Justice Committee

Meeting date: Tuesday, October 23, 2018

Official Report 859KB pdf

---

Pre-budget Scrutiny 2019-20

Agenda item 3 is an evidence session as part of our pre-budget scrutiny ahead of the publication of the Scottish Government’s budget for 2019-20 later this year. I welcome Humza Yousaf, the Cabinet Secretary for Justice, and James Wolffe QC, the Lord Advocate, who are accompanied by their officials. I refer members to paper 3, which is a private paper.

I understand that both the cabinet secretary and the Lord Advocate wish to make brief opening statements. We will start with the cabinet secretary.

Thank you, convener. I will be brief. I thank the committee for inviting me here today to give evidence as part of its pre-budget scrutiny. The budget will seek to maintain the Scottish Government’s strong record of public service delivery to ensure stability, security and quality of services right across Scotland. The principles that govern our justice system, including the rule of law, public safety and the protection of rights, are essential to ensuring and maintaining sustainable economic growth and wellbeing.

The justice system contributes significantly to our economy, employing tens of thousands of staff directly and indirectly in critical roles across all parts of Scotland, protecting and maintaining key infrastructure, ensuring safety at high-profile national and international events and challenging those who undermine legitimate businesses. The portfolio contributes to longer-term prevention and equality through, for example, our whole-systems approach to youth crime, violence reduction and tackling adverse childhood experiences.

As has been the case for the past decade, we are once again delivering the budget in very challenging circumstances. We continue to deal with the impacts of the UK Government’s austerity agenda and the uncertainty caused by Brexit. Regrettably, we are now having to plan for a no-deal Brexit. No-deal planning is already absorbing significant resource within justice agencies. Maintaining the rule of law in the event of a no-deal Brexit will have a significant financial and operational impact on justice agencies, further damaging our economy and public services. That includes, for example, removing police officers from community duties in the event that they are called on to provide mutual aid to other UK police forces and the cost of funding additional police officers should that be required.

In spite of that challenging financial context, justice agencies have performed well over the past decade. Recorded crime is down 42 per cent. That is down to the policy choices that this Government has made but, undoubtedly, also to the commitment of all those working in the justice sector. The delivery of substantial and challenging public service reform and rationalisation including police and fire reform has provided substantial and recurring reductions in revenue expenditure that are built into the Scottish Government’s baseline budget while maintaining and improving services. Police and fire reform are on track to exceed the delivery of anticipated net savings of over £1.1 billion and £328 million respectively by 2027.

Last year, the UK Government finally acknowledged the inequity of forcing our police and fire services to pay VAT—a position that no other territorial police or fire service in the UK has faced. The Scottish Government has ensured that communities will benefit in full from Police Scotland and the Scottish Fire and Rescue Service being able to reclaim £35 million of VAT from March 2018. The Justice Sub-Committee on Policing heard in pre-budget scrutiny evidence from the Scottish Police Authority and Police Scotland about the potential for its digital, data and information and communication technology proposals to transform policing. I reiterate my calls for the UK Government to fully reimburse the £175 million that has already been paid in police and fire VAT over the previous five years. That would go a significant way in helping us to fund that digital, data and ICT transformation.

Within the wider justice portfolio budget, we are directing resources in line with the priorities and outcomes that are set out in our document “Justice in Scotland: Vision and Priorities”, which was developed and agreed jointly by key justice agencies and published last year. That includes increasing funding for services to support the victims of crime and also preventative services to help to divert people away from crime and to reduce reoffending. Third sector organisations play a vital role in helping us to deliver those services.

Finally—

Cabinet secretary, I would appreciate it if you could be brief.

Finally, we want to use our budget to recognise the significant contribution that is made by those who work in our justice sector. For example, the two-and-a-half-year pay deal that was recently agreed for police officers will put significant cash into their pockets, giving them and their families certainty. I am sure the committee will join me in recognising the very significant contribution of those who work in our justice sector to making Scotland a safer place to live, work and invest in.

I am happy to have this opportunity to assist the committee with its pre-budget scrutiny.

Thank you for the invitation to appear today. During a period of significant change, the Crown Office and Procurator Fiscal Service has continued to fulfil its public responsibilities to prosecute crime and to investigate sudden, unexpected and suspicious deaths and to do so rigorously, fairly and effectively. That is a tribute to the professionalism, commitment and skill of the service and its staff.

