Audit Committee, 20 Sep 2005

Meeting date: Tuesday, September 20, 2005

Official Report 278KB pdf

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“The 2004/05 Audit of the Scottish Prison Service”

Item 6 is a section 22 report on the Scottish Prison Service. I invite Caroline Gardner to speak to us on that, with assistance from Bob Leishman.

Given the time constraints, I will try to be brief. However, it is worth setting out some of the background to the report.

Last year, the Auditor General for Scotland issued a section 22 report on the 2003-04 accounts of the Scottish Prison Service to bring to the committee's attention the creation of a provision and a contingent liability to reflect the potential costs of settling court cases arising from prison conditions. This 2004-05 section 22 report updates the position and details some recent developments.

By way of background, I point out that, in April 2004, Lord Bonomy issued his judgment in the case of Robert Napier v the Scottish ministers. The judgment, which was upheld on appeal, described the triple vices of prison conditions: slopping out, overcrowding and poor regime. Lord Bonomy found that the Scottish Prison Service had acted in a manner incompatible with article 3 of the European convention on human rights and that, as a result, Mr Napier had suffered loss, injury and damage. The court awarded Mr Napier damages of £2,000 plus interest because his eczema had been exacerbated by having to spend long periods in a shared cell in which he had to slop out.

Immediately on that judgment, the SPS created in its 2003-04 accounts a provision of £26 million to reflect its possible liabilities from other court cases brought by prisoners who had been held in conditions similar to those that Mr Napier was held in. At the same time, it created a contingent liability of £136 million in respect of other cases that might arise in connection with the ECHR. However, I stress that merely being held in conditions affected by the so-called triple vices does not automatically mean that a prisoner is eligible for compensation. In each case, the prisoner has to demonstrate that the conditions in which he was held had some negative effect on him that breached his human rights.

The SPS's 2004-05 accounts show that the provision has been increased by £18 million to £44 million. However, the contingent liability has been reduced by £112 million to £24 million. Although the underlying circumstances have not altered significantly, the changes reflect the fact that the SPS now has better information on the number of prisoners who are likely to be involved and the possible value of any settlement.

I point out also that, in settling the case against Mr Napier, the SPS incurred costs of £1.5 million, including almost £1 million in respect of the legal aid that Mr Napier received in bringing his action. This case illustrates the potential for a significant amount of public money to be spent as a result of decisions that different parts of the justice system have taken about the same case. Given that that raises issues for the wider justice system, the SPS has agreed to discuss with the Scottish Executive Justice Department the best way of resolving similar actions that might be brought by prisoners.

Scottish ministers have now proposed a scheme for settling out of court cases of personal injury that have been caused or exacerbated by slopping out. The SPS considers that settlement costs through its alternative dispute resolution scheme could be substantially lower than the cost of pursuing such cases through the courts. It is also developing a strategy to deal with other compensation claims that have different characteristics from those of the Napier case.

I am sorry that so much information underlies this relatively short section 22 report, but I thought that I should clarify the background to it. We will do our best to answer members' questions.

I do not think that you could have briefed us on this section 22 report in any other way. All the information that you have highlighted is highly pertinent.

On alternative dispute resolution—and forgive me if I am straying beyond this section 22 report—

Please try not to.

When I was a member of the Justice 1 Committee, the committee received evidence on alternative dispute resolution. I know that the European Union had been considering whether to make such schemes statutory; however, people have backed off from such a move.

The Justice 1 Committee found that Governments elsewhere—including the United Kingdom Government—were making much more use of ADR than the Scottish Executive seemed to be making. In fact, at the time, our committee suggested that the Executive should consider whether making greater use of such schemes, particularly in the NHS, would save money, because the cases were less likely to end up in protracted court proceedings. Has the Scottish Executive been using ADR to its fullest extent? It is now being used in the Scottish Prison Service, so there is a sense that the Executive is moving towards its use, but there is perhaps a wider issue. I do not think that the Executive has embraced ADR fully, although it produces almost a win-win situation as it avoids the need to finance many of the disputes in which people find themselves with major bodies such as the Scottish Prison Service and the NHS.

There was a question in there, but there was a comment as well.

I think that I recognise the question. You may know more about this from the work of the Justice 1 Committee than we know from the work that we have done on the issue. Having said that, we understand that there has been little take-up, to date, of the alternative dispute resolution procedure that has been launched in the SPS, as it is a recent initiative.

This is obviously a sensitive area. Nobody is looking to limit people's rights to take legal action when they feel that they have been damaged; on the other hand, if it is possible to avoid claims being raised unnecessarily by having another way of resolving the dispute, that must be in everybody's interest, as you say. The point was raised in the section 22 report because of the potential for the procedure to be used not only within the justice system, which is where it started out, but in other areas where it may be appropriate. The health service is the obvious example of a body against which cases are sometimes raised that could have been avoided by better handling of a situation earlier on. Overall, the question that you may want to ask of the Executive, in some form, is how it is taking the matter forward.

The last sentence in paragraph 9 of the Auditor General's report states:

"Except for HMP Peterhead, where Ministers are considering options, it is expected that slopping-out will be completely eradicated one year after completion of both the two new prisons that the Scottish Prison Service plans to procure (subject to prisoner numbers)."

It says, "plans to procure". What sort of dates are attached to that?

