Official Report 231KB pdf
Our first witnesses are Gerard MacMillan, president of the Glasgow Bar Association, and Vincent Price, vice-president of the Glasgow Bar Association. Is that correct? I am sorry—I should have said Vincent Smith. Perhaps the witnesses can introduce themselves. That would save me from further embarrassment.
You have my name right, convener.
I am Vincent Smith, the vice-president of the Glasgow Bar Association.
I am Andrew Pollock and am also with the Glasgow Bar Association.
I must be watching too many horror movies. Do the witnesses wish to make brief opening statements?
We considered that and we prefer to deal with questions.
I am looking round the committee to see whether anyone wishes to raise a burning issue.
I shall be a volunteer rather than a pressed man.
The Glasgow Bar Association considers that the legal aid system, particularly the civil legal aid system, is at the stage of meltdown. I may be dramatising the position too much, but that is our opinion. The difficulty is that inadequate priority is given to the role of lawyers and their remuneration, which means that many of the best and most capable lawyers are lost to the civil legal aid system.
I have some sympathy with that. If a quick multiplier by eight is done, we see that a solicitor who was in court all day on a case could claim about £320 a day for his efforts. Sole trader consultants for Scottish Enterprise pick up £300 to £500 quite readily for a day's consultancy. Would you break down that £42.20 into a rough proportion of office costs and rates, taking into account the overheads that most solicitors have?
I appreciate the question. I am absolutely delighted that you have made the point that the £42.20 does not go into the lawyer's pocket. It is not profit—it is the business's overheads. Certainly, the Law Society has projected that, on a cost-of-time basis, an hourly rate would be more akin to £93 or £94, if not more.
You have made the point.
My colleague should deal with that, as it is about criminal matters.
The fixed-fee system should be looked at again on the basis that there are no provisions for a fixed-fee increase. The system is there to stay. Until we can take into account all the other factors that are brought to your and our attention with a view to an annual increment, the fixed-fee scenario is, in my opinion and for my own business, unsustainable.
Real-terms expenditure in legal aid will fall over the next three to four years by about 4 or 5 per cent. The Executive would say to us that this budget is demand-led—the Scottish Legal Aid Board just spends whatever it has to spend—and so we should not worry about the overall total. Have you received any explanation of why the figure for the legal aid budget, which you claim is already far too low, is going to get even lower over the next three or four years?
It is backward logic to say that the budget is demand-led. The figure is only demand-led because the basic rate has been set. If the basic hourly rate was increased, the projections would have to increase. The budget increase across the board is somewhere in the region of 18 to 22 per cent over three years, depending on what figures are used. In contrast, the increase in the legal aid budget is 1.5 per cent over three years, which, as you said, is a decrease in real terms.
I am glad that Phil Gallie asked the questions about pay, because they always strike a note of self-interest. It is appalling that the profession has not received an increase in legal aid rates for nine years and will not receive one for another three years. What you say is quite right. As a former legal aid lawyer who operated in family law, I know that that situation means that junior solicitors are given cases that they do not have the maturity or experience to handle. That is not their fault; the rates make such cases not worth while for senior solicitors.
I am glad that you have mentioned that issue. In the consideration of the increase in the cost per case in the civil legal aid system—a matter that has been drawn to people's attention by the Scottish Legal Aid Board—inadequate account has been taken of the increase in outlays.
I thank you for that information, but is there anecdotal evidence that, because of constrictions on the budget, solicitors are having to go through more hoops to get the board to spend on outlays? As you and I know, it is not possible to instruct a report without having the resources and the authority to do so. With tight budgets and increasing outlays, how can those budgets be kept to?
That is extremely difficult. I give the real-life example of a medical negligence case involving a child who was catastrophically injured at birth and has cerebral palsy. In order to prove the case, we need to obtain expert reports from independent obstetricians. The Legal Aid Board has a policy that a solicitor cannot go outwith Scotland to get a report from an independent expert. That is because English consultants cost a lot more. Our hands are tied immediately, because we are limited to the number of obstetricians from whom we can obtain a report. The Legal Aid Board usually allows us to instruct only one expert. We turn up for a hearing to find that the health service that is fighting the case has access to at least two experts. With our one expert, we cannot provide as effective a service as we would have wished.
What effects might the public defender system have on your business?
From the figures that we have seen, I do not think that we are overly concerned with the impact of the public defender's office. The experiment has some time to run. As far as we understand the figures, we can hold our heads up. Andrew Pollock mentioned meltdown. When I last gave evidence to the committee, Women's Aid had just told members that the organisation was on its knees. We are very much in the same category.
The question on the important issue of fixed fees proves what we have been saying all along. We cannot consider civil or criminal legal aid in isolation; they must be considered together. What has become clear over the past few years is the extent to which criminal legal aid was subsidising civil legal aid work. Many practices would do the work, in which there was little or no profit, because the criminal legal aid work would pay for it. That does not happen anymore.
On Mrs McIntosh's question about the public defender, there is no problem as long as there is a level playing field, as Gerry MacMillan pointed out. For example, we could not compete if all persons who appeared on summary complaint were referred to a public defender's office that might be opened in Glasgow. However, as far as costs are concerned, there is no doubt that we provide a better service than the public defender's office could.
I do not know whether you have had a chance to consider the six targets that the Crown Office and Procurator Fiscal Service set itself, five of which it failed to meet. I am aware that, as practising solicitors, your members will have a close relationship with the COPFS. Does the service's problem with resources impact on your daily work?
I offer the example of the Tuesday after the first holiday weekend in May. Because there was no court on the Monday, all the persons who had been in custody from midnight on Friday went through the court on Tuesday afternoon. The court was due to start at 2 pm; however, it did not start until after 3 pm and rose again at 3.35 pm with the sheriff indicating to the public that the system could not cope with the 88 persons in custody. The court eventually completed its business at 10.45 pm that night, after which those who had been detained in custody had to be transferred to wherever. Such a situation impacts on defence solicitors; colleagues had to stay there for the duration and the majority of them were not remunerated at all. Only the duty solicitor would have received any remuneration. We are still awaiting the reasons why that situation happened on that day, but there must be some reason why the system cannot cope with what was not a fantastic number of persons. After all, we have seen more than 90 and 100 going through the court in the past.
