The third item on our agenda is consideration of the financial memorandum of the Criminal Procedure (Amendment) (Scotland) Bill, which was introduced on 7 October by the Minister for Justice.
We are happy to move straight to questions.
Can a further breakdown of the £150,000 to cover judicial support costs and information technology costs in the Scottish Court Service be provided? Why will that expenditure be incurred only during the first two years of the new system?
We assume that initially the introduction of mandatory preliminary hearings will require additional judicial and staff manpower, because for a certain amount of time we will run the hearings in parallel with the existing system. Because the efficiency benefits of the new procedures will take time to be realised, the extra resources will be required for about two years. By the end of that period, we expect that the costs will generally be recoverable, because the court will be operating more efficiently.
Why will the expenditure be incurred only in the first two years?
We must make the investment now, but we expect to recoup it. We are seeking additional resources for only two years. Thereafter the costs will be recovered through efficiency gains within the organisation.
Are there potential savings that you can identify?
If the court is running more effectively, we expect that we will be able to divert resources that are currently being spent on first-instance crime to other areas of concern, such as the court of criminal appeal and the civil courts. The Scottish courts operate both a criminal and a civil jurisdiction. When judges are dealing with criminal cases, they are not available to hear civil cases. If we can make the criminal side of the court's business more efficient, we can release judges to do civil work.
Given the many changes that the Scottish Court Service is undergoing following the introduction of the Vulnerable Witnesses (Scotland) Bill as well as other legislation, how has the SCS been able to identify the specific costs of the Criminal Procedure (Amendment) (Scotland) Bill?
We have examined those elements that will be required to support the running of the mandatory preliminary hearings that the bill establishes. That is the source of the costing.
Will the additional preliminary hearings have cost implications for the SCS, because of the need for extra staff, additional usage of courts and so on?
Yes. Those costs are included in the figure of £150,000.
Will there be additional costs as a result of implementing this bill and the Vulnerable Witnesses (Scotland) Bill at the same time?
Not particularly. There is the potential for slight savings because of the overlap between the two bills. As members will recall, the Vulnerable Witnesses (Scotland) Bill provides for the court to consider the need for special measures. In the absence of the Criminal Procedure (Amendment) (Scotland) Bill, the court would be required to hold a procedural hearing prior to the trial to determine whether special measures were required. Once the Criminal Procedure (Amendment) (Scotland) Bill is enacted, we will be able to combine the two hearings. The hearings may take slightly longer than the average, but I hope that over time they will be able to dovetail and run more effectively.
The policy memorandum makes some fairly strong claims about inefficiencies in the court system such as trials' having to be put off and witnesses' failing to turn up. Those levels of inefficiency look costly, although the costs are not quantified in the policy memorandum. Given that the measures that you are taking are supposed to eliminate or at least significantly reduce those inefficiencies, I had anticipated that significant cost savings would be identified in the financial memorandum as a result of the elimination or near elimination of poor practices. However, there is no quantification of such savings and your evidence is on the additional costs of introducing this additional procedural measure. Is it not feasible to identify the cost savings as a result of driving out inefficiencies or bad practices?
We could give you an estimate of the figure, but it would not be a realisable estimate. It is not a cost saving but a resource saving. We will move from a situation where the court currently has to have what are in effect preliminary hearings on the date that is set down for trial. The issues that the preliminary hearing is intended to address are currently being dealt with on the trial date, to the inconvenience of the victim and witnesses. We can translate that saving in time into having judges available to do other things. That is where the saving will come.
In most areas of industry and most undertakings where there are examples of such inefficiency it is incumbent on management—whether in this case it is through the Court Service or through the judges, who I presume have a significant role in the day-to-day, hands-on management of the issue—to find effective measures to drive out inefficiencies and poor practices. I assume that that is the intent behind the bill, but we are discovering that the proposals may cost more than the current arrangements. The changes may well lead to a faster or more effective prosecution of cases; it is suggested that it will allow you to prevent backlogs and deal with the 25 per cent increase in the number of cases over the past five years. However, there is no seriously radical management effort to deal with those forms of inefficiency. I would have thought that to be effective any measures would need to control some of the professional practices of the people most closely involved.
