Agenda item 2 is further consideration of the financial memorandum for the Criminal Procedure (Amendment) (Scotland) Bill. I welcome to the committee Wilma Dickson, who is head of the Scottish Executive Justice Department's criminal procedure division, Tom Fyffe, who is a bill team member, and Sharon Grant, who is from the community justice services division.
We want to move straight to questions because you identified some of the things that you wanted to talk about last week.
We will do our best.
I will kick off on value for money. I was a bit perturbed to hear from last week's witnesses that sums of money are being set aside as retainers for solicitors to make themselves available. Did the Executive consider undertaking value-for-money studies with organisations such as the Scottish Court Service, the Scottish Legal Aid Board and the Crown Office and Procurator Fiscal Service prior to considering the policy proposals?
SLAB is suggesting that it might be worth making a payment to ensure that a counsel does not engage himself in business that might overrun. Waste of court time, which might happen if a counsel has double-booked through no fault of his own because a previous engagement has overrun, is a waste of judges', prosecutors', witnesses' and jurors' time, as well as a cause of huge inconvenience to witnesses and victims. It is fair to say that no final decisions have been taken on the form of the legal aid payment, but such a payment might be a small price to pay to ensure that trials start on time. It is important to say that the details of the form in which such payments would appear in regulations have still to be worked out but, on a risk assessment basis, it might well be better to invest to save further down the line.
Yes.
It might be worth flagging up to the committee the fact that the first meeting of a criminal justice system board that will bring together the stakeholders will be held on 1 December. The purpose of the board will be to examine management information across the system, to identify the blockages and the problems and to find ways forward. Although that is primarily about efficiencies in the system, not about saving money, it is a first attempt at addressing value for money.
In a sense, it might turn out that some of the costs that are identified as being associated with the bill are costs that will be incurred in modernising the system.
Yes. One of the difficulties is that the bill is the core of a wider modernisation programme. The issue of what is in the bill, what is out of it and what is on its margins was discussed last week. I repeat what last week's witnesses said, which is that, to make the reforms in the bill fully effective, it is necessary to make some of the changes that are in the white paper, "Modernising Justice in Scotland: The Reform of the High Court of Justiciary", but not in the bill, such as those on disclosure. The committee might want to discuss that.
One of the issues that came up in evidence last week was that, although organisations involved in the administration of the criminal justice system could each exercise some management control over their budgets in their own areas, they do not make the key decisions that affect costs. I am well aware of the constitutional issues, but could not the Administration have gone further in seeking to find a framework that encourages the people who make the key decisions—who are primarily judges—to work within a financial framework that would allow more control to be exercised than is the case in the present system? The impression that last week's witnesses gave us was that they have very little control over the costs of the system. The present financial management system does not seem to be a good one.
The Executive acknowledges that we need a cultural change to a more managerial approach. The white paper underlined the fact that the court and all the lawyers before it need to see themselves as being individually responsible for the efficient administration of justice, so that is recognised.
The parallel with the medical profession occurs to me. Although no one would tell a doctor how to treat their patients, over the past 10 years, the national health service has done considerable work to establish a system in which doctors take some responsibility for management of budgets within their area, as well as for the professional decisions that they take. When I read the financial memorandum to the bill and Lord Bonomy's report, I was struck by the refusal to engage with that issue. The Finance Committee finds that very disappointing. Although we would not want the Executive to ask the judiciary to set aside its constitutional independence or constitutional role, we would want it to say to judges that the decisions that they make must bear some relation to budgets in the same way that everyone else's must do. It is very disappointing that the bill does not seem to address that issue.
As far as the parallel with the medical profession is concerned, a consultant's independence is contractual—there is not the same overriding constitutional issue as there is with the judiciary. I am quite familiar with that area, because I used to deal with such matters when I chaired the general practitioner pay negotiations in my last job.
Although I might be ignorant of legal issues and legal etiquette, I do not accept that the constitutional role of judges necessarily means that they should not be subject to controls over the expenditure of public money. We are responsible for properly safeguarding the expenditure of public money and for ensuring that that money is spent in a value-for-money way. It can be argued that that is of equal importance to any constitutional role that the judges might point to. I suggest that the idea that a system can continue to operate without elementary financial controls is not an acceptable proposition and needs to be taken back to ministers.
