I recently published an article on the need for regulation of expert witnesses.
I did not realise how much of a hornet’s nest would be stirred up as they was a chorus of commentary expressing disenchantment with the variable quality of expert witnesses.
The BBC programme Panorama on the 6th of June 2014 did an expose on the area under the Banner Expert Court Witness “ignored clients’ guilt.” The article relating to the programme stated that “as an industry, expert witnesses are subject to very little regulation and there are calls for greater powers to police them.”
It was reassuring to hear that one expressing my concern about this unregulated area I was not in a club of one.
The question now is, what would regulation look like and are there any models worth considering?
Indeed there are; if one looks at the legal fraternity in most jurisdictions, lawyers are required to be licensed and insured by law. There is an act of parliament established to ensure that they have the relevant qualifications in terms of:
- Character credentials.
The statute also established a registration regime that requires annual renewal and disclosures of anything errant as a prerequisite of renewal. The body has investigative powers and complaints about conduct or competency can be referred for investigation. If the matter warrants prosecution, it can be referred to a disciplinary decision maker who can fine, reprimand and cancel the licence if need be.
When I was engaged by the Victorian government to advise on the establishment of the Victorian Building Act, I followed this template and it became the basis of the registration regulations for Victorian building practitioners, who number roughly 24,000 in all. Be they engineers, builders or building surveyors, they all had to became registered and insured, just like lawyers. And just like lawyers, they came within the jurisdiction of a disciplinary board.
Although in recent times there has been some criticism as regards the benign penalties handled down in some of these jurisdictions, that can be cured by having more potent penalties and a more robust disciplinary disposition on the part of decision makers.
In jurisdictions like NZ, Victoria or NSW, as these regimes already have statutory licensing bodies, it would be very easy to licence expert witnesses as all that would be required would be to introduce regulations that require expert witnesses to be qualified, registered and insured, making it pretty much a “no brainer.”
Absent a practitioner registration regime, one would look no further than the Law Societies to find the statutory templates the would provide models for licensing and oversight.
Furthermore, it would be a user pays system; expert witnesses, as part of the licence fee, would pay for the overhead of the licensing regime. To ensure that there was a critical mass of licensees, there would be a a licensing regime for all expert witnesses be they medico legal, building disputation, aeronautical and so forth. Because the problem of the variable quality of expert witnesses is not jurisdiction-centric, it cuts right across many occupational terrains, thus supporting the case for a broad church registration regime rather than a sole profession-centric quango.
If a statute-based licensing regime were to be introduced for expert witnesses, there would be far more accountability and via the medium of insurance capacity account. Ethical tents could also be codified, not the least of which would be impartiality. There would also be a qualification and experience licensing criteria to keep the cowboys out of the loop. All of this would augur well for consumers and building practitioners alike once embroiled on construction altercations.