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Chamber and committees

Meeting date: Tuesday, December 13, 2016

Justice Committee 13 December 2016

Agenda: Draft Budget Scrutiny 2017-18, Crown Office and Procurator Fiscal Service, Criminal Finances Bill, Justice Sub-Committee on Policing (Report Back)


Contents


Draft Budget Scrutiny 2017-18

The Convener (Margaret Mitchell)

Good morning, and welcome to the 12th meeting in session 5 of the Justice Committee. Agenda item 1 is scrutiny of the draft budget for 2017-18. It is my pleasure to welcome from Audit Scotland Caroline Gardner, who is Auditor General for Scotland, Angela Cullen, who is an assistant director, and Mark Roberts, who is a senior manager. We are pleased to have you before the committee today.

I refer members to paper 1, which is a note from the clerk, paper 2, which is a Scottish Parliament information centre briefing and the written submission that Audit Scotland has helpfully provided.

I understand that the Auditor General wants to make an opening statement.

Caroline Gardner (Auditor General for Scotland)

Thank you for the opportunity to give evidence to inform the committee’s pre-budget scrutiny. I will briefly highlight three points for you. First, over the past five years, the Crown Office and Procurator Fiscal Service’s budget has been relatively static in real terms, which has reflected financial constraints across the public sector. In the past two years, the Crown Office has received additional financial support from the Scottish Government for specific casework and to reduce the time that it takes for cases involving domestic abuse to reach the courts.

Secondly, long-term financial sustainability is a central theme in our work. Due to the financial pressures that face public bodies, we have been encouraging them all to think about long-term financial scenarios and to develop strategies to deal with those. I am pleased to say that the Crown Office is developing a long-term financial strategy.

Thirdly, although the Crown Office is constitutionally and operationally independent, it is also an integral part of the justice system. My report last year entitled ““Efficiency of prosecuting criminal cases through the sheriff courts” noted concerns about how well that system was operating, especially at local level. Our monitoring suggests that progress has been made since then, with improvements in the operation of local criminal justice boards and internal restructuring of the Crown Office and Procurator Fiscal Service.

As you said, convener, I am accompanied by Angela Cullen, who is the appointed auditor for the Crown Office, and by Mark Roberts, who leads our work across the justice sector. Together, we will do our best to answer the committee’s questions.

The Convener

Thank you very much. That is helpful. Members have questions.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

Thank you for those opening remarks, Auditor General. They take me straight to an area in which I am interested, which is the long-term strategy over 10 years. What factors should be considered in that context? In my experience—I have been there, with that sort of thing—it is extremely difficult to look so far into the future. Are you expecting that the COPFS will, as a result of the exercise, identify changes to be made in the law that would give it stability? Is it anticipating changes in the law that are not necessarily being talked about? I will give an example. There might be changes in fixed penalties, which would reduce the number of cases that come into the court system at the bottom end. How will COPFS deal with such imponderables, and how would you expect to see that documented in what you will subsequently be auditing and engaging with?

Caroline Gardner

That is a good question on which I will ask Angela Cullen to come in, in a moment. I preface that by saying that the bodies that we audit are often anxious about the prospect of doing longer-term financial planning, and we recognise that in most instances they receive firm figures on their funding only a year or so ahead, through the Scottish Government’s budget. It is not that we think that they can get a financial strategy that is right; rather, it is about the process of their thinking through changes, and what we know about the likely direction of public finances and how the bodies would react in different circumstances.

Angela Cullen will talk you through the specific things that she would expect to see in auditing the Crown Office.

Angela Cullen (Audit Scotland)

That was a really good question, Mr Stevenson. A few years ago, when we published our report “Scotland’s Public Finances: Addressing the challenges”, we recommended—probably for the second or third time—that public bodies develop long-term financial strategies. We set out the areas that we expect bodies to cover and said that the information that is to be provided should not be in great detail, but should be high level.

We accept that bodies do not know what their budgets will be, but they know their costs, the costs’ drivers and their priorities over the long term. They also know where they could make savings and where they have made them historically, so they can model different scenarios or options. That might be about considering how legislation that they are aware will be introduced in the next few years might impact on their services and on demand for them. We expect bodies to consider a range of areas in a long-term strategy. The Crown Office is considering its long-term strategy at the moment and is making progress on it.