I am happy to do that.
I accept what you said about cultural change. What plans do you have to ensure that the Scottish Court Service, the Crown Office and SLAB work more closely together to eliminate or minimise cost and delay?
Are you talking about the High Court in particular?
Yes.
The process of implementing the bill involves the members of the multi-agency group who worked together on the bill's preparation working together on its implementation. A number of work streams are under way—for example, on legal aid and on evaluation and monitoring. One of the critical aspects of that is the development of a good baseline of information, which means that, once changes are introduced, they can be measured. Would the committee be interested to hear how we are going to do that?
Yes.
We have a group that involves the Scottish Court Service, the Crown and our researchers, which is establishing what the key variables are. Some of them are obvious—the number of adjournments and extensions and the occasions on which people plead guilty are critical to measuring the efficiency of the system. The idea is that we should agree on those variables and build them into people's electronic management systems for 2004-05—the year before implementation—so that we will have a good, robust, recent baseline against which to measure change once we get to implementation. That is the kind of thing that the committee will wish to consider.
Going beyond getting people together to discover where costs in terms of delays and money are incurred, what plans do you have to ensure a proper level of benchmarking, external audit and rejustification of the total resources that are employed?
That goes a wee bit beyond the bill team's remit. We are now addressing system blockages, and that will have economic benefits, although the implementation that we are carrying out is not directly focused on saving money. It is beyond my remit to say what I think the Executive should do in the way of benchmarking and external audit. Audit Scotland recently produced a report on youth justice and the matter of time intervals is now being addressed, although it is for the audit folk themselves to decide what their priorities are.
I wonder whether there is a serious omission there. In any other sphere of activity, particularly commercial activity, there would be an expectation that any change that was being mooted, with money being put in, would sweat out additional savings.
The witnesses who appeared before the committee last week pointed out that the High Court does not operate in a static context. There is an expectation that the number of the kind of cases with which the High Court now deals will continue to rise. Among the relevant factors in the system are the minimum five-year sentence for firearms offences and the increase in the capacity of the Scottish Drug Enforcement Agency, which will increase business. When Lord Bonomy considered why the number of High Court indictments had risen so much and to what that was attributable, two thirds of the reason was to do with an increase in the number of serious drugs cases.
Are the measurements in place to identify those efficiencies and ensure that they are made?
The evaluation monitoring framework will cover that. Efficiencies in legal aid cases are fairly straightforward. As far as efficiencies elsewhere are concerned, we would measure reductions in the number of adjournments and extensions. Those are a proxy for finance; they are not in themselves a matter of finance, although it is possible to assess how much the costs for them are. In effect, the efficiencies would be measured, but that is a proxy for financial management.
One of the bill's provisions concerns the remote monitoring of individuals. Will there be any additional costs to the police in apprehending those remotely monitored individuals who breach their bail conditions?
The increased costs to the police will be marginal. If someone was released on bail and breached their conditions, the police would have to apprehend them. Electronic monitoring makes it more visible that the person has breached bail, and the police should be able to respond more speedily and apprehend the offender for breach of the condition.
You appeared a little uncertain in saying that. Are you saying that the remote monitoring provision will broadly be cost neutral, or are you saying that the speed with which the police will be able to react—
The speed of response will, of course, be entirely down to the police, taking into account their operational priorities. At the moment, the police might not be aware of someone breaching a bail condition right away and it might take some time to apprehend the offender. Under the new measures, the electronic monitoring company will be able to notify the police of a breach quite quickly. The police will then be able to take a decision on when it is appropriate to apprehend the offender.
What about the costs associated with undertaking assessments for the purpose of movement restrictions?
Undertaking assessments is a matter for local authorities. We estimate that the cost for 100 orders during the pilot period would be about £12,500 across all the local authorities, which works out at roughly £125 per assessment.
