Audit Committee, 24 Oct 2006

Meeting date: Tuesday, October 24, 2006

Official Report 167KB pdf

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“The 2005/06 Audit of the Scottish Prison Service”

Agenda item 3 is consideration of a response from the Scottish Prison Service to the Auditor General's section 22 report, "The 2005/06 Audit of the Scottish Prison Service". A letter from Tony Cameron has been circulated to members. Do members have any comments, observations or questions on the letter?

I have one point of substance and one point of process. I note the helpful update that we are given about developments under the section on estate modernisation. I visited HMP Edinburgh recently and was pleased to see that the claim that is made in the letter was borne out by the evidence there, in terms of the extent of the development that has taken place. I note, however, that the response from Tony Cameron does not address the point about the prison estate that I raised explicitly at the meeting, which was about decisions around Peterhead and how and when they might be expected. That is part of a separate decision-making process with multifarious consultations and the like. It strikes me that there is still a gap in our knowledge in that regard. That is my point of substance.

My second point is one of process. I do not want to labour the point, but I note that there has been an issue around what the chief executive wrote to us about previously and the extent to which he fulfilled his previous commitment to update us. At our previous meeting it was thought that he had not done that; however, it is important that we are clear about such matters. If his commitment was fulfilled in his previous correspondence with us, we should not hesitate to apologise to him for the criticisms that are on the record from our previous meeting, which may be unfair—I am not sure, as I have not studied the detail of the various letters that exist.

It is, indeed, the case that Mr Cameron wrote to us, but that letter was not circulated with the committee papers. An apology for querying the fact that he had not written to us is, therefore, in order, although committee members were unaware of the fact that he had written to us. There is no difficulty in members accepting that he had written to us. We now have the current letter as well, which is helpful.

Under the heading "Prisoner Compensation Claims", the letter states:

"please note Napier was not a test case but the judgment has so far encouraged over 1400 prisoners or ex prisoners to raise similar court actions."

In a later paragraph, it states:

"Napier clarified the law on slopping out and personal injury."

I am not sure about the fine detail of what constitutes a test case, but it seems clear that the Napier case brought some issues to a conclusion that encouraged others to seek redress. Although Mr Cameron's letter is useful in clarifying the nature of the Napier case, it seems that other cases are now being contested to try to bottom out the liability. Whether those are not test cases, I am not entirely sure, but they seem to be important cases in defining the liability. That is what the committee is concerned about.

Our original worry was whether the SPS had allocated sufficient resources to meet the potential demands of prisoners if they went to court for compensation. In Mr Cameron's letter of 24 July, he says that the new prison is "expected" to be fully operational but that the SPS is awaiting a decision. He still does not know when the prison at Bishopbriggs will be completed. I assume that, until it is completed, there is a danger of compensation claims.

Mr Cameron says in his letter of 17 October:

"we understand that the Reporter appointed by the Scottish Executive Independent Reporters Unit expects to issue his report to the Planning Minister by the end of November. However, no firm date has been set for this stage of the process."

What is the meaning of "we understand"? There is still a vagueness about that. Furthermore, his explanations on the second page of the letter contain no amounts for compensation. Our original worry was whether there was enough allocation in reserve to meet properly any liabilities that arose from the situation. I see no amounts attached to his explanation, although that was our worry. We have got words with no amounts or estimates attached to them, although that was our original concern.

As members have no further points to make, I invite Audit Scotland to comment.

The main point is that there is clearly still some uncertainty about both the likely scale of liabilities for the non-personal injury cases and the speed at which new prison estate will come on stream for the two new prisons and, as the convener pointed out, for Peterhead. The auditors' view was that the provisions on liabilities were reasonable in the context of that uncertainty; nevertheless, the uncertainty remains. We will continue to report that to you as the accounts are audited each year, as long as there is a question remaining about those two issues.

I wish in no way to take away from the effect of the mitigation procedures and the action that has already been taken; however, the question is whether there is enough finance available to meet the potential claims for compensation. We still do not have an answer to that, and the committee is right to flag that up.

The committee can decide under a subsequent agenda item what action to take on that. [Interruption.] I am advised that that may not be possible. We can make the decision now rather than in private. Do members wish to draft a further letter clarifying the points that have been raised?

Can we be clear about what the letter would contain?

It would include, for example, the point that Susan Deacon made about Peterhead. Are members content to seek a response on that? Susan, you raised that point.

Yes—definitely.

