it be. We have heard in contributions to the debate not only that there are far too many experts in some cases but that they can sometimes be of variable quality. It is very invidious to ask that the Lord Chancellor should in some way be the judge of that. A huge range of expert advice is delivered in civil cases. More than 50 types of expert are covered by the current fee scheme for funding advice by experts. I agree with the view expressed by my noble friend Lord Faulks, who said that these matters are very much outwith the province of the Lord Chancellor.

The financial implications of creating a monitoring and evaluation framework, as well as an independent quality standard, that covers all these various disciplines, and the administrative resource required to make such a system work, mean that it really is not feasible. Irrespective of the financial implications, as my noble friend Lord McNally indicated when this matter was debated in Committee, we do not see how such a system could be viable. As was brought home very clearly by the contribution of the noble and learned Baroness, Lady Butler-Sloss, disputes over the accuracy and quality of expert evidence can themselves be the subject of extensive dispute and litigation. The examples that she gave, from her vast experience, of brittle bone injuries and shaken baby cases showed that you sometimes get extremes of expert evidence. I am not sure how one could put the Lord Chancellor in the position of having to make a judgment on its quality. He is not the appropriate arbiter of that kind of expert evidence. Equally, to impose the kind of duty anticipated by this amendment ignores the practical realities of expert provision. By definition, they are experts in their fields and can sometimes be relatively few in number. Their geographical distribution is bound to vary over time. With the best will in the world, I do not see how the Lord Chancellor could or should control or influence that distribution to ensure accessibility.

Important points have been made through the experience brought to bear on this debate by noble Lords who are perhaps trustees of organisations that have provided evidence, as well as through their practical experience, either in the judiciary or at the Bar. A lot of these come back to funding—a point made the noble Lord, Lord Beecham, when he moved the amendment. They are perhaps more appropriate to the issues around the funding orders, which were introduced on 3 October last year. Perhaps I may say something about these. They are not particularly germane to this amendment but they are germane to the debate that we have had. It was by way of these funding orders that the expert witness fees were codified for the first time. Historically, though guideline rates were published by the Legal Services Commission, rates of remuneration were effectively determined by the courts. This caused a range of issues for the LSC, not least spending control and data collection. The codification of rates is intended to address this issue.

The noble Lord, Lord Beecham, and another noble Lord mentioned the difference between the codified rates in London and rates outside London. The codified rates were based on the benchmark or guidance rates applied by LSC caseworkers when assessing expert witness services as part of a solicitor’s final bill, subject to a reduction of 10 per cent in line with the 10 per cent reduction that was being imposed on legal aid solicitors’ fees. The benchmark rates were developed by experienced civil bill assessment staff at the LSC and were based on their experience of typical hourly rates charged by experts in their respective geographical regions. The rates reflect the LSC’s experience that there is a greater supply of experts in London, which allows more competitive rates to be paid. The benchmark rates have been applied by the LSC for some time and there are only limited anecdotal reports of problems with access to experts. I assure your Lordships that the Ministry of Justice is working with the Legal Services Commission and stakeholders to monitor the effect of the fee levels and to gather further data to inform the Government’s longer-term plans to put in place a scheme of fixed and graduated fees for experts.

The noble Earl, Lord Listowel, and the noble Baroness, Lady Howarth of Breckland, mentioned the Family Justice Review. The recommendations that have come out of that review are being looked at and will help to inform the development of a more detailed payments scheme for experts in the future. I will look at what the noble Earl said, as he may have made one or two further specific points. If I can reply to those points, I will certainly write to him.

I understand where many of the concerns are coming from in principle. However, as my noble friend Lord Faulks indicated, much of this matter is in the hands of the courts and some things are happening in this regard. However desirable the amendment might appear, it would be almost unworkable in practice and, indeed, would put the Lord Chancellor in an invidious position in trying to make quality assessments, which would not be appropriate to his role. Accordingly, I urge the noble Lord to withdraw the amendment.