I do not really want to get into details of the court administration. We have got the point.
The point is that the Crown Office's lack of resources caused the great delays in court on that day.
I want to ask about lack of resources and court delays. I had the pleasure of visiting Glasgow sheriff court at the invitation of the Glasgow Bar Association; I found the visit most enlightening. You raised with the group that you invited the issue of intermediate diets in summary trials, which were introduced to make the court run more smoothly. I am sure that that happens most of the time, but I was told that the non-availability of statements was making the system run less smoothly than it should. Is that an on-going problem?
That is one of the problems, but to be honest, in the great scheme of things it is not something that we lie awake at night worrying about. There are many greater problems to deal with. Our great worry, as Vincent Smith made clear, is that there are so many component parts of the system—intermediate diet courts, deferred sentence courts and trial courts—that it is sometimes a miracle that it comes together. If it does not, which frequently happens, the only person who is penalised and not remunerated for that day in court is the defence solicitor. One cannot run a business on that basis. I hope that I have not developed the point away from where Pauline McNeill wanted to go. The non-provision of statements is an annoyance, but it is not the main problem by any stretch of the imagination.
Does it happen at all?
Yes, of course.
What effect does that have on the ability of a defence lawyer to argue their client's case? Is it a disadvantage?
Without getting overly technical, the object of the exercise at an intermediate diet court is to advise the court of how prepared one is. Of course, without Crown statements one is at a considerable disadvantage, because one cannot take one's client's instructions and cannot properly prepare the defence. As a result, one might require to ask for another intermediate diet. That intermediate diet is built into the fixed fee, which means that one comes back to court on another day and is, in effect, unpaid, which is not the lawyer's fault. That day is included in the fixed fee. That is another example of lawyers picking up the tab for inefficiencies in the system.
We must move on.
I want to ask a question on another subject, convener.
We are tight for time, Pauline.
My question is on the resources that are available to procurators fiscal. We have been asking questions during the budget process, and we put questions to the Procurators Fiscal Society, which said that procurators fiscal are under-resourced and that there is not the liaison that ought to exist between duty fiscals and the police. Do you have an opinion on that?
I cannot comment on the relationship between the fiscals and the police, because that is outwith our knowledge.
Do you have any experience of the availability of procurators fiscal in your work.
Do you mean to discuss cases?
Yes. If you need to speak to a fiscal, what is your impression?
It is extremely difficult to do.
I do not want to criticise a system that is under pressure, because in a sense the procurators fiscal are merely feeling the obverse side of the coin that we feel. I am sure that they all work hard, but in contacting the fiscals' office in Glasgow, sometimes one would be as well pushing one's letters down a stank or telephoning somebody else, because there is no response, which holds up cases. There are too few fiscals. If one wants to discuss a case, the appointment might be a week or so ahead. Given the delays and the difficulties in getting statements for the intermediate diet court, by the time one has those statements and has a meeting, the trial is upon one, which defeats the purpose of the meeting.
I have a general question. Correct me if I am wrong, but you represent the Glasgow Bar Association. Are the difficulties—which you say arise because of the number of people who are taking up legal aid business—the same throughout Scotland, or are they specific to Glasgow?
Are you talking about civil or criminal legal aid?
Both.
Certainly on the civil side, it is not just a Glasgow problem; it is a problem throughout Scotland. If anything, it is worse in rural areas. Rural practitioners are under the same financial pressures, but it might be worse for them, because there is no economy of scale to the extent that one might have in the city.
I thank the representatives from the Glasgow Bar Association.
We believe that the district courts provide good value for money in the provision of local justice. About 1,000 justices of the peace take their turn on the bench to deal with offences that have been committed, or not, in their community. That involves a great deal of skill and dedication. If we add the knowledge, experience and professionalism of the district courts clerks, who act as legal assessors, we have a valuable resource. The volume of work has shrunk in the past few years. Clearly, the district courts could deal with a heavier work load and perhaps a wider remit.
In other evidence sessions, we have heard about the considerable pressures on the Procurator Fiscal Service, which is for the courts at the lower end—that is, the district courts. Can you tell us about the impact of those pressures on the district courts?
Phyllis Hands, the secretary of the District Courts Association, might be better able to answer that question. We feel that the pressures have had quite an effect. Our work load has dropped, and not only because of fiscal fines. On many occasions, the Procurator Fiscal Service does not have time to deal with cases. Phyllis Hands is better able to answer that question.
Budgetary constraints mean that procurators fiscal cannot mark papers for the district court unless they have a good reason for not using any of the diversion schemes, including fiscal fines. Before budget constraints were introduced, fiscals who chose not to mark cases for court had to explain why those cases were not being marked for court and why a diversion was being used. Now, the system works the opposite way round.
I will continue on that theme. I spoke to the regional procurator fiscal on Monday. He thinks that the issue has nothing to do with fiscal fines and that the same amount of work has been sent to the district courts. I know that, traditionally, Phyllis Hands's court branch was the third busiest. I understand that it is now the second busiest. Do you agree with or contest that?
Our three courts in North Lanarkshire are probably the second largest after those in Glasgow. Two courtrooms that are available at Motherwell were built eight years ago because of the volume of work. Both courts used to work all day until 3 o'clock or 4 o'clock in the afternoon. Now, one court is shut every day, apart from Wednesday, when we have a means court and a trials court. A court is available for business that is not being generated.
I will comment on the experience of the PFs who are going to district courts. My recollection is that we used to have a fair number of experienced PFs, but latterly, comparatively young people were joining the service. Does that have an effect on the turnover of cases? Would you prefer the number of available PFs to be increased, which would therefore mean that PFs were more qualified and experienced?
We get the younger fiscals. We also have trainee defence solicitors, because the district courts are reckoned to be a good place for them to cut their teeth.
The kindergarten.
The fiscals do not seem to receive sufficient training before they start. They seem to be watching the court one day and left to get on with the job themselves the next day. That is what happens in our area.
That is the same as my recollection.
Cases take longer, because the fiscals take longer to study their papers and will not have had a chance to study the papers unless they have been committed enough to take them home to read before they come to court in the morning.