We do not expect long-term financial strategies to be developed and then just put on a shelf; rather, they should be living documents that should be dusted off and refreshed every year or so when new factors come in—for example, new legislation. We would certainly expect legislation that had not been anticipated but was then introduced two years down the line to be built in so that scenarios and options could be modelled around it.

Stewart Stevenson

We use the word “shelfware”, so I recognise what you have said.

I would like to take that a wee bit further and analyse the purpose of a long-term strategy. Is it to inform the Government of needs in an organisation’s functional area—I guess it will, in part, be about that—or should it be more focused on enabling the organisation to be flexible in its responses through its having done some strategic thinking about the consequences of a range of scenarios? If it is the latter, will that mean that the plan is less about numbers and more about activities?

Caroline Gardner

It is both those things and a third—especially for the Crown Office. We know that it is an integral part of the overall justice system. For example, in our report last year called “Efficiency of prosecuting criminal cases through the sheriff courts” we talked about the significant increase in work that had come through because of Police Scotland’s focus on traffic offences. The discussion therefore needs to be not only with the Government and within the Crown Office, but with the Scottish Courts and Tribunals Service, Police Scotland and other players, in order to ensure that everybody understands and, as far as possible, takes a joined-up approach in terms of the direction of the justice system.

My sense is that the most important focus is within the Crown Office, which will have the chance to think through its direction of travel in terms of the demand that it will have to deal with, how it can manage that demand and what is likely to happen to its funding.

The long-term strategy obviously links to other strategies—workforce strategy and the digital strategy, for example, which Angela Cullen has also recommended that the Crown Office take forward and consider how to manage. I know that one of the committee’s concerns is whether the Crown Office has sufficient resource to deal with the demands that are made of it. The long-term strategy will help to identify the extent to which excess demand could be met through efficiencies in the system, and whether a discussion needs to be had with the Government about the resources that are needed to deliver the system as it currently stands. A long-term strategy plays both those roles: a detailed understanding of the pressures and where scope exists to work differently to meet them is a fundamental starting point for a sensible discussion.

Stewart Stevenson

I have a final question before I pass the baton to others. The long-term strategy will clearly engage quite a lot of people in the organisation. It will take quite a bit of effort and, perhaps, lead to quite a lot of debate about the organisation. Have you any sense of how many people or how many man hours might reasonably be thought proper to apply to the task? On the other side of the equation, what benefits will come from the organisation taking a strategic approach and how will we know that we have had any benefits?

I used to work for the Bank of Scotland, which published its first annual accounts only after it had been in existence for over 250 years. Until we on the computer side started to do strategic planning, the bank did none whatsoever, so I am therefore familiar with two worlds. On the Crown Office, how big will this substantial piece of work that will challenge and so forth be? When you audit the Crown Office, where do you expect to see the benefits from its having taken that approach? I guess parts of the Government will be listening to your answer, as well.

Caroline Gardner

I will ask Angela Cullen to talk about the specifics of the Crown Office. I may pick points up later if there is something to add.

10:30  

Angela Cullen

I cannot tell you off the top of my head the cost of developing the long-term strategy or how many hours it might take. Development of the first strategy will take more time and involve more people. We would actively encourage the Crown Office to involve as many people as possible; often the people who are on the ground doing the work can identify where efficiencies can be made, so they should be involved in that.

Once a strategy has been developed, it should be easier to keep it up to date, as I mentioned earlier. Maintenance of the strategy should be mainstreamed and given significant focus and attention.

Stewart Stevenson

If I may intervene at this point, I say that those are warm words, but I get no sense of scale from them. Please could you give me some sense of scale? Audit Scotland will look at the effort that was deployed on the task and comment on whether the Crown Office spent too much or too little time on it and whether the outcome was satisfactory. Do you have metrics for auditing whether the COPFS has successfully progressed the request for a 10-year plan?

Angela Cullen

I may or may not comment on how much it has cost COPFS to develop the plan. I will examine whether the strategy covers all the bases that we expect and whether the assumptions that have been made look reasonable, are in line with historical activity and predict future demand. By “historical activity”, I mean the Crown Office’s success to date in delivering efficiency savings. The question is whether the organisation is being overly optimistic in the early years of the strategy. I would also look at whether the Crown Office has built in plans that might need up-front investment in order that it can make the changes that are necessary to deliver the savings. I would look at all those things and say whether the strategy looks reasonable, rather than at how much it cost to produce.