In line with the comments that the Crown Agent and I made to the committee last December, this year’s budget has allowed the service to maintain staffing levels and to implement the public sector pay policy for Scotland. The pay award was higher than in previous years and was implemented at an earlier point in the year, to the benefit of staff. The Crown Agent will be able to update the committee, if it wishes, about the position in relation to the various staffing issues that the committee has raised with us on previous occasions.

The service has also made significant progress in delivering non-staff savings. It has reduced its estate costs while continuing to serve local courts and local communities across Scotland. It has now begun full implementation of the project to use tablets and digital case management in court. That project has taken some time, but the time has been well spent with a view to getting the system right.

When I previously appeared before you in December 2017, I referred to the service’s changing case load and I advised the committee that I had tasked the Crown Agent with scoping the implications of a strategic shift of resources to deal with serious sexual and other complex cases. That work formed the basis for the additional resource that the Scottish Government has made available to the service in the current budget year, which I wrote to advise the committee about in August. I am pleased to report that the service has very recently been awarded an additional £1.1 million for the development of three new digital facilities.

11:45  

Those increased resources are the start of what I anticipate will be a long-term initiative by the service to respond to the challenges that are presented by a changing case load while meeting reasonable public expectations and continuing with the important work of system-wide reform. Both I and the Crown Agent will be happy to elaborate on the service’s plans during this evidence session or indeed in the future if that would be of assistance to the committee.

Thank you. We are going to start with a general question for the Lord Advocate and the same sort of general question for the cabinet secretary about additional in-year funding.

Good morning, panel. I have a question for the Lord Advocate. Will you outline the work that the Crown Office and Procurator Fiscal Service did to analyse the changing profile of its work and how that fed into the additional in-year funding?

The starting point was a demonstrable change in the nature and complexity of the cases that are reported to the service. We are seeing a secular decline in the absolute number of cases but a change in the profile, most markedly in the context of sexual offending. When I previously appeared before the committee, I reported an increase of some 50 per cent in the number of reports of High Court level sexual crime being reported to the service within a year, which is an astonishing increase in that particular area of criminality. That is welcome as it reflects the confidence of complainers to come forward and cases being investigated and prosecuted, but the service needs to respond to that change, and it has been doing so.

At the same time, we are seeing a body of large, complex cases that are in different parts of the service’s case load but are illustrated by significant and complex serious organised crime cases, which present particular demands. We are also seeing a change in the profile of cases in local courts, with an increasing complexity, as I mentioned. There, too, we are seeing an increase in the number of relatively serious sexual offences, with a 19 per cent increase in sheriff and jury court sexual offences in the same period as the one that I mentioned.

I tasked the Crown Agent with looking across the piece at the implications of those changes for the work of the service. Historically, as I understand it, the service has looked at the core need for prosecutors in courts up and down the country. In a sense, it goes without saying that we need prosecutors to be present in every court where a case is being prosecuted around the country. I tasked the Crown Agent with looking at, as it were, the preparation side of matters and what the service needs if it is to deal with that changing profile in a way that meets reasonable public expectations, recognising that evidence to the Justice Committee and the inspectorate and other evidence presents us with a picture of what the public reasonably demands of the service.

The Crown Agent did the work to look at the resources that are required to meet those various challenges, and that formed the foundation for the analysis that underpins the additional funding.

The Scottish Government announced £3.6 million. Do you anticipate getting that maximum amount of funding in the coming financial year?

I do not think that it would be right for me to anticipate what are on-going budget negotiations, as the committee will appreciate. I can say that the in-year funding reflected the analysis of the service’s resourcing needs as I have described them. On future budget, if the funding of the service does not reflect that analysis, that will present me with the need to make choices about what I do going forward.

I accept that the analysis is robust, but will you continue with that process?

The service always has to react and respond to changes in the nature of the case load and the volume of cases. This significant piece of work looked afresh at the service’s needs in response to the change in case load, but I am sure that the service will keep an eye on changes as we go forward.

Thank you.

For clarification, given that the additional funding is primarily for staffing, is there an assumption that it will be baselined in the budget for future years?

You are absolutely right to say that the particular needs of the service relate to staff. The core work of prosecution is undertaken by people. The non-staff costs have come down significantly over the past period, and it is in staffing that the additional resource is needed. Plainly, if future budgets did not support the same level of staff, the service would have to respond to that and choices would have to be made in the light of particular budget allocations as to what the consequences would be for the service’s work.

Will the need for recruitment and training delay the impact of the substantial extra funding that you have had, or had you anticipated that that is how it would be spent?