A point was made about the work load of district courts decreasing. I sit as a justice of the peace in Midlothian and I deal with less than half as many cases as I did 20 years ago. Many more cases are continued, and I have formed the impression that the PF has not had time to prepare for cases. He opens the folder for a case and finds that although he cannot proceed with it, the case must come to court or be time-barred. The proportion of cases that are continued without pleas being sought has increased dramatically.
I have only a couple of questions—I am trying to pick you up correctly. Phyllis Hands said that previously, if a case was to be brought to court and was diverted to, for example, a fiscal fine, a reason had to be shown for that diversion. That has changed and the norm—if I may use that expression—is to divert or to explain why the case should be brought to court. Who explains that to whom?
That was hearsay from me. When we complain constantly about not receiving enough work, deputes who appear in court tell us that. I presume that they are told that they must explain that to the regional fiscal, to their superior officers or to the policy unit in the Crown Office.
For how long have you been involved in district courts?
Twenty-one years.
I value your evidence. Why is the practice that you described happening?
It is happening because of pressures of business and pressures on the fiscal service. I think—it is hard to say—that the service does not have the same calibre of staff as it used to have.
Just go ahead. You should not worry. We are here to find out the truth. We have heard evidence and received figures that show that the staff are young and that there is a high staff turnover. Many of us are aware of that, so you are not alone in saying that the staff are not of the same calibre. Is it therefore your position that not enough fiscals of a higher calibre are available?
The fiscals are not given sufficient time to train before they are put into court. I do not think that that is the situation only in the district courts. The fiscals are also being shoved into sheriff courts because of pressures of business there. The higher the level—up to regional fiscals and their deputes—the less the fiscals tend to go to court. Instead, they sit in the office doing management and trying to control the budget. If the PFS employs solicitors to be fiscals, perhaps the more senior fiscals should be in court, and perhaps managers should manage the office and the budget.
What is the system's impact on the delivery of justice?
It slows the delivery of justice. For example, we deal with road traffic cases—although obviously they concern only such matters as speeding or going through red lights. The police may offer the offender a fixed penalty. The case may then go to the Procurator Fiscal Service, which may offer another fixed penalty. The time limit runs from the date of the offence.
In your long experience, is that a change from the previous situation? Has slippage occurred, or is the change fairly dramatic? When did it all start to fall apart?
The system probably started falling apart just before local authorities were reorganised, about six or seven years ago.
Is the decline continuing? May I use words such as "decline"? You need not accept the words that I use.
The level of service that we receive from the procurator fiscal's office is declining.
May I clarify that for the record? Are you saying that an increasing number of cases is not reaching court, not because another disposal is thought to be more appropriate, but because insufficient resources are available to prosecute those cases within the time limits?
That is right only to an extent. Some cases are being diverted and followed through—the fiscal fines are being paid. However, some statutory limits mean that by the time the fiscal deputes examine the work load on their desks, the cases have been time-barred, or the delay is so long that the case cannot be brought to court.
Mr Lorrain-Smith referred to training. Will he explain the funding system for that training? What effect did the European convention on human rights judgment that the services of many experienced justices of the peace had to be dispensed with because they were councillors have on training and training budgets?
The present system is rather different in different commission areas, because the obligation is on local authorities to manage the district courts and to ensure that justices who appear on the court rota are adequately trained. The removal of councillor-justices had no direct effect on that, but it is beginning to have an effect now, because the appointment of new justices has caught up and we have a wave of new justices who require training.
The cost of those training weekends must be met by the local authorities, which is why we can get to only about 10 per cent of justices nationally. Each local authority must decide how much it wants to spend on the training of justices and how best to spend that money. It might be that only two or three justices are sent for training from each area. If a council has only eight justices on its rota, two or three justices will represent quite a large proportion, but it is a very small proportion for those areas that have a larger rota.
You have just made a point that I wanted to illustrate. We are talking about budgets today. The district courts budget does not, as far as I can see, come into the Scottish budget. What I was trying to find out was whether any special allocation had been made by central Government to the local authorities for that purpose, given the fact that it has imposed additional costs on the district courts system.
No. Phil Gallie mentioned the ECHR. There are considerable training requirements for complying with the procedural aspects of the ECHR. I understand that, south of the border, our English colleagues are funded by the Lord Chancellor's Department to the tune of £10 million. There are many more magistrates south of the border than there are justices north of the border. Nevertheless, the burden of bringing justices up to date with that new legislation fell on an existing budget, or rather on 30 different existing local authority budgets. The attitude to justice training is different in different areas.
I think that we shall stop at that point, as we must talk to the organ grinder next. I thank the District Courts Association for giving evidence.
I did have a short statement, but I am quite happy to go straight to answering questions.
I would like to start with a quick question about legal aid. We have heard that the Scottish Legal Aid Board will meet the demand for legal aid, whatever the level of that demand. However, the evidence that we have heard shows that solicitors who provide the services under legal aid have not had any increases in their fees for some eight or nine years. Surely that is wrong, given the fact that their overheads have been going up. Surely it would be reasonable for you, as the responsible minister, to seek a higher budget estimation to cover for future increases in those stipends.
That question raises a number of points, and I shall deal with them separately. First, there is the question of legal aid being a matter of demand. That is absolutely right. If there are applications to the Scottish Legal Aid Board that meet the criteria, and legal aid is granted, ministers are obliged to find the money to fund that. Let me make it clear that that is not cash-limited or capped. If the statutory criteria for granting legal aid are met, ministers are obliged to find the money. If the amount that is needed for legal aid exceeds the provision that has been made, that money will clearly have to be found from other parts of the justice portfolio, or even from outside it.
I think, minister, that we accept the history of legal aid costs, but we are looking to the future. The fact is that we have a straight line, as far as legal aid provisions are concerned, up to 2003-04. The fact is that you are adding work to the solicitors' burden by including such things as tribunals in future. Once again, I return to the point that surely, somewhere along the line, you must plan for an increase in solicitors' fees. Although I accept what you say about releasing money, budgets are about being honest and about ensuring that there is money to match the means. Some level of increase must be apparent over the next two or three years.
