Legal Aid, Sentencing and Punishment of Offenders Bill

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. What is of slight concern—I do not know whether the Minister is aware of this or whether he will comment on it—is that many of these suggestions were made during discussions with the department. Two meetings were held, and a third was promised but it never actually took place. The result is that we now have a reduction in fees and a distinct threat to the availability of such evidence in future cases. The Minister might want to consider whether this matter should be discussed by the department and the judiciary as well as with the profession itself to see what improvements can be made. But it is not simply a matter of private practitioners as expert witnesses complaining about their funding, it is striking that National Health Service trusts have indicated that they cannot allow the witnesses they employ to give evidence in court at the rate of £90 an hour. It costs trusts more than they receive, and since of course there is no profit element in the first place, there is something clearly wrong with the present financial system. Interestingly, mediators—the Government with some reason lay great store on mediation as part of their approach to access to justice—who it might be thought are much less qualified and probably do not bear many of the overheads of clinicians and others, will continue to be paid at the rate of £126 an hour; in other words, a third more than expert witnesses in London are to be paid in cases where their evidence might be crucial. The problem is that there is a real risk of insufficient expert evidence being available to the court and to the parties. This is not simply a question of paying for the hired gun that one occasionally encounters in the course of practice. I remember one case of mine—a clinical evidence claim—which went to a hearing. While we were awaiting the judgment, the medical witness for the defendant hospital confessed, as it were, that he did not have a case at all. He had gone through the motions of putting a case on behalf of the defendants in what in my view was a rather unprofessional way. That is not typical of the profession and it is not something that anyone would defend. However, as a consequence of that particular case, I still have a connection with the client making the claim and I am desperately trying to seek, for the purposes of matters going on in the Court of Protection, expert evidence from doctors, but only a very few are available to give such evidence. I should say that this is not a legal aid case, but it gives an indication of the scarcity of resources. I am told that it will take at least six months to obtain a report. If this were an ongoing case in court, that would create a clear difficulty. We need a situation in which sufficient experts are available to assist both courts and parties, and for that matter to provide an element of choice, because it would be wrong if only a very limited number of people were able to give evidence. In this rather unique market, one needs a sufficient number of players. The difficulty with the situation as it is now developing is that we shall see in this instance, as in other instances that we have been debating on this Bill, the probable emergence of a two-tier justice system. In this case, expert evidence will be available only to those who can afford it. That is not consistent with equitable access to justice for all who need it and it is not consonant with the obligation to assist the court by having available the necessary evidence that will enable it to reach the right conclusions. Whatever improvements might be made to the management of the system, this question needs to be kept under review. This amendment would oblige the Lord Chancellor to ensure, as far as possible, an adequate supply of expert witnesses and that their quality is maintained. I beg to move.