Yes. I think that your assessment is right. This is a fairly radical approach, which is why Lord Bonomy's inquiry was set up in the first place. However, the delivery of the potential greater efficiencies in the system depends on a number of players co-operating. The Court Service will have a responsibility, as will the Crown Office and the defence. A change of culture is needed to deliver the maximum savings. We think that the bill will introduce improvements in the way in which business is conducted. We think that it will introduce improvements in the service that we give to victims and witnesses of crime, because they will be able to be more certain about when their evidence will be led. Those are tangible benefits, which we want to realise.
Yes, but I am still not sure that you are answering my question. If in the past the way in which judges, advocates and solicitors have worked and the way in which the criminal courts have been organised have delivered a significantly sub-optimal service, in which the process has failed to take place for one reason or another over a period of time, changing the dates of the procedures will not deliver the kind of savings that changing the professional practices of those groups and introducing tighter mechanisms and real penalties for inappropriate behaviour might deliver. Was that considered? Did you consider going beyond Lord Bonomy's proposals, which are fundamentally procedural, by introducing an effective system of management of the cases, which would drive out inefficiency and poor practices. The proposals will exercise some limits, but they will not prevent from happening some of the things that are pointed to in the policy memorandum.
I understand what you seek to achieve, but it is important to reflect on the fact that the justice system is not a managed system in the same way as a business is run. There is a balance of interests within the justice system. Constitutionally, it is accepted that the different parties have certain roles to play. That imposes limits on what can be done in a management exercise. For example, it is not possible for the Court Service to tell the Crown in what way it should bring its cases to court, nor is it for the Crown to tell the defence how it should defend a case before the court.
I will come back on this one more time. I accept that special circumstances relate to courts and that one cannot necessarily expect judges to come forward with reports that are the same as those that senior managers in industry might be expected to produce. However, the Finance Committee is faced with a set of proposals to deal with what is manifest system failure—according to the policy memorandum—that in practice delivers no savings and suggests that there are relatively marginal but nonetheless real requirements for additional judicial time and more money for lawyers to address the failure. That seems to be a questionable set of principles to be putting forward and I would have hoped for more.
As I said, we could give you figures on the judicial resources that we expect to be released, but those are not realisable financial savings because we think that they could be deployed in other matters.
Will financial savings ever come out of the proposals?
There could be financial savings if we could stop the number of cases that are coming in and if we could stop the growth in the number of cases of serious criminal offences. However, I am sure that the committee will have heard evidence on the justice budget about the effort that the police are making to target serious criminal offences and to tackle drug offences. That will generate more business for the courts in the future.
I suppose that I should begin by declaring a potential interest, in that I am a member of the Law Society of Scotland, but I do not practise in this area and sincerely hope and intend not to see the inside of any High Court of Justiciary, except perhaps in the role of a spectator. I very much agree with the bill's aim, which is excellent, but the acid test will be how it operates in practice and, in particular, whether a different culture starts to grow in the minds and practices of defence and Crown advocates and everybody else involved.
The £500,000 a year is roughly the cost of deploying two to two and a half extra temporary judges in the system. The £150,000 is a combination of staff costs in support of the judiciary and our investment in IT.
Is the cost of the extra judges based on an estimate of the total time that will be taken up in High Court of Justiciary business in relation to the new preliminary hearings? I am referring not simply to the preliminary hearing, but to adjournments and alterations—to which proposed section 72B refers—where the PH does not proceed, where there is a discharge or where there are Heinz varieties of extra new work loads. Is the £500,000 based on a prediction of what the extra work load will be with the new procedural creature inhabiting our justice system?