You are absolutely right that there are issues such as tribunals. As you are aware, in the Parliament, we have debated the extension of advice by way of representation to employment tribunals. The Convention Rights (Compliance) (Scotland) Bill will give an indication of which tribunals will be added to that. Also, the Adults with Incapacity (Scotland) Act 2000 will make a claim on the budget. We have not disregarded those matters and have assessed the likely impact on legal aid. The budget that we have put in place will cover those eventualities. Over recent years, planned expenditure has been greater than outturn. Provision in the current financial year is some £3 million above the outturn for the previous financial year.
What assumptions underpin the figures for the next three years? There is a small increase of less than inflation for next year. For the following two years, the budget is static in cash terms and actually goes down in real terms. Is the assumption that fees will not go up, that extraneous costs will not go up, that demand will fall, or a combination of those?
There are a number of factors. I have written to the conveners of the Justice 1 and Justice 2 Committees—and indeed I answered a parliamentary question on this yesterday—with regard to the fact that I have increased the grant in aid to SLAB to allow some investments that it has proposed to make. That increase, together with using money from the modernising government fund, can lead to savings. The proposals are spend-to-save proposals.
I have a final question, which is a change of tack, on the Procurator Fiscal Service. There is, without a doubt—
No, I will not—
Perhaps others want to pursue that matter, so I will be fair and back off.
The Procurator Fiscal Service is a matter for the Lord Advocate.
Are you saying that it is right that, for 12 years, the profession that has been delivering the front-line service and on which cases depend should not have any increase in budget?
I did not say that at all.
That is what you are doing. Your response to the budget questions says that there will be no increase in solicitors' fees and you have told us that there has not been any increase since 1995.
That is not 12 years ago for a start. I also indicated that there has been an increase in the money that is paid to solicitors. There has not been an increase in fee levels since 1995, but there has been an increase in the amount of money that is paid to solicitors through civil legal aid.
Let us be clear about this. You are talking about the civil legal aid bill that includes all the outlays. That is not money that goes to the firm of solicitors. The actual remuneration that solicitors get has been frozen since 1995 and will continue to be frozen in your plans until 2004. We have had evidence—I am not surprised by it—that that freeze is having an impact on the quality of solicitors who are delivering the service and that a number of firms are no longer prepared to subsidise civil legal aid.
I would need to be persuaded that all the increase in average case costs is entirely due to extraneous matters and does not in any way find its way back into the revenue of solicitors firms. It is also important to point out that roughly 70 per cent of legal aid expenditure goes on solicitors' fees, so any increase has implications for the budget as a whole.
That is the evidence that we have had.
I am aware that some of the larger firms are no longer dealing in legal aid. I look forward to seeing the detail of the evidence in the Justice 1 Committee's report on its legal aid inquiry. I have heard anecdotally that firms are no longer dealing with legal aid. It would be useful to get some hard facts and evidence on that and perhaps the committee has managed to gather that. That would be useful because, of course, it would be a relevant factor for the budget if firms were no longer dealing with legal aid.
Of course, the Justice 2 Committee does not get to do that now. You know my position on there being two committees.
I am sure that you can trust your colleagues on the Justice 1 Committee.
It is not that—it is just that we do not have the same information at our fingertips any more.
Although I cannot tell you in detail how many meetings took place, I have already indicated that the grant in aid to SLAB had been increased. That was done as a response to a submission from SLAB for additional resources to allow it to modernise its infrastructure and systems to deal with a significant increase in its work load and to improve the speed and accuracy of its decision making. SLAB put proposals to us and previously applied for funding under the modernising government initiative to help to advance an electronic delivery of legal aid. We have listened to that. There have been discussions. The answer that I gave yesterday to Maureen Macmillan sets out our response to SLAB's requests.
I could not tell the committees how many meetings there have been, because I have not participated in them. However, I know that the justice department is in pretty much constant touch with SLAB, not merely in relation to formulating the plans that are in the annual expenditure report, but in relation to the week-to-week management of the budget. The discussions with SLAB are full and comprehensive.
Can we be satisfied that the figures that were arrived at for legal aid administration costs, which are frozen from 2000 to 2004, and the costs for the legal aid fund, which will be frozen from 2001 to 2004, were arrived at with the agreement of SLAB?
As Mr Wallace said, there have been quite recent discussions with SLAB on the administration costs. Yesterday, we announced changes in SLAB's administration costs, which are no longer frozen but are on what I might describe as a gently rising line, with further investment from the modernising government fund outwith the justice vote to enable e-government transactions between SLAB and solicitors, which should reduce administration and fund costs.
What about the fund itself?
The responsibility for making predictions on the fund rests ultimately with the justice department rather than SLAB.
What is SLAB's position with regard to the figures that you have given? Is it content?
I have not asked SLAB, so I would not like to say one way or another.
The point must be reiterated that, if the figures are exceeded, we will have to fund the excess—there is no if and but about that. Over recent years, the estimates have not been exceeded.
The concerns that I have heard—for example, in the evidence that we received this morning—are that, in a reparation action, the pursuer will be allowed perhaps only one report by the board although the defender, which may be a health trust or board, will be able to commission two or three expert reports. Limitations are being put on pursuers' cases, based on financial considerations.
As you well know, properly and legally ministers cannot intervene in individual cases. That must be a matter for the board.
Would you be concerned if that was the case?
I would want to be provided with full details of the situation.
Let us return to the funding of the police and fire service. I recognise that central Government funding addresses such aspects as training and back-up facilities. What allowance have you made for training facilities for the police over the next two years? There will be many retirements in that time, so to maintain the police numbers that you aim for you will have to put in place a fairly significant recruitment and training programme.
Almost 12 months ago, we announced an increase in police spending of £8.9 million, which allowed the chief constables to start recruiting. Of that money, £1 million was allocated to the Scottish Police College at Tulliallan, in recognition of the fact that recruitment cannot begin at above-average rates unless provision for that is made.
I ask for the same arrangements to be made for the fire service.
Do you mean in respect of the police or the fire service, or both?
The principle applies to both, but I am asking about the police, as an example.
The money that local government receives for the police service is also increasing. Retirements pose some difficulty, as they cannot be predicted exactly, but we are conscious of the fact that they must be taken into account. The increase in spending on the police that is channelled through local government over the period of the spending review is significant. We are trying to predict retirements as accurately as we can, and we are discussing the matter with chief constables.