The recruitment process inevitably takes time and there is then a period of training and a period in which staff who have been recruited to the service build up their expertise in what is in many ways a specialist professional activity—namely, prosecution in the public interest. There will undoubtedly be time before the additional resource translates into staff in the service. The Crown Agent can probably give more detail on the recruitment process.

The planned improvement in, for example, bringing down the time to indictment, which is one of the responses to reasonable public expectations, will also take time to implement. It is dependent on staff being recruited and trained and working to get those plans implemented, but the plans are in place. The project is in hand and the service is pressing forward with that with some determination.

Lord Advocate, you talked about the management of case load and the aspiration to bring down the time to indictment. You will be aware of the evidence that we received from the Scottish Courts and Tribunals Service shortly before the recess. While welcoming the additional funding, it pointed up the potential difficulty that the change in the Crown Office and Procurator Fiscal Service’s ability to manage its workload could have consequential impacts on, for example, the Scottish Courts and Tribunals Service. I would be interested to know whether you recognise that as a challenge. Will you outline the discussions that have taken place with the likes of the SCTS about how that might be done in a way that does not just shift the problems of resources and the strains to another part of the system?

It is correct to say that this is a whole-system issue. What happens in one part of the justice system has a direct impact on other parts. What happens in relation to policing feeds through to prosecutors and what prosecutors do feeds through to courts. That was reflected in the package that the cabinet secretary made available—£0.8 million of the in-year funding that I have received from the Scottish Government was a transfer from the cabinet secretary specifically for work in relation to sexual offences. That was associated with additional funding that he made available to the Scottish Courts and Tribunals Service at the same time as a package.

That reflects the joined-up working that is now, as I perceive it, routine across the justice system. I have regular meetings with the senior judiciary, and the Crown Agent has regular interaction with the Scottish Courts and Tribunals Service and indeed other justice agencies, and those interactions are partly about seeking to make sure that the different parts of the system are, as far as they can be, reasonably aligned.

I presume you were surprised that the committee heard the evidence that it heard in the session that I mentioned. As I said, although the funding was welcomed, there was a specific concern that, whatever had been transferred—I assume that the witnesses were aware of that—it was not necessarily obvious that that was sufficient to meet an additional pressure on workload through the Scottish Courts and Tribunals Service.

If I Iook at it from the perspective of the head of the system of investigation and prosecution, I of course recognise that, when we are dealing with justice, we have to be mindful of the whole system and changes in the case load. How additional funding for one part impacts on others may depend on analysis, but the change in case load that we see is undoubtedly something that all parts of the system are having to respond to.

We have a follow-up question from Daniel Johnson before we move on to questions to the cabinet secretary on the additional in-year funding.

My question follows on from Liam McArthur’s line of questioning. If we look at the procurator fiscal’s budget in real terms, despite the £3.6 million additional funding the funding level will still be below that of 2015-16. To what extent will the £3.6 million fund additional resource and to what extent will it replace resource or capacity that has been lost in the past two or three years?

One needs to be alive to the fact that, over that period, the service has been very effective in two respects: responding to the changes within the system and prioritising staff numbers relative to non-staff costs. The proportion of the budget that is spent on non-staff costs has gone down significantly. At the same time, there has been a reduction in the number of senior staff and again a prioritisation in terms of the numbers of staff at the front line, if one can call it that.

This funding responds to the particular set of challenges that I described a moment ago, and if the service’s recruitment plans reach fruition, it will result in the service having, as I understand it, a higher staff level than it has ever had before. I suspect that the Crown Agent will be able to give chapter and verse on that, if that would be helpful.

For clarification, for the in-year funding of £3.6 million, the full-year equivalent is £5.8 million.

In so far as staffing numbers are concerned, I will be brief. The additional permanent staffing that we would be able to bring in with this funding would take us to the highest number of staff that we have ever had, and also the highest number of prosecutors that we have ever had. The historic high for prosecutors is 558, and if we are in a position to follow this through we will have more than 600.

This is not just about numbers. It is about the resource level that is needed to respond to the complexity and nature of the case load, and to seek to meet reasonable public expectations on the prosecution of crime and the investigation of deaths. Plainly, from my perspective as head of the system of prosecution in Scotland, it is very welcome.

12:00  

That high was in 2009-10, when the actual cash budget was £118 million. In terms of the non-staff savings that we have made in the interim, even within that budget we would be in a position to have higher numbers than we have had before in contrast with that £118 million.

