Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Woolf Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord Walton of Detchant]

My Lords, I had not intended to speak on this issue, except to give brief support to the amendment that has been tabled by the noble Lord, Lord Beecham, which he expounded so very clearly. My own personal experience of giving expert witness in neurological cases over many years, not for a long time but many years ago, has led me to give warm support to this proposal. It is fair to say that we heard comments a moment ago about expert witnesses in the field of paediatric neurology. This is an extremely difficult and sensitive area, particularly in cases of alleged child abuse when views have been taken by different experts on very good scientific evidence who have come to totally opposing opinions about the nature of the problem.

On the other hand, looking back on personal experiences, I have to say that the mechanism that I was familiar with many years ago has not been explored sufficiently. When I was involved in giving expert evidence in cases of head injury in miners, I remember receiving letters jointly signed by the then National Coal Board and the National Union of Mineworkers, saying that they would accept my report as being binding on both parties. That kind of agreement in advance of court hearings in cases of alleged negligence or industrial injury could be used very much more readily.

[Lord Woolf]

My Lords, may I say a few words in support of this proposal? Expert evidence is an area in which the courts have had considerable difficulties in the past. However, following on from what the noble Lord, Lord Faulks, said, it is right to acknowledge that great progress has been made over recent years in the way in which expert evidence is used in the courts, but the amount of knowledge that is available for expert reports in connection with litigation is limited. I suggest no more than that a review of the sort suggested in the amendment is well needed.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, I am most grateful to all noble Lords who have contributed to the debate. It has gone slightly wider in the use of experts than the narrow interpretation given in the amendment, and in some respects has read into the amendment things that are not there, but I shall try to deal with the points raised and noble Lords may then understand better what I am saying.

On the point made by the noble Baroness, Lady Kennedy, we are not withdrawing funds for experts. Where the case has public funding under legal aid and funding for expert opinion is appropriate, funding will be made available. The Government are working with the Legal Services Commission to develop and put in place a robust client and provider strategy that both reflects the demands and requirements of the new legal aid market and obtains the maximum value from the ongoing structure developed in the legal aid market.

In the Government’s response to the legal aid reform consultation, we confirmed that we would not be considering contracting with or paying experts directly in the short term because of the administrative costs to the LSC. However, when we have had time to consider the family justice review final report, which came out just before Christmas, we will look at this matter again. At the moment, there is no plan for the LSC to take this on from the solicitors to whom the noble Lord, Lord Beecham, referred.

Amendment 5 seeks to impose a duty on the Lord Chancellor to review the accessibility and quality of expert witness advice for the purposes of civil proceedings, as well as a duty to maintain or improve such accessibility and quality following the commencement of Part 1 of the Bill. This is an entirely unworkable amendment, in our opinion. By definition, expert witnesses are highly qualified and experienced professional individuals in their normally very technical fields. As professionals, they will be subject to the standards required by their respective professional membership bodies. It is not within the Lord Chancellor’s gift, nor should it be, to determine the quality provided by any given expert witness. Principally, this would be inappropriate; the Lord Chancellor cannot be expected to be in a position to determine the quality of the expert evidence or advice given, not least because the requisite expertise would not be held to reach a credible determination.

The costs of establishing a mechanism to assess credibly the quality of expert witnesses would also be prohibitive. Even if resources were unlimited, we have severe doubts as to the viability of such a mechanism. Disputes as to the accuracy or otherwise of expert evidence can be the subject of extensive debate and even litigation.