Do you feel that you are also covering for problems that are caused by early exits from the police by individuals who do not complete their training? Is there a retention problem and does that affect budgetary considerations?
I am not aware that there is any such problem, although the occasional person may not complete their training for some reason or another. I have received reports from different parts of the country and, over the past 12 months, I have visited police forces that are addressing the issue of recruitment in Glasgow, Aberdeen and Dumfries. I also know that the number of recent applications in Lothian and the Borders has been very encouraging. I do not perceive any difficulty in recruiting for the police.
I am concerned about the retention of police officers. Is it too early to comment on that?
It is too early to say, as the numbers are still coming through. I am not saying that one or two people will not drop out—I am sure that the completion rate is not 100 per cent—but the signs are encouraging. Perhaps Mr Gallie has additional information on the subject.
At the Scottish Police College, of which I am chairman of the board of governors, our experience of recent recruit intakes has been good and there has been a very low drop-out rate. The quality of our recruits has been extremely good.
I have two questions, the first of which is on the topic of young offenders. The budget document refers to placing children who are sentenced to detention by courts under section 205 of the Criminal Procedure (Scotland) Act 1995 in secure accommodation rather than in penal establishments. I am pleased that that provision is included in the document. Can you give any more detail of your plans to provide secure accommodation for young offenders?
I cannot give much more detail than is contained on page 28 of the big orange budget document. The service is demand-led and provision is made under the Criminal Procedure (Scotland) Act 1995 for children to be detained in secure care establishments. The budget line is continuous at £3 million, which allows the young people to continue their education while they are held in secure accommodation and provides them opportunities to address their offending behaviour. We think that it is important that there are opportunities for education while they are detained, and we want to ensure that no child who is sentenced to detention is placed in prison. Concerns have been raised in the past that that might happen.
The relatively small number of children involved is managed directly by the department, usually through assignment to secure schools such as list D schools. I will be happy to supply more information on cost and the number of cases, if that is of interest to the committee.
It certainly is.
I agree. It is only a relatively small part of the budget line, but it is not unimportant. The young offenders strategy deals with a range of issues, because we recognise that a disproportionate amount of crime is attributable to young men, in particular men between the ages of 16 and 24. We must address that issue and the whole social justice agenda, because sometimes patterns are set early in life, which is why we must tackle deprivation as well as criminal behaviour. I assure the convener and the committees that the Executive attaches considerable importance to such issues. They are a matter not only for the justice department; the education department has an interest in the children's hearing system.
It would be worth while to ensure that you are considering the right numbers, convener. The reference to £3 million for children is for the small number of under-16s who are sentenced to detention. The budget for young offenders in detention is contained in the Scottish Prison Service budget, for places such as Polmont young offenders institution.
I realise that you may not be able to give us an answer today, but can I ask you about the Scottish Prison Service? Last week, we heard from the Prison Officers Association Scotland and we examined the figures on the cost of prisoners. The association seemed to dispute your figures and suggested that they are based on actual capacity, not prisoner occupancy. I do not know whether you have had a chance to read what John Dawson said.
We base our figures on the cost per prisoner place, particularly when we set targets. I refer to the average annual cost of a prisoner place. The target for 2000-01 was £29,500 and the outturn was £28,500. To avoid a problem of definition, I stress that our figures are based on cost per prisoner place.
Are your figures based on occupancy or capacity?
Capacity.
It may help if I explain. For several years, the cost measure applied to the Scottish Prison Service, and to HM Prison Service in England and Wales, has been the cost per place available for use. That is the revenue cost of each place in a year, not the capital cost. That makes good sense as a managerial measure, because we do not know the occupancy rate from week to week or month to month. The target that has been set for the Scottish Prison Service since the early 1990s is a unit cost per place available for use.
In Kilmarnock prison, are the figures calculated on the basis of capacity or cost per prisoner?
The contract says per place available for use.
It is per place available for use.
I think that is right. If it is wrong, I will tell you otherwise.
The other source of confusion is what the revenue cost is per place per annum and what the net annual cost is—it is called the net present value—when the capital costs over time are taken into account. Mr Gallagher will no doubt tell me if I have the terminology wrong. There can sometimes be confusion because one is compared with the other. If you compare annual revenue cost, you must ensure that it is done the same way for Kilmarnock as it is for the public sector prisons.
It might be helpful if I explain that a little further.
What is the time frame for comparing apples with apples?
As soon as possible.
I raised this point with the minister several months ago. At question time he said that the accountants were examining it. When can we expect to have a level playing field so that we can compare the figures?
I accept that it has taken far longer than any of us anticipated, not least because the accountants want to ensure, before they put their name to anything, that the process is as thorough as it can possibly be. The best estimate I can give Michael Matheson is the summer.
I understand that the SPS was due to publish targets at the end of March or beginning of April. That was referred to in the document. What is the current situation on those targets?
I think that the targets have been published. I cannot remember exactly when, but I sent a letter to the committee. Measures and targets for 2001-02 were announced in parliamentary answer S1W-14582.
I think that it was circulated.
Will the minister give us more detail on where he expects the increase in running costs that the figures indicate to go? There are general headings but the document does not indicate how much is going where.
That is not the target. Table 1.16 in the annual expenditure report gives the direct running costs, which include staffing, maintenance, teachers and medical and dental staff as well as other current spending, which is prisoner-related costs such as food, clothing, bedding, payments made to prisoners and materials for workshops.
Where do you expect those revenue savings to come from?
Savings have been made in the year that has just finished, which amount to revenue of about £6 million. Much depends on the outcome of the current arbitration on attendance patterns, but £5 million to £10 million of potential savings were identified from the change in attendance patterns. It will depend on how matters progress.
Before I bring in Christine Grahame, can I clear up one point on the cost per place? Is that designed places? What happens if a prison is overcrowded, which is a term that we frequently hear, and which presumably means that it is accommodating more people than it was designed for? Does that affect the cost per prisoner place?
No; the cost is the cost per place.
Whether designed or not?
Whether designed or not, but I would want to check whether when a block is being refurbished, for example, places are taken out for the period of the refurbishment.
On the convener's specific point, if there are two people in a cell, that is still one place.