That is a very useful baseline. Obviously, staff retention is a critical element. In our previous evidence session, we heard something that was perhaps slightly surprising. We might well expect prosecutors to be tempted away by more tempting job offers, but it was surprising to hear that so many of them are being tempted into the Scottish Government. Is there an issue arising from the comparison of pay scales between the Crown Office and other parts of the public sector?

The starting point is that, since the 1990s, the service has fixed its own pay and grades; the current levels within the service reflect choices that have been made over a period of time. Generally speaking, the retention rate of staff within the service is good. It is true that we have seen a loss of staff to the Scottish Government, particularly in the recent period; we have also seen a loss of staff to the shrieval bench where the pay comparison is very different from the service.

Extra funding is going into one side of the equation. Cabinet secretary, are you comfortable that the resourcing of the other parts of the justice system will be sufficient to ensure that any improvements that are made at that side will flow through the whole system?

That is a really good question. Fundamentally, we have to work collaboratively to do our best, along with justice analytical services and many others, to forecast the impact that one decision on funding, policy or guidance will have on another part of the justice system.

The short answer to your question is yes. I am confident, partly for the reasons that the Lord Advocate has already articulated very well. We do not necessarily think that some of that funding will substantially increase the overall number of cases, but it is about, for example, speeding up the process around the high volume of sexual offences that we have seen over the past few years and getting fatal accident inquiries ready to come to court more quickly. It is partly about speeding up as opposed to volume. Therefore, we have some confidence.

Our dialogue with the justice board is hugely important. As members know, the justice board—and its sub-group—brings together colleagues across the criminal justice system on an operational level, a policy level and, importantly, an analytical level. The group reviews current trends and potential future trends, and it is important that we take that into account.

I am confident, but clearly it is a matter of on-going discussion.

You may have touched on this to an extent in what you said at the end, but what analysis has been done? What robust scenario planning has been done to analyse what impact an increase in funding at a given point will have at the end point and, therefore, whether that is the funding that is required?

Our justice analytical services, and the team, are hugely impressive. When I took over the role of Cabinet Secretary for Justice and met the team, it was clear that the amount of work that it does—and the statistical information that it has to hand to enable it to do it—makes it a key member of the justice board.

Regular statistics are available, and the member will be aware of some of them. For example, we have Police Scotland’s quarterly management information on particular crime types; the Crown Office’s data on prosecution levels; SCTS’s quarterly data on criminal court volumes, which has been mentioned; and criminal justice social work statistics. I also get weekly prison population figures.

All that statistical evidence, the expertise of the justice analytical services and the expertise around the table of the justice board feed into policy decisions, funding decisions, and the guidance changes that we tend to make, particularly when we think that there might be a substantive impact.

If you could share some of that analysis with the Justice Committee, that would be very useful.

What particular analysis, convener?

The analysis that you have just referred to on the court service and various other organisations within the justice service.

Okay.

That would be very helpful.

We have a particular interest in the funding of third sector organisations. After questions on that, we will move back to the Lord Advocate and questions on staffing.

As you are aware, we have taken evidence from third sector organisations on their various priorities and analysis of the funding position. As the newly appointed cabinet secretary, what do you think the areas of priority should be in the funding of the third sector in areas of civil and criminal justice? As a follow-up, it would be useful to have a breakdown of the funding of third sector organisations within the justice sector. I do not expect you to produce that today, but it would be good to have that follow-up.

Where should the priorities be? Is there an opportunity—we explored this with the third sector organisations—to have a more strategic approach to funding those organisations? Rather than them competing for the same funding pot to do the same work, could things be done more strategically to avoid duplication where possible? How could that be achieved?

That was a host of good questions. I hope that I have been able to demonstrate, within the first 100-plus days in my role, where some of my priorities lie and where I think that community justice is absolutely essential. For example, strengthening support for victims and the families of victims of homicide in particular, for the most vulnerable victims and for community justice is essential to help us with that agenda.

A different side of the same coin is the rehabilitation of offenders and never forgetting our duty to do that. A number of community justice organisations are again vital to our making progress in that area.

Effective early intervention is related to both those agendas. We have talked a lot about the ACEs agenda. A couple of months ago, I saw a great example of early effective intervention from a young age in West Lothian Council, where the community justice organisation is working closely with the local authority and is making a big impact on levels of youth crime.

I could go on and on, but those are some of the key themes and key priorities for me.