If the committee agrees, we could ask whether any figures can be identified. Andrew Welsh is concerned about what the numbers are and whether the liabilities can be met.

I asked for clarification because I disagree with Andrew Welsh's point. Caroline Gardner said that, as far as Audit Scotland is aware, sufficient funds are being put aside at this time. However, there is recognition that that is not based on 100 per cent clarity, so there might be some variation. I am not sure what Tony Cameron could add to that.

I would like to know when we will know about Bishopbriggs, but I accept that the independent reporters unit is holding a planning inquiry so we cannot get that information at the moment. We need to wait until the inquiry is completed and the findings are known. I am sure that that will happen at some stage.

I understand the Audit Committee's desire to firm up some of the figures, but it is unrealistic to expect that there is anything on which we can definitely ground that at this stage.

On the contrary, Tony Cameron states:

"Offers have been made in line with the level of award made by the European Court of Human Rights."

He could tell us the amounts. His letter states that there are continuing problems, but no figures are attached to the general statements. There is uncertainty, but we have no information about how much money is involved. The problem will not be solved until the new prisons have been built. In the meantime, what is the liability of the prison service—that is, the public purse—to the continuing claims?

It might be helpful to point you back to the original section 22 report, which you might not have in front of you. It reported to you that the Scottish Prison Service's accounts contained a provision for £49 million and a contingent liability of £24 million for 2004-05. In the auditor's view, on the basis of the available evidence—as I said, there is still significant uncertainty in a couple of important areas—those provisions and liabilities are reasonable, but they are provisions and liabilities because we do not know what the final cost will be. There is likely to be some movement of the type that we have seen in the period since the figures first appeared in the accounts.

There is information in the accounts and it is reported to you through the section 22 mechanism. It might be possible for the SPS to break that down further, but I suspect that there is a limit to how much it can do. There has been some uncertainty, but the accounting requirements are being fulfilled and, in the auditor's view, the amounts that are attached are reasonable.

I recollect that the figures have reduced considerably.

They have. I was trying to find the figures while I was talking. Paragraph 5 of the section 22 report states:

"The 2005/06 accounts record an increase in the provision … to £58 million and an increase in the contingent liability to £27 million."

If Andrew Welsh agrees, one way of dealing with the matter would be to ask the SPS whether it can add any further information.

I hope that my caution and pessimism are unjustified. I agree with the approach that you suggest.

I endorse the point. It is important that we do not continue to drill down and seek further information. We agree that, in broad terms, the information has been provided and the requirements fulfilled.

However, it is critical that we get a clear sense of what action is being taken to minimise potential liabilities and costs in the future. That is the bit that still seems to be missing. I have just re-read the material, but unless I am missing something I do not see a clear statement of the potential relationship between the time that is taken to end slopping out and the liabilities that might arise from any increase in the time that it takes to modernise the estate in order to end that practice. I would like to drill for further information on that—although I am looking for more numbers, I am not sure that more can be provided at this stage. I certainly want more information on what is being done actively to reduce those risks in the future. I am looking in the general direction of the Auditor General to see whether that is the right question to ask.

When we presented the report last month, we understood that 350 cells still required prisoners to slop out. None of those is a shared cell and they are all at Polmont or Peterhead. Polmont will no longer be used when the new accommodation becomes available, which should be before the end of this year. That will leave 280 cells at Peterhead, none of which is shared. There has been a significant reduction since those problems started back in 2000 when prisoners were slopping out in 1,900 cells. Those numbers provide general information about the direction of travel. I suspect that it might be difficult for the prison service to give the committee much more information than that at the moment.

If I may say so, progress at Peterhead is brought into even sharper focus when placed in that context. I note in Tony Cameron's letter of 24 July 2006:

"A consultation exercise has been conducted on the Future of Prisons in the north-east of Scotland, the next stage of which involves consultation with the new Community Justice Authorities."

As I understand it, that exercise is still in its infancy, but it has the potential to go on for many months, if not years, before all the planning and construction processes begin. I want to know what timeline the prison service has in mind.

The question is more about possible timelines. If consultation on the future of prisons in the north-east of Scotland is under way, the options under consideration might change. A number of timelines are therefore involved and the concern for the Audit Committee relates to what liabilities will attach to those different timelines. We could ask the prison service to provide that information. Does the committee agree that I should write to Mr Cameron to thank him for his two letters and to ask for further information?

Members indicated agreement.

Good. Members will be given copies of the draft letter before we send the final version.

Meeting suspended until 11:23 and thereafter continued in private until 12:38.