In other words, an overcrowded prison will cost more, because it is paying for more prisoner meals and so on. The cost per place will go up, but the number of places will not change.
The targets are the same.
Arithmetically that is correct. If there are more prisoners than places and costs increase as a result, the expenditure per place will be higher than it otherwise would have been.
Though the cost per prisoner might well be lower.
Yes.
I was going to follow up on that, but I think I am getting more confused. Perhaps it will be clear when I get to read it on the replay.
I will put to the minister what John Dawson said to the committee, which you have now clarified in part.
No. That figure may be per prisoner, but not per prisoner place.
I want to move on, as time is pressing.
I referred to that table in response to Mr Matheson's questions.
The average annual cost per prisoner place is £32,600.
That is correct.
I will put that to the side just now. The £12.5 million revenue savings are in a footnote, to which you have also referred. You said that £6 million of savings have already been made.
That was the revenue saving in the financial year that has just ended.
You project that there will be a saving from staffing of between £5 million and £10 million, which is a huge range. If it were £10 million, almost all the savings would be made from staffing.
It is self-evident that there is uncertainty. Much of that £5 million to £10 million range will depend on the outcome of arbitration and the timing of any changes in attendance patterns.
I hear that, but I do not take comfort from it because low morale in the Prison Service is leading to high turnover—staff are leaving. To use an emotive expression, people may be driven out by what is happening rather than take redundancy packages.
No, I think that the figure is about 100.
That is probably correct, although it might be slightly different—I do not know the exact number. The figure relates to staff who are needed to operate the present attendance patterns. If there were a different set of attendance patterns, a different number of staff would be needed.
I do not want to get into where you are with the discussions on attendance patterns, but if they are accepted, will you run prisons with fewer staff on duty? Will the staff work longer hours?
No. The proposition is that staff will be on duty when they are needed to be on duty rather than at times—
So there will be points in the prison day when there will be fewer prison officers than there are now?
Yes. For example, in one of our large prisons, the visit staff on the early shift come on duty at 6.15 am, but the visits do not start until 9 am. An attendance pattern that aligns more properly to need will mean that staff will come on duty when they are needed.
Another example is that far more work is now done on education in prisons, yet the existing, traditional staffing attendance patterns allow for the same level of supervision in halls, which might well be relatively empty because prisoners are off doing educational work. The new attendance patterns are intended to resolve such anomalies.
Will you reassure me on one point? I can see how the new attendance patterns might work in some instances, but if staff are to be brought in when they are needed, will you agree to split shifts or hotel-type shifts? If so, that would concern me.
That level of detail is a matter for management in negotiation and discussion with the unions. It would not be appropriate for me to comment on such a level of detail.
I appreciate that, but I have to put the question to you.
Many of those issues have been referred for independent arbitration. I would not want to speculate on the outcome of that arbitration. That would not be helpful.
You are right to say that. If split shifts were introduced and the committee examined the issue, I am pretty certain that I could give examples from every industry that has hotel-type patterns to show how turnover is affected. I would like you to come back on the issue at a later date, perhaps.
That would be appropriate.
I do not entirely agree that the minister cannot have responsibility for such detail. From the evidence this morning on freedom of information, it was clear that the minister has responsibility for the SPS as it is a non-legally defined body.
An undertaking has been given that as well as there being no compulsory redundancies, there will be no cut in cash wages.
So you want to have a revenue saving based on staffing, but we have too few prison officers at the present time and there will be no reduction in their wages. How do you make the savings?
It is estimated that there will be a need for fewer staff once the new attendance patterns are implemented. Over time, staff will leave and will not be replaced. Pending that, there is an undertaking—which few private companies would give at a time of structural change—that there will be no compulsory redundancies and no cut in cash wages. Those are important guarantees, which the Prison Service has given.
I thank the minister for his attendance.
Good afternoon. You might have noticed that the committee has been asking a lot of questions about the Procurator Fiscal Service. If you do not mind, I will ask a few questions on that. First, we heard evidence from the Procurators Fiscal Society, which welcomed the 30 new fiscal officers, but felt that they would not solve the long-term problem, which is the retention of experience in the service. How do you intend to address that?
That is a good question and a difficult one, in a sense. As has been said by other people, procurators fiscal do not grow on trees. One must acquire experience in prosecution, which one can do only by appearing in court. There is no quick way of getting a collection of experienced deputes from anywhere other than from the Procurator Fiscal Service. There is a means of training people at a high level, which is not found in other areas, but it is the development of specialist skills. The way in which one might deal with the question that Pauline McNeill puts is to ensure that there is a high level of retention of current deputes, because those are the people who are developing experience and those are the people who have experience. So far, the Procurator Fiscal Service has been able to retain a high proportion of its employees. I know that that is not a complete answer, but ensuring retention is the way forward.
It has been suggested by some witnesses that 30 new fiscals will not be enough. I put it to you—I have put this to others—that it is perceived that liaison between the police and the Procurator Fiscal Service is breaking down, because duty fiscals are not always available. That view was supported by the Procurators Fiscal Society, which felt that fiscals were under so much pressure that when a reporting police officer had to speak directly to a duty depute fiscal, often one was not available. How can that issue be addressed?
The suggestion, which I have heard before, is that 30 new fiscals are not enough, but one must come to one's best guess of what one can do, and set that against resources. Obviously, in an ideal world one would have hundreds of deputes, who would continually liaise with the police, but one must make a judgment. The judgment has been made that 30 new fiscals in the next two years will address substantially the pressures that are being experienced by the Procurator Fiscal Service.
The issue has been raised with me as an MSP. I will put it in stronger terms; it has been suggested—it is the committee's overall impression—that there are more and more pressures, and that we are reaching breaking point. We heard from representatives of the District Courts Association this morning, who told us that there is a problem with getting cases marked by fiscals, to the extent that if they do not find a diversion scheme for offenders, they are asked why they are going to court. That is alarming to the committee. I put it to you that there is more than just some pressure, and that there are breaking points in the system. I want to press you on this. If we do not have the correct number of new fiscals, are you willing to say that in future you will need more resources?