Community Justice Scotland has a huge role to play as an overarching body to prevent some of that duplication. I have been hugely impressed in this portfolio by the willingness of partners to work together closely and collaboratively. That can be seen particularly well, for example, in tackling issues and providing support around sexual offences and rape with organisations such as Scottish Women’s Aid and Rape Crisis Scotland. Community Justice Scotland certainly has a role to play in that. Any ministerial role is always useful in helping to bring the right people around the table, so I hope that the victims taskforce that I announced just a couple of weeks ago will be able to play a role in that as well.

You asked about the breakdown of funding. I cannot do that off the top of my head, but I am sure that we can provide that to the committee in writing.

Is your question on this subject, Daniel?

I hope so. I will let others judge.

If you are not sure, perhaps you can leave it.

The question is about the role of Community Justice Scotland. My understanding is that we are moving to a commissioning model for the procurement of services from the third sector. There is some concern that that has slightly neoliberal connotations, if you will forgive me for saying so. What efforts are you making to ensure that that is not the case, and that it is about partnership working as opposed to a bidding process?

I have been heartened by what I have seen from the organisations thus far, but I also picked up some of that concern that undoubtedly you have picked up through your evidence sessions and in conversation.

All that I can say is that I am more than happy, and more than willing, to make sure that we get the ethos right as well as the mechanisms and the processes. I have heard those concerns as much as you have and I am keen to continue to work with community justice organisations to ensure that the new arrangements that we have in place do not impact them in a negative way. If we have one source of funding, there is that competitive element to it; that is understandable. However, I want to continue with the collaborative approach, which I have been impressed with thus far

I understand the point that has been raised—it has been raised with us as well as with you—but we are willing to work with organisations to make sure that there is not a negative impact.

A number of organisations raised the point about multiyear funding. Will that be addressed as well?

Yes. A number of organisations are in receipt of multiyear funding from us, such as Victim Support Scotland, Migrant Help and the trafficking awareness-raising project alliance, which works with victims of human trafficking. I can completely understand and see the sense in which multiyear funding is helpful to organisations. Clearly, the more that we can do that the better, but as you know we operate in a one-year budget process. We are doing multiyear funding in some elements and I am very open minded to doing it in others, where it is possible and appropriate.

On the funding breakdown, does the information that you hold extend to organisations that are funded indirectly by the Scottish Government, in particular by money going to local authorities? That is the front line of where decisions are made on where the funding goes. Do you have that information on what local authorities are funding?

We do not hold the information centrally, but I would be more than happy to work with Community Justice Scotland, as the new national body for community justice, to see what information it holds and how it can be collated. Local authorities are well placed when it comes to spending the money to get the maximum impact locally in their communities. We are happy to work to see where there are information gaps and how they can be plugged.

That would be useful. Thank you.

Daniel Johnson has covered some of my points on the concerns that we have heard about the lack of reliability or predictability of funding. You have given a couple of illustrations of something beyond an annual allocation of funding being provided. Why, if that can be provided in those areas, can it not be provided in other areas? Such an approach seems to have been taken in the health portfolio.

One of the concerns that people have raised with us is around how they can plan for the longer-term delivery of a service that is integral to achieving a range of the objectives that you and the Lord Advocate have set if, on an annual basis, they are sending out redundancy notices two or three months before budgets are signed off. Can we have a clearer commitment that you will look again at the extent to which greater certainty can be provided over a two or three-year, or ideally longer, period for budget allocations?

12:15  

I am more than happy to take that away. I am acutely aware that that point was raised with members of the Justice Committee, so it would be wise for us to reflect on that. Some of that is in our gift; some of it, of course, may need further collaboration with local authorities, through community justice social work, and conversations with local authorities on pots of funding. The point is well articulated and I am more than happy to reflect further on it.

Another concern that has been raised alongside that is around initiatives that are taken forward by the Scottish Government. Those initiatives might have the support of many third sector organisations, but there is not necessarily an early engagement with those same organisations about the budgetary impacts that a change in legislation and the roll-out of such policy changes might have. Again, that would be very much within the cabinet secretary’s gift. Certainly one would expect the Government to take a lead role but to be informed about the way in which any decisions that it takes will impact on the third sector, rather than simply taking the decision. The initiative may have support, but it could leave a number of third sector organisations in the uncomfortable position either of having to deliver on that and make changes to whatever else they need to deliver, or of simply spreading the jam far more thinly than would be ideal.