The amount is based on a broad estimate of what we think the level of business will be initially. At its simplest, it allows us to run the preliminary hearings five days a week in Glasgow and Edinburgh. In discussion with the Crown, we are currently working up the model of how the procedures will work. The precise level of business will depend on the number of hearings and on case levels, but that is as close as we can get at the moment to estimating the judicial costs.
I would not criticise the methodology, but can you share with us the computation of your estimate, because we are facing a problem where there could be a huge range, and one could argue for a very low figure or a very high figure of preliminary hearings, and therefore extra costs? Can you share with us the computation—not today, if you do not have the detail with you—because for posterity at least it would be useful to see how you thought the system would operate before it came into effect?
Sure. We can let you have the detailed breakdown.
Do you agree that there is an urgent requirement to apprise the public at large of the many facets of our hugely expensive legal system, to rectify the public perception that the system seems to be operating mainly for the financial benefit of the legal profession and not for the victims of crime?
Yes. As an organisation we are working closely with other partners, such as Victim Support Scotland, to try to ensure that the way in which the courts operate provides a better service to victims. We are doing that in a number of different ways.
I have questions for Douglas Haggarty on the Scottish Legal Aid Board. I see from annex 1 of your written submission that you have additional costs of £1 million in the first year or two. I know that you list assumptions in the written report, but could you give a bit more detail on how you arrived at that figure? Annex 2 lists savings of £1.25 million. Are you confident that the savings will be achieved over the first two or three years? It would be useful if we had more detail on how you reached those figures.
The costs are contained in annex 1. We identified various areas where we thought the proposals would impact on the legal aid fund in one way or another. We split the figures into costs and savings, and you will see that those main headings were further broken down. The main cost will be just over £500,000 for mandatory preliminary hearings. The main cost to the fund is paying for the time of solicitors and counsel, which is a fairly heavy cost. Managed meetings could involve several hours of solicitors' and counsel's time. Although at present such meetings take place in some cases—we estimate that they take place in up to a third of cases—in future they are likely to take place in all cases. There are also lesser costs, about which various assumptions are made.
You are quite confident that the savings will be achieved and that the profession will not find other ways of ensuring that the money can be claimed, but I am a bit cynical about that. Often, when these kinds of things happen and there is a balance between extra costs and efficiency savings, the extra costs occur but the efficiency savings never materialise. I wonder whether the system will be so efficiently run that savings will materialise. Are you confident about those savings?
Yes. One can never anticipate everything that is going to happen. The reason we approached the costing in the way that we did is that we know there will be additional costs. The savings depend on efficiencies, such as making information available to the defence earlier and having fewer adjournments, and on court timetabling. We know that the bill team—which is largely the former review team—is taking those matters seriously, and that people are working on court timetabling, the availability of information and greater communication at an early stage between the Crown and defence, which is a good thing. Even the transfer of business to the sheriff court will result in savings. If a reasonable number of the adjournments can be cut out, and we can be certain that a trial will proceed on a particular day, we will not have solicitors and counsel sitting around the court waiting for something to happen. Those are the costs that the fund picks up, and which we are quite confident will be reduced.
So basically all the savings will come from reductions in fees to solicitors and counsel.
Those fees, for attending court, for preparing for that or for doing written work, are the main cost to us.
I am interested in building on some of the comments that the convener made to see whether we can identify who is responsible for holding down and driving down costs in the Scottish Court Service, the Crown Office and Procurator Fiscal Service and the Scottish Legal Aid Board. The witnesses may respond in any order.
As chief executive, I have the responsibility of ensuring that the work of the Court Service delivers best value and that we achieve value for money in the way in which we use the resources. However, the work of the courts is an interplay of different agencies and different approaches and, from our perspective, it is very much a service operation. My control is limited to the courts' staffing and the accommodation that is provided in the courts so, although I can drive down costs within that parameter, the attitude of the defence or the way in which the Crown prosecutes a case is a matter for others.
Do you have access to consistently stated comparative year-on-year data that allow you to monitor that?
We do not have access to data that allow us to monitor the performance of defence agents and the Crown.
