Finance Committee,

Meeting date: Tuesday, May 10, 2005

Official Report 213KB pdf

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Family Law (Scotland) Bill: Financial Memorandum

The second item on our agenda is scrutiny of the financial memorandum of the Family Law (Scotland) Bill. The bill was introduced on 7 February by Cathy Jamieson, the Minister for Justice. The committee agreed to adopt level 2 scrutiny of the bill, which involves our taking written evidence from organisations on which costs could fall, and oral evidence from Executive officials.

We have received submissions from the Crown Office, the Scottish Court Service and the Scottish Legal Aid Board.

Today we have with us Executive officials from the bill team. Carol Duncan is the bill team leader, Moira Wilson is the bill team manager and Alex Mowat is a bill team member. I welcome you all. If you wish to make a brief opening statement, you may do so. We will then move to questions.

I have a short opening statement, after which we will be available to answer questions, if appropriate. It will be easier if committee members initially direct their questions to me so that I can field them.

We are grateful for the opportunity to appear before the committee this morning to address any points that members may raise on the financial implications of the Family Law (Scotland) Bill. The bill reflects ministers' commitment in the document "A Partnership for a Better Scotland: Partnership Agreement" to

"reform family law for all of Scotland's people."

In common with many other countries, Scotland has in recent years undergone significant social change. Family formations are more varied than they were a generation ago, but the legal framework that supports families and which protects vulnerable family members has not progressed at the same pace. The purpose of the bill is, therefore, to bring the law into line with the way adults—especially adults with children—form and maintain relationships.

The guiding principles that underpin the reforms are: safeguarding the best interests of children; promoting and supporting stable families; and updating the law to reflect the reality of family life in Scotland today.

The Family Law (Scotland) Bill will introduce measured reforms, as opposed to making wholesale changes to the existing legal framework. The limited nature of the reforms is reflected in the relatively modest costs that are detailed in the financial memorandum. We have estimated short-term costs of £4.25 million for the first two years, and £3.19 million annually thereafter.

In preparing the financial memorandum, the bill team consulted a range of agencies to identify where costs were likely to fall. Because we concluded that costs would fall largely on the public purse in respect of court costs, we liaised closely with the Scottish Court Service and the Scottish Legal Aid Board with the aim of working up clear and reliable cost figures. In some instances, we could find no directly comparable statistics, so we elected in those instances to estimate figures rather than leave gaps in the overall projected sum. The financial memorandum shows where estimates have been used and gives reasons for our assumptions.

Throughout the exercise, our approach has always been to err on the side of caution—we have elected to estimate costs at the higher end of the spectrum. We aimed to produce a comprehensive, transparent and robust financial memorandum.

We are broadly content with the financial memorandum, although we have a relatively limited number of technical questions.

The bill will be major new legislation that will modernise family law, but you have not included anything in the budget for a public information campaign. Why? How much would a public information campaign cost and how would it be organised? Is it worth including the cost of such a campaign in the bill's potential costs?

I have a couple of points on the information campaign. First, research in the lead-up to the work that we have done showed that, throughout Scotland, there is a woeful ignorance about existing family law. We will introduce a package of measures to complement the proposed legislation, which will also need an information campaign to support their introduction. As the legislative changes will be only one element of a much wider campaign, the campaign will therefore not be a direct result of the bill, which is why we did not include the costs of the campaign in the financial memorandum.

Secondly, the Scottish Executive is not the only organisation that provides information to the public on the issue. We aim to work with our partner organisations to build on and co-ordinate the information that already exists, perhaps through more effective signposting. Rather than start from scratch with a major information campaign, we will add to what already exists and look for best value. Over and above our baseline sum, we have allocated an additional programme budget for publicity and information of about £200,000 for that complete information campaign.

Will the campaign be aimed at the public or the legal system? How will the information be put out? You said that the campaign will be linked to other measures, but will it be aimed at the public?

Through research, we have discovered that people have a great number of misunderstandings about their present legal rights and responsibilities to one another, so the campaign will be aimed largely at the public, although it will also need to inform the legal professions about the changes. As is often the case, members of the public want to access information on such matters only when they have an absolute need to do so. Therefore, we cannot simply have a one-burst campaign; we must try to ensure that the information is available whenever people need it.

The reduction in the periods that are required for divorce will have a financial impact. The financial memorandum states that the bill is likely to result in an immediate increase in the number of divorce cases that the courts handle. It goes on to say that the Scottish Court Service will need to redeploy existing staff and take on additional casual staff and that the additional staff costs in the first two years will be in the region of £272,000. In addition, legal aid costs will increase as a result. What provision has been made in the current funding for the Scottish Court Service and the Scottish Legal Aid Board for the expected short-term increase in the number of divorce cases?