I have always thought that the most sensible approach is by co-design, and we try to do that as much as we possibly can. We try to understand from those at the coal face—organisations that are working with the victims of crime, or those who have perpetrated crime and anybody in between—what the needs of those individuals are. How do we rehabilitate the offender or how do we provide that victim support? You tell us. Rape Crisis Scotland and Victim Support Scotland are great examples of organisations that have helped to develop my early thinking, within my first 100-plus days, around where our funding priority should be for the future.

If we can co-design with those organisations where our funding priorities should be, I hope that we will avoid the situation that Liam McArthur articulates well. I take the point fully that we still have a way to go to get there.

Finally, those who work in family mediation—I declare an interest, as my wife is involved with Relationship Scotland Orkney—raised with us the concern that there are very few shows in town when it comes to funding pots. There is the Scottish Government, Big Lottery funding, and a degree of local government funding. Does either an awareness of, or a greater diversity in, funding pots need to be stimulated in order to cover the breadth of demand that exists for this sort of funding? If a service falls out of favour with the Scottish Government and it has had an allocation of funding from the Big Lottery, inevitably the service has to come to an end; there is a cliff edge with that service, upon which many very vulnerable people may be reliant.

That is a really good point. Again, I will reflect on how we do that. A couple of organisations have written to me, in my relatively new role, when they have had funding challenges. I look at their projects—of course, there is a process to go through—but I immediately think that there would be a number of other funders that would be interested in organisations that are providing X, Y or Z service. We need to make that link. Most members around the table probably know, as I do, of local funders fairs. Funders are brought in, and organisations often turn up and say, “I did not realise that X, Y or Z funder could provide funding for my project.”

From a justice perspective, perhaps we can reflect on our community justice partners and the funders that are out there more widely, and see whether we can help to make that connection. Your central point is one that I would not disagree with: the more diversity that there is in funding pots, the better it is for everybody.

Relationship Scotland gave us the stark message that for big funding, it is either the lottery or the Scottish Government.

Following on from the points that were raised by Rona Mackay and Liam McArthur, cabinet secretary, do you have any plans to implement guidance for local authorities around specific agencies? The local authority in the area that I represent is running some innovative work on justice, but there have been recent decreases in the local Women’s Aid budget, which has not gone down well and is against the Government policy objectives. Are there any plans around such issues?

Across ministerial portfolios, there can often be a tension between the local authority and Government with regard to how money should be spent on local and national priorities. When I was minister for transport, that tension would often involve the active travel agenda and how our national vision was perhaps not being realised by all local authorities. In some respects, we have to accept that that tension will exist if we want to give local authorities the autonomy to do as they think best. In my previous portfolio, I helped to address that issue by ensuring that the relationship with COSLA and with local authorities was a good one. I think that that is probably the best way to do it.

In the few local authorities that I have managed to visit in this portfolio thus far, there are some excellent examples of good practice. I mentioned West Lothian Council earlier with regard to effective early intervention. We can share some of that and maybe even think about forums where that could be done. That process should not be about singling out one local authority and saying, “You are not doing what we expect to be done nationally”. Instead, it is about saying, “Here is some good practice from one local authority. How about replicating that if it is suitable for your local authority?” However, I accept that the tension that I described will almost inevitably always exist in some way, shape or form.

I do not know about you, cabinet secretary, but I am a big Joe Biden fan, and he once said:

“Don’t tell me what you value—show me your budget and I’ll tell you what you value.”

From that perspective, what does the fact that the community justice services budget is £35 million and the Scottish Prison Service budget is £361 million say about the perceived value of non-custodial sentences and community justice orders and provisions? Do you expect that to change in the future, reflecting many of the things that you have said publicly, which I would broadly agree with, about the need for there to be an emphasis on non-custodial options for sentences?

I absolutely agree with the latter part of the question. I would expect that balance to shift to some degree. I am certainly very supportive of the approach that Mr Johnson mentions and I will be looking to bring forward a presumption against short sentences of 12 months or less. Party positions on timescales might be slightly different but, generally, there is an understanding that short custodial sentences are not as effective for rehabilitation in comparison with community sentences. There will inevitably be a shift on that.