I am talking about financial data on the overall cost of the Scottish Court Service.
I have such data only for the Scottish Court Service element.
Is there a perpetual annual increase in the overall cost—does it rise inexorably every year?
The cost has continued to rise year on year, but we are coping with increases in demand on different levels and requirements to provide different kinds of service, such as the requirements that will follow from the Vulnerable Witnesses (Scotland) Bill. That information is available in the justice budget and in our annual report, which was published last week.
As a community, are you and your colleagues in the Crown Office and the Scottish Legal Aid Board held to account on your efforts to control and drive down those costs over time?
That is dealt with as part of the Justice Department's overall approach to the business. We are accountable to the Minister for Justice for the way in which we deliver our services. The Crown Office and Procurator Fiscal Service is answerable to the Lord Advocate.
Is it fair to say that, in the circumstances that you are describing, the people who make the key decisions that incur expenditure, who are primarily judges and lawyers, have no budget management responsibilities?
That is true.
Is that a satisfactory and business-like way of operating the service, or does it necessarily lead to some of the problems that you highlight in relation to the policy memorandum?
That comes back to the point that I made about the way in which the criminal justice system works and whether it is necessary to get a balance between the decisions that are taken. It would be argued that a judge should not be in the position of taking a decision on an individual case on the basis of what it would cost to run. If a decision is taken to prosecute a case such as the Lockerbie case, which was the most expensive case that we have ever prosecuted, we have to find the resources to enable that to happen.
Whatever resources are necessary.
That is right.
There is no management attached to that.
We manage the resources that are put in to ensure that we get the maximum value. There was very careful management of the resources that were committed to the Lockerbie case. The judge dealing with a case does not exercise budget control; the judge does not stop proceedings on the ground that an expenditure limit for that case has been reached.
Are there any incentives in relation to the way in which key decision makers make decisions that would assist with the process of budget management?
Decisions are taken in respect of the attitudes of the court on sentencing and the application of sentencing discounts—for example, recognition might be given to pleas, which can have an influence on the total cost of running the system. The Crown Office and Procurator Fiscal Service might want to express a view on what it is influenced by in running cases. To a certain extent, the attitudes that SLAB takes to applications from the defence can have an impact.
The position of the Crown is rather different in the sense that the independent judiciary is not within our budget, so we are accountable for our expenditure in a clearer way. It is core to the management of all our work that we make prudent and appropriate use of resources.
Fergus Ewing has a question on baselines.
I have two points, which are for Mr Haggarty initially.
Yes, there is. The number of indictments does not reflect the number of accused. Occasionally, an indictment involves more than one accused person. We worked out our figures on the basis of the accounts that we will receive. There might be only one indictment, but there could be two sets of solicitors and counsel and two accounts. That has been factored in. We are using a figure of 1,667 accounts; the smaller number reflects the number of indictments.
Following on from the questions that I asked John Ewing, are your assumptions about the volume of business—the number of preliminary hearings—the same as his?
We have calculated our costs on the basis of the figures that we have just discussed. I note that, according to the financial memorandum, the number of cases proceeding to the High Court has increased, but I know no more than what I have read.
Before making your computation and setting out your assumption about the additional costs that the preliminary hearings would involve, you did not see the assumptions on which Mr Ewing's calculations were based.
No. I have seen the figures and we have discussed the matter with the Crown Office and Procurator Fiscal Service and we have discussed it with the Scottish Court Service, but I have not seen the assumptions on which the Scottish Court Service proceeded.
Perhaps Mr Ewing could share those assumptions with you as well as with us, as that would allow us to tell whether we are all working on the same assumptions. That might be sensible and might throw up some other pointers.
SLAB has indicated that its submission might underestimate the savings and overestimate the costs. I want to check that, on the second page of your submission, you were saying that the transfer of solemn cases from the High Court to the sheriff court will be a saving, not a cost, because the relevant paragraph of your submission almost implies that that will be a cost.
Yes. The broad saving is the reduction in average cost that the transfer from the High Court to the sheriff court will produce.