Absolutely. One of the purposes of being here is to discuss where we are going. At the moment, I do not understand that we are beyond breaking point. I accept fully that there are pressures and if those pressures become impossible, it is plain that we will have to continue discussions with Scottish Executive colleagues to ensure that more resources are given for prosecutions, to ensure that the best service is maintained.
Last week, Richard Stott, the president of the Procurators Fiscal Society, said, in answer to Gordon Jackson, that about 25 per cent more was needed in staff resources. Over the next four years, the budget will go up by 10 per cent. It does not sound as if he will be happy, does it?
He is negotiating for his society: a posture of happiness might not immediately fit in with his particular role. I was not entirely sure what he meant by an increase of 25 per cent. I was not sure whether he wanted 25 per cent more people or 25 per cent more on the budget. I was also rather unclear about where he got the figure of 25 per cent. I have a prejudice in favour of looking at evidence, but I did not detect any evidence in Mr Stott's view.
May I ask you where you got your figure of 10 per cent?
I do not have the calculation here with me, but it will have been done by the internal management as an assessment of their view of future requirements. That process is done on a business-plan basis; I do not understand that Mr Stott did his calculations on that basis.
Could further detail on the calculations be made available to the committee?
I am sure that it could be.
I will bring in the original culprit—Gordon Jackson—who seems to have recovered from his appointment with a dentist.
Solicitor General, I am slightly concerned about your comment on the posturing of Richard Stott. You said that a "posture of happiness" would not fit in with his role in the Procurators Fiscal Society. That comment suggested that he was not being genuine and that he is taking a kind of negotiating, trade union position. Richard Stott is a very senior procurator fiscal—until last week, I thought that he was part of the management. We are therefore entitled to assume that he is not merely posturing in some way and that he genuinely believes that that sort of money is needed. Are you saying categorically that he is wrong, that he is making it up, or that he has got his figures wrong? What is the position? It is not good enough to say that he is posturing because he is a trade union official.
It would be unfair to suggest that Mr Stott is not acting in a bona fide manner—he is. What I am saying is that he is representing a particular point of view. That is a posture in a negotiation. I am not saying that that makes him a bad person or that he is not telling the truth; I am saying that he has adopted a particular position. If one looks at his evidence, one sees that it is not a position that is based on a clear assessment. It is, as he himself said, a "gut feeling". One may call it a posture or a gut feeling, but whatever it is, it is not something that is precise and it is not something that has been fully costed. It is not something that he has worked through with the management team at the Crown Office and Procurator Fiscal Service.
I accept that—but you can understand the difficulty in my mind. What you said contained the idea that Mr Stott's position was only a negotiating position. It is hard for us to get to the bottom of the matter. For me, it was a culture shock to have the procurator fiscal at Dunfermline coming here as a trade union official and talking about the management. I am trying to understand what your opinion—and, I presume, management's opinion—is. Is Mr Stott merely wrong? Are his figures way off target? Is there a problem that needs a 25 per cent increase to solve it? Leaving aside the business of whether he was posturing, and considering just the facts, what is your position on what he said?
I do not agree with Mr Stott's suggestion that there should be a 25 per cent increase. I agree with the point that was put to me earlier by Pauline McNeill—that there are pressures within the PFS and that the way to deal with those pressures is, to some extent—but only to some extent—a question of resources. We are endeavouring to strengthen current resources by, among other things, bringing 30 deputes in over a two-year period.
I want to ask about the experience of the fiscals that you hope to bring in and the deputes that you have just spoken about. Evidence that we have heard in committee and from outside leads us to believe that experience will not be sufficient. What kind of training do you intend to put in place for the solicitors who are coming in? I understand that they are not only young solicitors, but that some of them are quite senior and have a lot of experience on the other side of cases.
Having trainees is one way in which new blood comes in, but we are also bringing in people who are experienced court performers—if I may put it that way. One of the very strong elements that one can find in the Crown Office and Procurator Fiscal Service procedures is those offices' training. If one looked at training throughout the private sector, I suspect that one would generally not find there the same coherent structure of training or the same importance being attached to training as one finds in the PFS. One of the areas in which the service functions very efficiently—coming from outside the system, I have been impressed by this—is its ability to train. Many attacks are made on the fiscal service, but I do not feel that attacks on its training can be sustained. If Mrs McIntosh is interested in a particular detail of the service's training, I will certainly endeavour to obtain it for her.
I am particularly interested in the marking of cases by fiscals, which cannot be book-learned. I understand that that skill is learned by experience. Consequently, the job ends up being done twice, because the person who is helping with the training—taking the sit-by-Nelly approach—is doing that job instead of doing casework. That could present a difficulty.
It is correct to say that there are differences between the salaries that people can earn in the fiscal service and the salaries that they can earn outside it. People who are attracted to the fiscal service are not, from the very beginning, doing it for money. They are not saying, "I am going into this business to make the equivalent of what I would make in private practice."
I want to follow up on the issue that Gordon Jackson raised, on the negotiations—I think that that was the term that you used—with the Procurators Fiscal Society.
Do you mean me, personally?
I imagine that someone in senior management in the Crown Office would conduct the negotiations.
It might be better for Mr Rosie to answer that question, as he is the senior manager who gets involved in such discussions.
We have a standing set of arrangements for discussing all aspects of the department's business and, in particular, the interests of staff with the trade union side. Our mechanism is called the general purposes committee, which I chair; the committee provides a forum for discussions at any time of the year. Either management or the trade union side can initiate discussions through that process. In addition to that formal mechanism, there is a host of informal discussions and exchanges of letters on all sorts of subjects.
I want to follow up on an issue that was raised by the Solicitor General in response to a question by Pauline McNeill about pressures on the system. The police may initiate a crackdown on a specific type of crime in an area, which, naturally, has an impact on the services of the local procurator fiscal office. The safer Scotland initiative is an example of such a campaign and I hope that, if it is successful, it will have an increasing impact on the Procurator Fiscal Service.
As I understand it, liaison takes place before the start of a major campaign that is being advanced in a specific police area, as the police are aware of the point that you raise. If the police act, and their campaign is successful, there will be a follow-through to the Procurator Fiscal Service.
Let me give you an example. Central Scotland police has a safer Central campaign, which has been running for the past couple of months. How does the local procurator fiscal prepare for a potential increase in work? Does the Crown Office provide additional resources, or are other cases moved to the side?