No specific provision has been made, but it is important to make a couple of points about that. First, after the bill has become an act, it will be implemented about a year from now. Therefore, there will be only about one year in which the Scottish Court Service and the Scottish Legal Aid Board will have to find provision from within their current budgets before the next spending review. The additional costs that we are talking about will be about 0.2 per cent of the Scottish Court Service's current budget and about 2.3 per cent of the Scottish legal aid fund for last year. Therefore, we do not anticipate that those organisations will have difficulties in the first year of operation in handling any consequentials that arise from the bill. Thereafter, it will be for those bodies to bid for additional funding in the next spending review.

Is not it the case that the largest increase in applications for divorce will occur in the first year, which means that expenses will be the greatest then?

Cases will come forward in the first year, but they will not all be handled in the first year. We have discussed the matter with the Court Service and the Legal Aid Board, which are confident that they will have no difficulty in coping within existing resources for the first 12 months.

Can you give a breakdown of the £272,000 of additional staffing costs for the Scottish Court Service?

I am afraid not. The Court Service is conscious of the average case costs for divorce and it supplied us with the figure. Obviously, if the committee wants a breakdown of that figure, we can get one and write to the committee with that.

There is a lack of information on the impact of the measures on matrimonial interdicts—only four of the eight police authorities gave figures on that. What assumptions did you use to determine that those measures will have no additional costs to the police and that savings can be made on current expenditure in relation to matrimonial interdicts?

That is a difficult question. We wrote to all eight Scottish police forces and got pretty similar responses from them all. Unfortunately, statistics on the issue are not collected centrally, so we had to get them from each individual constabulary. All the forces, even those that could not provide us with specific figures, are confident that the numbers will be low. Furthermore, they all feel that the provisions on matrimonial interdicts, which will extend interdicts beyond the home, will if anything lead to a decrease in activity for officers. The reasoning is that, at present, if an incident occurs at a parent's place of work, police officers have to mediate between the two parties, but cannot make an arrest—at least not under the matrimonial interdict provisions. Officers often have to attend several such incidents, but the extension of interdicts to places of work and schools will make it easier for them to effect an arrest on the first occasion when they attend and will therefore lead to a decrease in work and paperwork. Not all the forces could give figures, but all eight forces feel that, if anything, there will be a slight consequential decrease in expenses.

The financial memorandum assumes that 10 per cent of cohabitants whose relationship dissolves will end up in court to arrive at a financial settlement. What is the evidence base for that figure?

Of all the provisions in the bill for which we produced figures, it was most difficult to do so for those that relate to cohabitants. It was fairly straightforward to calculate the additional costs of the provisions that relate to divorce because the Scottish Court Service can say precisely how many divorce cases are handled each year and how much each case costs.

However, we did not have that luxury with the provisions that relate to cohabitation, which will introduce new rights. Therefore, we worked with the relevant agencies, particularly the Court Service, to try to make a best estimate of the costs. The Court Service was able to say that 55 per cent of divorce cases had a financial settlement element, so that was our benchmark. We are not extending the same kind of rights to cohabitants as exist for married couples because cohabitations are generally shorter in duration and couples do not have the same amount of time to become so financially intertwined. We therefore know that we will not get anything like the same numbers of cohabitants going to court on separation to seek financial settlements.

I agree that the figure of 10 per cent is a best estimate. We knew that it was not going to be anything like 50 per cent. We discussed the matter with our partners and 10 per cent seemed to be a reasonable figure given the provisions on cohabitation. The percentage might turn out to be lower than that. As Carol Duncan said in her opening statement, we have opted for higher rather than lower figures throughout the memorandum. That was the most difficult figure to estimate, but we still believe that it is our best estimate.

The memorandum states that only a small number of unmarried fathers will have recourse to voluntary bodies for mediation or counselling, so the cost of that will be negligible. What is the basis for that statement?

We spoke to a contact in the National Family Mediation Service who said that, at present, small numbers of unmarried fathers seek help from the service. We relied on that advice. We gave the service the financial memorandum; its opinion was that the bill will have no impact that cannot be met outwith existing resources.

Thank you for coming along. We have exhausted our questions and we will put together a report based on the evidence that we have received and submit it to the lead committee.

I normally ask members whether they have any particular issues that they want to be included in the report, but from the contents of the questions, I assume that members are quite content for the report to be a technical exercise.

Members indicated agreement.

We now move into private session to discuss the draft reports on the financial memoranda on the Environmental Assessment (Scotland) Bill and the Housing (Scotland) Bill.

Meeting continued in private until 11:49.