Your submission states:
Yes, that is the total cost.
You suggest that that cost will exist for only two years. Will that not always be a cost to SLAB?
Those costs will continue, but the savings should increase.
You think that the costs that will be incurred will kick in before the savings kick in.
The costs will definitely kick in before the savings do.
Why is that, if the system is going to be more efficient?
I imagine that, at least for the first financial year, the two systems will run side by side, which will mean that we will certainly not achieve the full benefits; in fact, one would anticipate problems at some stage.
I also want to ask about the payments to counsel to remain available for fixed trial diet, which amount to a cost of £100,000. Does counsel not remain available for fixed trial diet at the moment?
That would not happen at the moment. In fact, I indicate in our submission that, under the current feeing arrangements, counsel—and, indeed, solicitors—would be paid only for work that has been done.
So the new system would allow them to be paid for work that has not been done.
The idea is that, if counsel was about to start a trial on a Thursday, they would keep themselves free on the Wednesday to start on the Thursday. Those ideas have to be discussed further, but, instead of considering our own small corner, we consider—and, increasingly, we all consider—that if significant savings to the courts, the witnesses and everyone else involved can be made from the trial proceeding, which can be achieved by ensuring that counsel is available, broadly speaking that would be good.
Who is responsible for examining the way in which counsel is paid? Mr Swinburne has already mentioned the public perception that it is a bit of a gravy train. To be honest, it does not sound terribly efficient to pay £1,000 to £100,000 a year for people to make themselves available in case they have to be at work and to assume that everybody works in Edinburgh so that, if a counsel is based in and attends court in Glasgow, he or she gets allowances that assume that travel, subsistence and accommodation are attached to that. Who is responsible for examining those costs?
All the provisions are contained within regulations, which are laid down and which the board applies. The current regulations date from 1989 and the current table of fees for counsel was prescribed in 1992. We apply the current system, but discussions are going on with Faculty of Advocates on what are called graduated fees—a system that England has—which would be a different structure of feeing.
We live in an unequal society—its inequality brought me into this arena. The problem of the gravy train and the vast amount of expenditure with which the legal profession is running away could be solved just like that by doing to the legal profession what is done to my generation: means testing. Once lawyers have earned a certain amount of money, thereafter they should be paid only 50 per cent of their fees. That is a lot better than what happens to my generation: if we have a few bob put aside, we get means tested and get no benefits. Some form of means testing might be the only radical way in which to solve the problem of the gravy train running away with all the finances that could be put to better use than paying lawyers well in excess of £100,000 a year in legal aid fees.
I am not sure that that was a question. Perhaps we can move on.
My question is for Norman McFadyen and Keith Connal and builds on the convener's approach. Norman McFadyen said that the Crown Office has had substantial increases in expenditure. In your written evidence, you say that you are making
Our assumptions are the same as those that the Scottish Court Service made. As far as preliminary hearings and the work that goes on around them are concerned, we assume that it will take the first two years of operation of the new legislative regime to see the sort of efficiency that would absorb some of the additional work. The slight difference for us is that we do not consider that the efficiency of the new court will necessarily absorb all the additional work for the Crown. That is because there will still be a permanent need for the Crown to do much more preparation and front loading and to co-operate much more with the defence. There will be preparatory work before the managed meetings, which were mentioned earlier, and for the preliminary hearings. There will also be more work involved in making evidence available to the defence and in everything else that goes with operating a more efficient court.
In your submission, you refer to the two-year period, which is clearly mentioned in the financial memorandum, but you also say that the bill
Sorry, I did not understand the question.