I would expect benefits from the strategy: for example, I would expect it to reduce the cost base or—as the Auditor General said—to allow the Crown Office to have discussions with the Scottish Government, for example, on a prediction that, over the next five years, it will need a flat-cash budget or a slight increase in its resource base to allow it to meet demand that is coming its way.

I would also expect there to be awareness and ownership of the plan throughout the organisation and for everybody to understand their role and to identify where savings can be made.

Liam McArthur (Orkney Islands) (LD)

Intuitively, where there is uncertainty—and the further that we go along the 10-year spectrum, the more uncertainty there will be—the human reflex in organisations is to make the case for maintaining as much of what they have as possible. The COPFS will be no different. Organisations build in arguments to support their case for resources, whether they face anticipated changes in legislation or workload pressures that are brought about through some other mechanism.

The value of the exercise seems to be that it provides an opening negotiating position. Once the detail of the budget is known, organisations can start planning on that basis where they might reduce activities and where they might be able to deliver efficiencies. What is the upside in offering up those efficiencies? Needless to say, ministers will take and bank them—and look for others if budgets are tighter than were anticipated.

Caroline Gardner

Hypothetically, the other side of that negotiation is that the Scottish Government’s budgets for most organisations have reduced in cash terms at least over the past five years because of the downward pressure on the block grant from Westminster.

The process is difficult, as it always is at a time of reducing resources. That is one of the reasons why, as Angela Cullen said, we would expect a whole range of scenarios to be explored and sensitivity analysis applied to them to look for where there may be room to absorb rising demand within existing resources and to work differently to reduce costs in some areas to invest in others.

There is also an important role for the non-executive involvement in the Crown Office to ask challenging questions, bring experience from elsewhere and bring a fresh pair of eyes to the way that things are done. Incentives are clearly conflicting and competing in any process of that type; that is another reason why analysis that is clearly set out with a range of scenarios, different assumptions and different ways of responding to them is the best way in difficult circumstances. It is not perfect, but it gives a starting point for exploring what is really happening underneath the surface of the Government’s work.

Liam McArthur

You touched on the fact that we are well into a period in which budgets have been tightening. In the submission that you helpfully produced for the committee, you talk about the recommendation for the COPFS to

“develop a long-term financial strategy to inform its development over the next 10 years.”

I was slightly surprised by that. Given what we have gone through, is there not an argument that the COPFS should have been preparing such a strategy maybe not at the outset of that 2008-09 process, but certainly shortly afterwards?

If so, are there other organisations that you are auditing that have gone through that process earlier? Are we seeing benefits as a result?

Caroline Gardner

It is fair to say that most of the public bodies that I audit have struggled with the concept of longer-term financial planning. They have all had firm financial allocations for just the budget year ahead; sometimes they have had changes to their budget within that year, as I have reported elsewhere.

Liam McArthur

Have you, or has your predecessor, made that recommendation before and it has not been picked up on?

Caroline Gardner

Angela Cullen mentioned in her response to Mr Stevenson that the first piece of work that my predecessor did—I think that it was in 2010—was specifically about responding, after a decade of growth, to what looked like the start of a decade of real pressure on finances. That recommendation to take a much longer-term view on finances was made to the public sector in general, in which the Crown Office is obviously an important part. Many organisations have struggled with what that means; it is not something that they are particularly skilled in doing and they have tended to focus on managing the budget within year rather than on what they are to achieve in the longer term.

Angela Cullen recommended that approach in her audit report for 2015-16 and it was part of the discussion in 2014-15; although the work is now under way for the Crown Office, we feel that it could have started earlier than it did.

Liam McArthur

Have you set a timeframe for when you would expect to see the first iterations of that? You say that it is a living document, but when do you expect to see the first flush?

Angela Cullen

In response to the 2015-16 annual audit report that I prepared on the Crown Office, management accepted the recommendation. The timescale was that they would start the process, dependent on two issues. Shaping the future, which is a project to restructure within the Crown Office, had to be completed before they finalised the financial strategy, which would be refined when they knew the outcome of this year’s spending review—that is due this week. The commitment was that they would have something in place by the end of this year.

Liam McArthur

Okay. Thank you.