There are plans in hand to procure two new prisons to relieve some of the pressure on prison numbers. I am not sure what the latest dates for that are—perhaps Bob Leishman can help out.

I do not think that we have specific dates yet. Both contracts are about to go out to tender.

This is just whimsy, but how much does a new prison cost?

We will find out when we get the tenders.

Point taken.

The committee is interested in value for money. At first glance, some members might be concerned that incurring legal costs of £1.5 million in defending an action that resulted in an award of £2,000 is somewhat out of kilter. However, I imagine that the £1.5 million was really incurred in trying to avert a potential liability of £44 million, which has now been allowed for. How the matter proceeds will still be of interest to the committee. In moving to ADR to reduce legal costs, which makes sense, it will be important to see the reduction in legal costs that can be obtained relative to the actual liabilities that are given out.

The judgment call that was made was obviously a policy decision and is not for the committee to go into; nonetheless, it will be interesting to see whether ADR brings any savings and whether there are lessons for other departments in it. I do not think that we should get into the question of whether or not the initial outlays were appropriate.

Andrew Welsh has raised the question of developments in the prison estate, and the Peterhead question is mentioned in the final paragraph of the Auditor General's report. What legitimate interest does the committee have in decisions about the estate? There is an issue because the longer that it takes to effect change in that area, the more cases there will be to resolve in future—potentially, at least.

I think that that is a question for me rather than for Caroline Gardner. The extent to which the liabilities will be removed by the introduction of the new prisons is difficult to pin down. Tenders are going out for up to two prisons but, in the end, only one might be provided. From the evidence, it seems that progress is being made at a number of prisons. Therefore, the question is a bit like asking, "How long is a piece of string?" It will be easier for us to see where we are when we come to consider the issue again, possibly in a year's time. By that time, a section 22 report might not be required because all the matters will have been cleared up, but as the reports are laid before Parliament, we can either have the matter as an agenda item or Audit Scotland can write to us to update us on it. Certainly, if members want to be updated on that, we can ask for that.

It would certainly be interesting. Unless it is solved, the problem will continue. Either the slopping-out situation is resolved or there will be further out-of-court settlements and so on. According to paragraph 9 of the report, slopping out will not be ended until the new prisons are completed, so the problem is a continuing one.

The existing prison estate can be changed but we cannot get an answer to our question yet, in as much as further new prisons are required.

The risk of claims comes in situations in which the two conditions—shared cells and slopping out—are met. According to the Scottish Prison Service, there is now no shared use of slopping-out accommodation in the prison estate. Ending slopping out relies on building new prisons because of the obvious physical limitations of the current estate. A step in the right direction has been made, but the work is not complete.

We will discuss these matters further under agenda item 8. Are there any other points that need to be made at this point?

Caroline Gardner said that two conditions had to be met and that one of them was overcrowding. How do we get a feel for whether policies that are designed to reduce the number of prisoners are reducing overcrowding?

You used the word "policies"; that is the difficulty. We must consider the effect of changes in policy after the fact. Given that the Sentencing Commission is yet to deliver its report, there might be changes in policy, which will have an impact, but that is not for us to determine. We can consider the management of policies after they have been changed.

I am just not sure how we would measure people not ending up in prison in a way that will enable us to decide whether those policies have had an impact.

Caroline Gardner might want to help me out here, but it strikes me that, in the comparison between this year's section 22 report and the previous report, there has been a change in liabilities, both real and contingent. That shows that there is a movement, either in the effect of policy or in the degree of accuracy with which the information and numbers are understood. I would expect that, next year, there will be a fine tuning of the current situation or, possibly, a change in the situation because of changes in policies relating to bail conditions and so on.

That is right. All that I can say on the bigger picture is that, earlier in the year, we produced a report on preventing reoffending, which obviously relates to the question of managing prisoner numbers. At some point, the committee might also want to explore the question of capital planning for the prison estate. I would think that the committee would want to use each issue as a way in to the policy question of the number of prisoners, which is a matter for Scottish ministers rather than for this committee or Audit Scotland.

I reinforce that point. It is important that we distinguish between our self-denying ordinance not to seek to determine the policy or express views on it and the Audit Committee's pivotal role in making the linkages in thinking and debate between various policies and the resource questions that we are concerned with. Frankly, those issues are considered in compartments far too often. We in the Parliament are quite capable of having debates in which we focus solely on the issue before us and talk about knock-on resource implications only when we must consider issues through an audit prism.

I feel quite strongly that this is an area in which it is perfectly legitimate that we should flag up the linkages between the policy areas and the areas that we and Audit Scotland are concerned with, while not expressing an opinion about the direction of travel in the various policy areas.

The difficulty at this point is that we are straying into agenda item 8. I would like to compartmentalise our discussion so that we can focus more clearly.

We cannot deal with policy; only ministers can clarify their policy decisions. However, unless those decisions—whatever they might be—are taken, there will be an on-going case to answer in respect of the effect of the continuing situation on the public purse. It might be useful if we could find out from ministers what action they propose to take.

We can go on to discuss that under agenda item 8. If there are no questions that are pertinent to our finding out the information that we require to enable us to discuss matters further, we will move into private session. I thank Caroline Gardner and Bob Leishman for their attendance.

Meeting continued in private until 13:02.