The assumption is that
That is culture change in the broadest sense, but it will be more tangible than that. To put it bluntly, we seek far less wasted court time. Wasted court time costs not only judges' salaries, but prosecutors' salaries and witness expenses, as well as inconvenience to the police and everything that goes with that. The bill proposes a system in which cases will not be called for trial unless they are ready to be. As Lord Bonomy found, and as anyone who goes around the criminal courts sees daily, cases come in for trial and do not proceed all the time. Achieving that reduction in wasted time will take a change in culture, but the bill will drive that change in culture. People will need to buy into that change. Of course they can obstruct or resist the change, but it will be more difficult for them to do so in the new system, because the court will have much more control, will fix when a trial is ready to proceed, will question counsel about whether they are ready and will expect us on the Crown side to be much more prepared and to ensure, as far as we can, that the defence is better prepared to go to trial.
Kate Maclean made the point that it is clear to the committee that there will be increased costs, but less clear where there will be identifiable efficiencies and the commitment to see them through. In your submission, you say that once the two-year period is over,
Do you mean to ensure that savings are made?
Yes. The Crown Office and Procurator Fiscal Service does not have the burden of the judge as it is not completely independent from the budget process.
We will monitor the performance of our staff and units closely. We will also monitor along with the Scottish Court Service general management information, such as information on the progress of cases, how much business is conducted through the courts and the level of adjournments. We are working with the Scottish Court Service to develop the core of management information that it will be necessary to measure in the post-bill world. A lot of that is common to us and the Scottish Court Service.
Would not it have been more transparent for the public if you had given a range of possible efficiency savings? You couch the statement using the word "should", but then give a clear figure.
Perhaps that "should" was a slight understatement—the prediction was as confident as we could make, but the situation may turn out to be better. All the witnesses are saying that we may be understating the realisable efficiency savings. However, we are all conscious that the volume of work in the courts that deal with serious cases—the High Court and the sheriff and jury courts—is increasing, which will undoubtedly mitigate the savings. The other side of the coin is that, without the legislation, the system, which is unsatisfactory at the moment, would only become more unsatisfactory because of the growth in the volume of business.
The IT costs are substantial. Will the new IT system be dealt with internally or will there be external procurement?
The new IT measures will be provided as part of our existing IT programme—the future office system programme. In essence, the new measures are a part of that programme that we had to put on ice because, although we received significantly increased funding, we had to concentrate our IT efforts on the bulk work, which is on the summary side. To put that into context, the number of solemn cases with which we deal is in the low thousands, although the number varies depending on whether one measures the number of accused or the number of cases. However, on the overall volume of business, we receive more than 300,000 reports in a year. Our new IT system is being rolled out only for the summary business, although we had plans to apply the system to the solemn side. We have now tweaked those plans in the light of the Bonomy review.
That is a very expensive tweaking.
We have not tweaked the overall system; we have tweaked the plans that we had to put on hold. In fact, we are doing more than tweaking; as a result of Lord Bonomy's recommendations, we are making significant improvements to what we might otherwise have done. Our IT system roll-out would have stopped at the point at which an accused appears on a serious charge—IT systems are used after that point, but they are not particularly sophisticated. If we are to manage witnesses, documents and disclosure more proactively than we do at present, we need to introduce the solemn phase of the future office system.
Will the new system be managed internally through the existing contractor or staff?
We are discussing the specification with the existing contractor. I am cautious about saying more than that, because commercial issues would be raised.
Will the system be able to accommodate other IT developments that the committee has heard about, such as the systems that will be needed as a result of the Vulnerable Witnesses (Scotland) Bill? I understand that those systems are different and will involve cameras and other equipment. Will your new system link in with IT systems that are required as a result of other legislation?
Our new system is not particularly relevant to the use of cameras, video equipment and other equipment of that nature; it is about case management and generation of documents. To an extent, our system is about storage and management of documents, but it is not related directly to the aspects that you mention.
Your submission states that £830,000 will be required for the new system, but you say that you are in the early stages of developing it. How did you arrive at that figure? Given that you are to enter into discussions with the contractor about the potential cost of developing the system, have not you just given the contractor the bill?