That being said, there are calls from Daniel Johnson’s party—in fact, from almost every party that is represented around the table—for people who commit the most heinous and serious crimes to be locked up in jails and to serve long sentences. Those serving sentences for the most heinous of crimes—those on life sentences—are serving longer than previously. You have to have such people in jails. That is a fact of life. However, I sometimes see some misreporting of the Scottish Government’s vision. I will give you one example. A newspaper had a recent splash on its front page around replacing Barlinnie and talked of a super jail. The Government is not establishing super jails—we do not do super jails. If we were to replace Barlinnie, we would be looking at having a prison with around the same capacity.

The issue is not about having to lock more people up. Yes, some people will have to go to jail, and public safety is absolutely and utterly paramount, but I agree with Daniel Johnson’s general sentiment that we should rehabilitate more people and that community sentences are more effective in doing so. In light of that, I would expect that shift to take place, and the presumption against short sentences—PASS—is a demonstration of that.

I agree that we are never going to do away with the need for prison, especially for the most heinous of crimes and not least because there is a need to guarantee public safety, which is something that, sometimes, only prison can do. However, in order for community justice orders and provisions to be effective they also need to be robust and they need to be trusted. Therefore, that needs a level of investment. However, if you delve into that £35 million figure, you see that only £12 million is spent on those provisions.

Do you agree that, in order to have that trust, there needs to be robust and consistent investment, which touches on some of the points that Liam McArthur raised about the consistency of programmes and rigour and robustness in relation to them, which ultimately costs money?

Yes, I agree with that. It is fair to say, though—this will not surprise anybody—that the difference between the cost of keeping somebody in prison versus the cost of an effective community sentence is stark. I am sure that people understand that. Therefore, it is not right to just compare the figure for community sentences with the figure for prisons, although I understand the reason why Mr Johnson makes the comparison and I do not disagree with the general point that he is trying to make.

Some of the issue also goes back to the nature of cases. The Lord Advocate will undoubtedly keep me right on this but I think that, the last time that I spoke to the Lord President, around 80 per cent of High Court cases concerned sexual offences and rape. That is the nature of the cases that the court is dealing with and, undoubtedly, there might be a need for those people to be in prison. That does not take away the hope of rehabilitation but, in the interests of public safety, that prison might be the right place for them. The nature of the crimes and the offences play a part in all of this but, again, I do not think there is too much disagreement between myself and Daniel Johnson on this matter. I hope to see a shift away from spending on prisons and towards spending on rehabilitation efforts that we know work well.

On that public trust point, it is critically important not only that we have these options but that they are understood by the general public and that people know what the content of the orders is and what happens as a result of them. Therefore, do you think that there needs to be some investment in public awareness of what community justice means?

Yes. That is a really good point. The perception of a vast majority of people is that a community sentence means that someone has got off with it, and that it is not a harsh enough sentence. People who hold that perception do not have an understanding of the ethos behind the sentence, which involves the potential to rehabilitate the offender and, hopefully, having fewer victims of crime.

We should reflect on the point that you make about whether we need to look at how we work on the public narrative. Some of that is Government’s responsibility, I am sure, and we will look at that and reflect on it. However, some of it is the responsibility of all of us around this table. It is important that all of us use the data, the facts that we have and the justice analytics, that we stick to those facts and that we talk about what works in terms of rehabilitation, and that we do not dismiss community sentences as a soft-touch option.

I have some questions for the Lord Advocate on the issue of the disparity in pay. The FDA union has produced some very good information on that. It has a table that shows that a legal trainee in the Crown Office and Procurator Fiscal Service is paid 27 per cent less than a legal trainee in the Scottish Government. That has a knock-on effect. I believe that, some years ago, there was an agreement with the then Solicitor General and, I think, the deputy chief executive of the COPFS that there would be an equivalent grading to the Government’s payments for qualified solicitors. However, the knock-on effect sees, for example, a procurator fiscal depute being paid £39,780 and the equivalent in the Scottish Government being paid £46,889. At various points, that disparity can be 15 per cent, 27 per cent or 50 per cent, always in the wrong direction. Can you address that?

Yes. It goes back to the point that I made in response to Daniel Johnson. The starting point is the autonomy that the service has had in relation to pay and grading since the 1990s. The position that we are in reflects decisions that were made by the service and no doubt also by Scottish Government over a long period of time. I will come back to deal specifically with that in a moment.