The bill provides for preliminary hearings. At the end of our evidence-taking session last week, the witnesses seemed to recognise that a hearing as such might not be required in all cases, although the bill provides formally for that. Instead of having to take up expensive court time, with judges and everybody else in place, it might be possible to get the business done through a managed meeting, or possibly through another mechanism that might not involve a meeting of any kind. That will not apply in all cases—indeed, it might apply to only a minority of cases—but that could potentially lead to significant cost savings. Was that given consideration?
There are two answers to that, a policy one and a practical one. The key purpose of the bill is to deliver justice better in the most serious cases. The judicial management of cases is critical to the bill's aims. That picks up the points that have been made about a culture change. Critically, the court, rather than the Crown, will set the trial date. At the moment, the Crown decides when a case comes to court. To avoid wasting its time, in future the court will do so, on the basis of the full evidence, showing where the parties are at.
I will stop you at that point, Wilma. We indicated earlier that, as a mark of respect for remembrance day, we would hold two minutes' silence at 11 o'clock. That time has arrived, so I ask everybody to stand.
I am sorry to have interrupted you.
I understand the point. There is clear provision in the bill for the court to dispense with the preliminary hearing without any need to hear the parties.
How the bill is drafted makes that situation seem exceptional. If the bill were drafted differently, dispensation of the hearing could operate as a more appropriate choice.
The critical point is that the bill is drafted in such a way that both parties have to agree to dispense with the hearing. In relation to other matters, one party could say, "I would like to bring this forward or back". The philosophy behind the bill is that judicial management is important—although you might not agree—and all the evidence is that if we invest early on in the process, not only will we save money later on, we will save a great deal of anguish for witnesses and victims in particular.
You are trying to tie up criminal procedures with civil procedures. However, in civil cases, and in commercial cases in particular, each side would already have put its arguments before the judge before that judge could make a judgment on it. Likewise, notwithstanding that a managed meeting would not be completely necessary and that matters could be dealt with through discussions, the court would have to be satisfied with the written submissions that the preliminary hearing was not necessary.
I am not a judicial expert, but as somebody who has looked at a number of processes, I think that it seems possible to give the accused opportunities to plead guilty before they get to court. It has been a tradition that that is done in a court setting, but that is not absolutely necessary. Has there been a root-and-branch thinking through of the procedures or are we faced with an adaptation to take account of the requirement for a procedural hearing without thinking about one or two more radical solutions that would avoid the need for court time to be used for that purpose? You seem to admit the possibility that in some cases a preliminary hearing might not be necessary. I am pushing you a wee bit further to ask whether we can look beyond this and see whether there might be more cases where such hearings might not be necessary. The cost savings might be considerable.
We recognise fully that in any case where the defence and the prosecution are prepared and ready to go for trial, there should be no need for a procedural hearing because they will be able to satisfy the judge by written submission that that is the case. I stress again that one of the critical factors in making the process work is giving the court the power to set the trial date and ensuring that the court is fully informed about what stage the cases are at before it does that. If that is not done, the process will not work.
Do you agree that, from the public's point of view, the big disappointment in the bill is the fact that nothing has been stated about how efficiencies, cost savings and reductions can be made in the huge part of the budget that goes to the legal profession? The public do not feel that they are getting true value for the money that goes into the judiciary generally. Do you agree that there should be a department or someone responsible for driving down costs in your areas?
One of the key concerns relates to legal aid and the payment of lawyers for appearances in the courts. Because lawyers are individual practitioners and are not managed by the Crown Office in the way that, say, procurators fiscal are, the mechanism for quality improvement and cost savings is at the point of contact between the public and private sector parts of the legal system, which is the fee that is paid and the terms by which it is paid.
That is probably an issue for ministers in a different setting.
The public feel quite serious disquiet when they see published the sums of legal aid money that are paid to particular Queen's counsel. Without going too deeply into the matter, I note that one MSP earns three times his parliamentary salary from legal aid, never mind what he gets from his private clients. The public are, rightly, extremely concerned about the vast sums of money that go to QCs, no matter how eminent they are. I do not know whether our committee has a role in dealing with that or drawing it to someone's attention.
There was a suggestion that there would be a strategic review of legal aid. I presume that the relevant committee will deal with that. We have some purchase in relation to court procedures and the number of times that QCs come before the courts. We might like to explore whether there is a way in which we can control that more effectively.