I understand that, rather than pushing in a lot of additional resources, people will prepare for dealing with a specific type of campaign—for example, a campaign that is drugs-related or knife-related. The speed of the court continues at the same rate, irrespective of whether more accused persons come into the system. One considers the particular areas in which evidence is likely to be required and the problems that have arisen with similar types of case in the past. One then makes one's staff aware that those are the sort of problems that will be coming their way.
You said that the local procurator fiscal might prepare for a campaign by considering the campaign issue, for example drugs. I am conscious that they would have to do so while still dealing with all their other work. We have been given clear evidence that procurators fiscal are under pressure as matters stand. I take on board your statement that you do not provide additional financial resources, but if you do not provide additional financial or staffing assistance, I imagine that some work will be pushed to the side and not completed, or not given the amount of time that it deserves.
I take your point. I may have misled you to an extent.
You said earlier that the system was not beyond breaking point, but situations have arisen in recent weeks in which major trials have been timed out because, apparently, procurators fiscal and others have not come up with the material on which to base a case. One such case arose last week, when a 16-year-old went free. A similar case arose a few weeks earlier in Paisley and we have also had both the Chhokar and Collie cases.
I am absolutely convinced that the perception exists that we are under too much pressure. I would be extremely worried if people within the service were to tell me that the pressure was too great, but that has not happened thus far.
I accept that, but the fact is that such situations, which are recognisable, are developing now and will continue in future. I would have thought that problems that we know will arise should be recognised when we are budgeting, but I have a feeling that they are not.
Let me make it clear that I am not saying that a lack of experience in the service creates a problem in service delivery. I am saying that it is difficult to acquire people who have the appropriate level of experience.
That is the point. If you pay experienced people a little more, you will have to press for an increased budget.
If you can point me to a number of people who will come back into the service for a particular sum of money, that would be interesting to know about.
I shall try.
I have a question about consultation. Last week, when I asked Richard Stott of the Procurators Fiscal Society
The assumption in that question is that we should have representation from the trade unions in setting the budget of the Crown Office.
I was asking about staffing levels.
It is certainly correct that discussion about staffing levels takes place. I do not know whether that discussion has taken place with Mr Stott; I assume that what he says is correct. Mr Rosie may be better informed about whether there has been a specific discussion about that, so I shall ask him to respond.
I am trying to recall, but I do not think that I can, specific representations from the Procurators Fiscal Society on staffing levels, as opposed to pay and conditions.
Richard Stott said that the society was
I can confirm that, as I have explained to the Justice 2 Committee, the bidding process does not formally include a request for views on staffing from the union. However, I have also said that we have close general liaison with the unions and are well aware of their views about general resources for the department and the effect that they have on pressures and pay, which can impact on individual staff. In that sense, I do not think that there is any question of a lack of understanding of the Procurators Fiscal Society's position. I am quite happy to consider the point that you are making, which I read as a question about whether there should be greater formality to the invitation to seek the views of the union in that process.
My feeling is that there are bad relations between the Crown Office management and the Procurators Fiscal Society. That situation must be resolved, as you are both on the same side. The society has not had due input. Whether you take account of the society's views is another matter, but it was not specifically asked for its views.
I think that you are referring to the criminal justice liaison group that the Crown Agent attends.
That is it. Sorry.
I am not sure that I can answer your question in detail, as I do not have knowledge of that group's agenda or discussions. The group exists to allow discussion between the different justice agencies on a range of subjects, including resources and pressures. I am sorry, but I am not familiar with its discussions. Perhaps Dr Brown can assist.
I can probably assist a little, although I cannot give specific figures. You asked about consultation with the group over the budget process. The group provides the Crown Agent with a forum within which to learn what other agencies are doing. We seek at all times to structure the way in which we go about things and to organise ourselves to ensure that we play our part in making the system as a whole efficient. The Crown Agent brings from that meeting, and others, knowledge of what other people are doing, which can be fed into our planning process. However, there is no formal consultation with the group about how much money we should get, which may have been what you were suggesting.
No. I understand that the group has a practical input, similar to that of the procurators fiscal, and relates what it is like on the ground—the problems and situations that exist—so that you can think about that when you consider funding. That may be a simplistic view. Did the liaison group ever meet to discuss the budget process with the Crown Office?
I do not know. We can get back to you on that.
That is an important question. I have a couple of other quick questions.
Very quick, please.
Phyllis Hands has 25 years' experience of district courts and her view is that procurators fiscal are appearing before those courts undertrained. The Solicitor General talked about applauding the training system, but the evidence that we received from Phyllis Hands suggested that junior procurators fiscal are working in the district courts.
The other day, as I was considering various observations that have been made of the way in which prosecution is obtained in Scotland, it seemed to me that the notion that the system is cracking up has been advanced as an argument for the past 10 years at least. It is a perennial feature of the system that people make that complaint.
With respect, Mrs Hands believes that the decline in the delivery of prosecutions in the district courts started six years ago and has been getting worse. As she has 25 years' experience, I am inclined to put some store by what the lady says.
I am not diminishing the point that Mrs Hands made, nor her standing; I am saying that that criticism has been made many times in the past.
Not always. Mrs Hands conceded that that was not always the reason. Nevertheless, she is hearing from procurators fiscal that that is what is happening in some cases to clear a desk.
If that is happening, I would be keen to see any evidence that she has. I have heard the point being made frequently, but I have never been provided with the evidence to back it up. The contrary state of affairs tends to emerge whenever the facts of a case are investigated, and the conclusion is usually that diversion is the appropriate solution in individual cases. I know that this is a difficult issue on which to form views in the absence of evidence, and I understand why you feel disquiet about it. However, I have seen no evidence to suggest that action is required in that specific area.
You could acquire evidence of time-barred fines.
Yes.
That is a fact. Perhaps such evidence could be brought to the committee, for us to decide whether the argument stands up.
We will stop there. I thank the Solicitor General and his colleagues for their attendance.
Thank you.
The clerks have a pretty good steer as to which items we are interested in, concerning item 3 on the agenda. I invite members to e-mail the clerks with any specific items that they feel should be included in our draft report, which we will consider at our next meeting.
Meeting closed at 13:00.
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