Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, as your Lordships will be aware, the Lord Chancellor hails from Nottingham. He adopts the robust approach to justice that the legendary sheriff of that place is assumed to have held. Indeed, he almost embodies in himself a spiritual descent from the sheriff of Nottingham judging by some of his more recent observations, including today's, in which he seemed to imply that concerns about the Bill were motivated by concerns for lawyers' incomes. Recently, in an interview, he said that there are far too many experts. As I said in Committee when we were discussing this issue, we are not concerned to protect the interests or incomes of lawyers or experts. We are concerned about the position of organisations, such as law centres and the like, which the Government assume will be able to shoulder a substantial part of the burden that will be shed from the legal aid system—but that is another issue. Our objective is to preserve access to justice and to ensure that the parties and the courts have the assistance that experts can bring to bear on the matters which have to be adjudicated. This amendment seeks only to create a duty on the Government—the Lord Chancellor—to review the accessibility and access to expert assistance and to ensure the maintenance of both. It does not prescribe a method by which this should be achieved. There could be a variety of ways in which the objectives can be met. There might, for example, be a system of approving panels of experts for particular areas of law and for dealing with their remuneration in a rather more structured way than is presently the case. But that is not a matter which the amendment seeks to prescribe in any detail. Expert witnesses are relevant across many types of case. The amendment refers to the need to preserve the expert capacity in relation to Part 1, which is a matter that we will debate at some length on Wednesday. It remains to be seen what areas of law will remain in scope and what will not. Among the areas that might be brought into scope are elements of personal injury law and clinical negligence, and some matters of contract and the like, in which expert evidence can be very important. Perhaps the most clear example, which will certainly arise, is in relation to evidence in family situations. There are many cases in which expert evidence can be extremely important in the context of private family law. Examples include false allegations of child sexual abuse. In one particular case a child psychiatrist, having examined the situation, stated that a child who was allegedly abused would in fact have no memory of the time when the abuse was alleged to have occurred and thus was able to demonstrate that the child had been influenced by a foster carer. There was a case where a mother was assessed to see if she had sufficient mental capacity to participate in proceedings about her child, having suffered a non-accidental injury. After extensive investigation the expert was able to demonstrate that she had not deliberately perpetrated something but was in herself a vulnerable woman struggling to cope with considerable cognitive difficulties. In another case there was an allegation of incest between a father and daughter. As a result of the expert's evidence, it was clear that the allegation was in fact true. There was a case of a child on whom it could be demonstrated, after having been examined by an independent plastic surgeon, that burns had been deliberately inflicted. I could cite many other cases of that kind. Without the presence of expert evidence, these cases would not have been concluded satisfactorily. The question is this: to what extent can the Government ensure that expert evidence will remain available? The problem is that it is under threat. The Consortium of Expert Witnesses to the Family Courts, with a membership of some 500, reports that on the most recent evidence, only 7.5 per cent of its members in London would be prepared to work at the lower rates that are now being offered. That does not apply only to individuals who practise on their own account. Specialist expert witnesses who are employed by NHS trusts find it impossible to work and provide evidence at the rates currently being offered. For example, the Tavistock and Portman trust has written to the consortium of expert witnesses to say that the hospital could not provide the services of an expert witness at the permitted rate, which is £90 an hour. It says that £90 ““may be a rate that a doctor working on a private basis would be willing to work at. We are required to pay a medical consultant at the nationally agreed rates, to pay national insurance and pension contributions, to provide admin support, office accommodation, clinical governance and a number of other functions which push the cost up to significantly more””. The Great Ormond Street Hospital, which runs a court service, has said that its costs come to £150 an hour so it could not accept £90 an hour to deploy its consultants. The Cambridge and Peterborough NHS Foundation Trust shows that even at the higher rates—I repeat what I said in Committee, which is that it is paradoxical that higher rates are apparently being offered to consultants outside London rather than within London at the moment—it is unable to cover its costs and that, ““It is very unlikely that our trust management would allow us to maintain this position for very long as all of our team's work is conducted as part of the clinical services provided by the Trust””. I have received an open letter from a private organisation, Family Risk Assessment Ltd—I do not know whether other noble Lords have had it—illustrating the kind of problems being faced because of the new fees that have been introduced in advance of the Bill. The Bill has not created the problem, but it will have to be dealt with under the Bill's provisions in due course. The letter states that regional directors in various parts of the country have been authorising a usual hourly fee rate of £100. The Cardiff office of the Legal Services Commission has reduced that to £63 an hour by, as it were, reclassifying the expert witness as a ““risk assessment expert””, whatever that is supposed to mean, when their expertise is in dealing with perpetrators of domestic violence—which we were discussing only a few hours ago—and child sexual abuse. The director of the office in question decided that the expert did not need 30 hours of professional time to undertake an assessment of parents' risk and treatability but only 16 hours—which is quite an arbitrary selection of a timetable. In another case, an expert was required to visit parents in Lincolnshire, West Yorkshire and Northumberland to interview them for his court report. The fee rate was approved, but the relevant office refused to approve travel and hotel expenses. Clearly, it will be impossible for the expert to carry on at that level. This situation has arisen now, but how under the Bill can the Government ensure that expert evidence will be available in cases where it is clearly of value both to the parties and to the courts? In Committee, the noble Lord, Lord McNally, rather took the view that it was not part of the Government's job to ensure that expert evidence was available. Given the sensitive nature of the situation in relation to family law, that would be an abdication of responsibility. It is surely important, in the interests of both the parties and the judicial process, that efforts be made to ensure that expert evidence is available at all times. Of course, it would still be available to parties who could afford to pay, leading potentially to a two-tier system. If you have the money, you can employ an expert but, if you have not, it seems increasingly unlikely on the basis of the current arrangements that the cost of such expertise will be covered within the provisions of the Bill. There are ways of reducing the cost of expert evidence. The consortium made a series of suggestions about how that might be achieved, including the appointment of a single expert in cases, a reduced number of questions to be put, a reduction in the number of papers to be read, better timetabling and a better payment system. Direct contracts with what is now Legal Services Commission would presumably be with the director once the Bill is implemented. All those ideas were put forward in two meetings with the department, but nothing has emerged from it. It was interesting earlier today to hear the noble Lord, Lord McNally, refer to the Government procuring services. We are not suggesting that the Government should procure expert witness evidence but that they should facilitate it when it is necessary and desirable. In these circumstances, I hope that the Government will consider their abdication of responsibility for facilitating the provision of expert evidence of the right kind and at a reasonable cost to the taxpayer and the system. Accordingly, I beg to move.