No. We have costed the roll-out of the future office system for the solemn side, but the system that we are now considering has a slightly different focus and is probably not quite as all-singing and all-dancing as we might have proposed. Keith Connal will correct me if I am wrong, but the figure is within the earlier overall estimate of what we might have spent on the development of the system for the solemn side. The figure is an estimate—it had to be an estimate—but it is reasonably well-informed because we have done a lot of scoping work on the development of the future office system on the solemn side.
To clarify, although we accept that the contractor has, to an extent, seen the estimate, I point out that we could not have hidden that estimate in this process. The estimate of £830,000 is £700,000 plus VAT and is based on the cost of developing, testing and implementing the software and integrating it with existing systems. That estimate is not a commitment to pay the contractor that sum.
To pursue that point, the first thing that puzzles me about the figure of £700,000 plus VAT is that Mr McFadyen's written submission of 29 October states that the money is to
It is done partly using existing software and partly without using software at all, which is what makes the process expensive. The difference in the post-Bonomy world is that, according to the recommendations, which we generally accept, witnesses' statements should be disclosed to the defence as early as possible. At present, statements are not routinely disclosed to the defence, although the defence has a list of the witnesses, whom it can interview.
I understand what you say, but two points strike me. First, the work is being done at the moment—
Sorry, but the work is not being done—
The prosecution generates statements; sharing them with the defence seems to me to be a matter of pressing an e-mail button or photocopying. I cannot understand how the cost of software will work out, at the least, at about £500 for every indictment. You say that, in some cases, work is done later—
The work is not done at the moment. Statements are not provided to the defence.
Not routinely.
Exceptionally, some statements may be provided on request in special circumstances and at a late stage.
Why should it cost so much to provide a copy of a document, which can be done either by e-mail or by photocopying? Why should it cost £700,000?
The cost relates to the whole system for managing witnesses and documents. That system is not required only to provide statements to the defence, but to give a clear audit trail as to when those statements are provided. It is also about the management of witnesses and about ensuring that we have the most up-to-date information about their needs so that we can better manage their attendance at court. Those are things that we have developed better on the summary side—the volume side—but on which we still need to do a lot of work on the solemn side.
I understand all that, and you have obviously repeated the points, but I would like to ask one final question. The work that you are describing is part of a larger software programme—the future office programme, I think you said—that has been put on ice. Will any part of that £700,000 actually benefit matters other than those that we are concerned with under the bill?
The matters that the money will benefit are, in some ways, indirectly related to the bill, because they are related to Bonomy's recommendations, which underpin the bill. Not everything that we are doing in relation to that work is spelled out in the bill. The bill does not mention disclosure of statements or the point at which documents are provided, but it proceeds on the assumption that, unless those things happen, the new preliminary hearings will be nugatory effort.
I would like to go back and ask each of the three representatives when the last external value-for-money audit was carried out into each of their organisations.
Do you want to define what you mean by a value-for-money audit? We are audited annually—
That is a statutory audit.
Yes, and it also involves an element of looking at certain of our procedures and processes. There has not been an audit of High Court operations, as far as I can recall, for—
That is what I was getting at. Has there never been an external value-for-money audit—by the Auditor General for Scotland, say—into the workings of the Scottish Court Service?
As I said, certain aspects of our work are scrutinised by our external auditors, who are appointed by the Auditor General, but there has been no external audit of the operations of the High Court by the Auditor General since his role was established.
I put the same question to the Crown Office and Procurator Fiscal Service.
The same applies in our case.
And to the Scottish Legal Aid Board?
I do not move in such exalted circles, I am afraid. I tend to deal with technical matters. I know that we are audited every year and that there has, of course, been a review of legal aid, but that is the only extent to which I can be of assistance.
My concern is rather like that of Fergus Ewing. We read about the capital expenditure of £830,000 and it seems to me that that is money for modernisation of the system, which may be extremely desirable but is not necessarily a cost incurred by the introduction of the bill. It could be appropriate to make a claim for improving the software on the Justice Department's capital budget, but is it really appropriate for that to be included as part of the cost of the bill, if the bill itself does not mention documents' being made available to the prosecution?