12:30  

The Crown Agent will no doubt be able to give more specifics on this, but it is true to say that the service continues to attract large numbers of applicants for legal and administrative jobs. I suspect that that is because being a public prosecutor is an immensely rewarding professional experience, and I would like to think that it is an exciting time for people to be working in the service. There is a lot happening in the justice system. The service is full of immensely skilled and dedicated people. Part of the context for that is that, if one broadens out the comparisons, the average salaries for solicitors in private practice, according to the Law Society of Scotland—

I will just stop you there, Lord Advocate. I accept that people in those jobs are dedicated, but we heard that morale was down and that people were leaving the service. If that disparity continues, it is not sustainable that the service will retain the level of skill that it requires to function properly.

I was going to deal directly with that in a minute, but I can do that now.

I think that the figures show that the service has lost 59 members of staff to other Government departments since January 2014, and it is correct to say that the rate of departure has increased over the past 18 months. In addition, as I mentioned earlier, there is a loss of staff to the bench, which is perhaps a reflection of the skill that you have identified. There is, no doubt, a range of reasons for that, and there have always been staff who have moved on from the service for a variety of reasons. However, the pay differential is an issue. Undoubtedly, the service would like to reduce that differential but that, of course, has resource implications. One does have to look at the issue in the context of the service continuing to attract applicants, and of the rate of turnover being at an historical low at the moment. That is not to say that I view with any equanimity the loss of skilled staff from the service.

It was certainly a concern that the FDA and other unions were at pains to point out to the committee.

On that point, Lord Advocate, you would presumably concede that that pay differential makes entry into the profession and, indeed, transfer into the profession somewhat unattractive, particularly for younger lawyers?

It strikes me that there are two separate questions, looking at the information that I have. One is that the service continues to attract a high number of applicants for entry into the profession of prosecutor, and that might reflect the fact that, if one looks at the Law Society’s figures for the profession as a whole, the median average salary for a solicitor is £35,000 in private practice. That is the broader context. The other issue is that the job of being a prosecutor is an immensely attractive and rewarding one. Those issues apply at the level of entry.

It is true to say that, for a variety of reasons, staff from the prosecution service have always moved on. We have seen an increase in the number of staff who are going to other parts of the public service, and I would not dispute for a moment that part of the context for that is the pay differential that has been identified.

Is any analysis done of why people are moving?

The Crown Agent will be able to give the detail but, as I understand it, people are asked why they move on.

There are exit interviews. Just to provide some context, the Lord Advocate mentioned that 59 members of staff have gone to other Government departments since 2014. Eleven of them are lawyers, so the vast majority are non-lawyers. During that same period, we lost 14 to the bench—they became summary sheriffs, sheriffs and so on. Those are the markets in which we are competing for our more experienced staff.

Yes, but my question was: do you analyse the reasons why people move? Is it possible to provide the committee with data to say the pay differential was the reason why people transferred?

Whether it is statistically significant, I can certainly indicate that pay is mentioned in a significant proportion of those departure interviews.

Any further information that you could give on the reasons why you think people are leaving the service would be helpful to the committee.

Of course, no problem.

We have just one final question for the cabinet secretary. What conversations have you had with Police Scotland about its call for what it considered an absolutely crucial amount of funding, £298 million, for its IT project?

Police Scotland—the chief constable and a couple of his colleagues—presented the outline business case to me. From my perspective, I understand in principle the issues—I do not think that I have to go over the issues around i6 and the legacy issues and so on. The caveat to all of that is that we give money to Police Scotland—through, for example, the reform budget—to upgrade ICT. The project that you mention is a huge, substantial change that has quite a hefty price tag. In principle, of course, I support the proposal and I understand the reasons for it but, clearly, the issue will be subject to budget negotiations and so on.

To answer your question directly, yes, the chief constable and his colleagues have presented that case directly to me.

Are you considering it?

That is an issue for my colleague, the Cabinet Secretary for Finance and the Constitution, as part of budget discussions that he and I will undoubtedly have. However, the issue is very much subject to affordability. That £298 million figure is not a small number.

I think that the chief constable suggested that even to stand still would cost a considerable amount of money—£19 million was mentioned.

Doing nothing is not an option, and that is why I mentioned the money that we have allocated through the reform budget for ICT interventions. However, with regard to the full bhuna of the digital data and ICT transformation that has been talked about, in principle I am supportive of the proposals but, clearly, the proposal is subject to affordability.

Thank you all very much. That concludes our line of questioning. We will suspend for a minute to allow the Lord Advocate and the Crown Agent to leave. It was remiss of me not to introduce the Crown Agent at the very beginning. The cabinet secretary will remain with us for our next agenda item.

12:38 Meeting suspended.  

12:39 On resuming—