That is a reasonable point. We could have omitted all reference to the system in the financial memorandum, but we would have been giving a rather imperfect picture of the expenditure that is being incurred in relation to the bill. As I said in response to Fergus Ewing's earlier question, without that early disclosure of material by the Crown, there would not be much point in there being a managed meeting or a preliminary hearing, because there would be nothing to discuss at that stage. That is critical to how the bill will work, but Dr Murray has made a fair point. One could take the purist view that, since that spending does not relate directly to words that are in the bill, it is not bill-related. From our point of view, however, it is bill-related, because we know that we have to incur that spending to make the bill work.
I return to the issue of management. In most industries where the use of information technologies has achieved significant improvements in processes or significant cost savings, that use of IT has led to the removal of a stage—or layers—in the proceedings, particularly one that involves face-to-face meetings. It seems to me that we have almost the reverse situation in this case, where you are adding in a statutory process in the form of the preliminary hearing. Before we agree to that as a principle, is it possible to suggest that, in some cases, the preliminary hearing, which may be simply to set the time of the trial, could be conducted elsewhere than in a court setting or with the support of advocates or other personnel? If some decisions need not be taken in that setting and could be cost-effectively taken in a different way, such as through the use of information technology, should we be approving a bill that explicitly requires that preliminary court hearing as a statutory mechanism?
There are two aspects to that. There is what is described as the managed or mandatory meeting, which can be extremely informal and can be done on the telephone, by e-mail or by fax. It does not require people to sit down together, although that may sometimes make more sense. The preliminary hearing in court, although it will generally be mandatory, can be dispensed with if it is agreed that it would not be necessary in a particular case. Our hope is that those will be useful hearings at which the court will challenge parties and try to drive forward what is happening in the case. However, I agree that, in a case where there are no issues to be resolved and everyone is content and knows what is happening, one could do without it.
In other words, you are saying that there might be circumstances in which a managed meeting might be an effective substitute for a preliminary hearing, and it would certainly be a cheaper mechanism for doing the business that might be required.
Where there is complete agreement and where there is no matter on which the judge requires to reach a decision, it is possible that the preliminary hearing could be dispensed with, but I rather think that that would be exceptional.
I have to agree with Norman McFadyen. We may eventually reach a situation in which there is a category of cases that are relatively simple and straightforward and for which most of the issues that need to be resolved will be resolved in the discussion between the defence and the Crown prior to the hearing. In that case, the court hearing may go through on the nod, or fairly quickly. However, the important thing to keep in mind is that the whole tenor of the bill is about creating an opportunity for closer judicial management of the process, and the procedural hearing is the way in which we involve that. That judicial management is the best way that we can envisage at the moment of achieving the change in culture and behaviour that will be necessary to make the bill work.
I suppose that I am asking whether the bill pushes judicial management far enough. If it is possible in some cases, however few they may be, to substitute an informal mechanism for the formal process of going through the court, that informal process will almost certainly be less costly than a formal court appearance, especially if the result of the court appearance is a purely formal agreement to something that has already been clear in advance. If so, should we consent to a default requirement for a preliminary hearing or should we consider making the legislation say that, in appropriate circumstances, there should be a preliminary hearing but that, in other circumstances, a managed meeting may be a suitable mechanism for achieving the agreements that are required in particular cases? That would clearly have cost-benefit implications.
It would, but it would be extraordinarily difficult to define the cases in which that would apply.
Perhaps it would be for a judge to decide in which circumstances those routes would be appropriate.
Yes, there is a possibility that we will do that through the procedural hearings. However, another element to the procedural hearings is worth bearing in mind: they provide the opportunity for pleas to be tendered. At the moment, that does not happen until the day of trial. That is a judicial element that would require a court hearing, so the two could not be completely separated.
Okay. We have exhausted our questions to the witnesses. I thank you all very much for coming along and answering our questions. We will put the issues that you have raised to the Scottish Executive officials who will come to give evidence to us next week.
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