The Convener

We have heard repeatedly that there is an issue about churn, or unnecessary delays. To quantify the impact of churn, is there an average cost for such factors as a day in court? We are discovering that it is a huge issue.

Caroline Gardner

The question of churn was a big issue in the work that we published last year on the efficiency of the court system. Mark Roberts will talk members through that.

Mark Roberts (Audit Scotland)

We did not do the analysis quite in such a way as to put a specific cost on such things as a day in court. However, we built up a model that estimated that the total cost of churn to the system as a whole—the Crown Office, the court service and the police—added up to about £10 million during 2014-15. That was for cases that turned over unnecessarily in the course of that year.

The Convener

As that increases, will it start to show up anywhere? Where can we really see what is shown by that figure in a way that most people can relate to? We hear about churn, but what does it mean? We know that it means witnesses being disadvantaged and justice being delayed, but is there not a financial cost to be quantified?

Mark Roberts

There is absolutely a financial cost if the individuals involved have to attend court, and it has a wider impact on the economy as well as on the individual public bodies and the staff members who are preparing for a particular trial date, the police officers who have to attend as witnesses and so on. There is a cost in things not going ahead as planned.

The system as a whole is working very hard to try to reduce churn. We understand from more recent conversations that we have had that there is significantly better working across the various justice bodies to reduce the level of churn and improve planning, particularly for trial activity in solemn cases.

The Convener

Has there been any specific analysis of churn itself? Is it found particularly in solemn cases, or can it also be found in summary cases? Does it affect a particular type of case or does it happen generally across the board?

Mark Roberts

I think that it happens generally across the board. It is a particular focus for the Scottish Courts and Tribunals Service. I recognise that that is not the focus of the committee’s work at the moment, but it is looking closely at the issue and working very well with the Crown Office on improving the understanding of it as a system as well as in terms of the management of individual operations.

The Convener

As you have said, the court system is interlinked, and the feedback that we are getting is that fiscals are under pressure, are underresourced and are dealing with too many cases. Preparation is not being carried out; some vital evidence might not be available; and all that is contributing to churn.

That was useful information.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

My question relates back to the financial planning strategy. Given that the figures show a pattern, with the number of trials going up and down and fluctuating, would you plan on the basis of the upside or on the basis of an average? Does that make things difficult for you?

Caroline Gardner

Clearly no public body knows what the future is. As Angela Cullen has said, we would expect the Crown Office to look at the level of activity and the fact that it has continued on the same trend for the past five years. It could then say, “If we assume that there was a peak because of the reporting of historical sexual abuse cases, there might be a drop because those cases have almost been flushed out of the system, and this is what that would look like. If we assume that there are more scandals to come out, as we have seen in football over the past week or so, this is what that will look like.” It would then end up with a fan pattern ranging from a worst-case to a best-case scenario, and that would let it plan on the basis of not just the costs of its current working but taking a different approach that might allow things to happen at lower cost or at faster speed. No one plan is going to be the outcome, but it would provide a way of thinking through what might be coming.

Rona Mackay

So it would look at both scenarios and make a guess on that basis.

Caroline Gardner

Exactly.

Mary Fee (West Scotland) (Lab)

Good morning. I want to ask you about the digital strategy, which was touched on briefly in an earlier question. In paragraph 10 of your submission, you comment:

“COPFS does not ... have an agreed digital strategy”.

It seems to me that, if the COPFS is looking at a long-term plan, such a strategy should be part of it. A lot of work has been done over the past few years on streamlining and joining together lots of local services, and I would say that a digital strategy should be part of that. What impacts will the lack of a strategy have on the streamlining process?

Caroline Gardner

You are absolutely right. It is important to distinguish between the overall system, in which a justice digital strategy has been agreed between the Scottish Government and the various significant players, and the Crown Office. Angela Cullen will pick up where the Crown Office is in that regard.

Angela Cullen

There is the justice digital strategy, and each of the bodies underneath that should have its own digital strategy for achieving the national strategy and know what that means for the organisation.

The development of a digital strategy has been a feature of the audit over the past couple of years, and we have made recommendations on that. You are absolutely right that that is one of the building blocks of a financial strategy, alongside workforce and estates and assets. As I understand it, the Crown Office has a draft digital strategy, which should be going to senior management and the board within the next few months. That is quite well progressed, and will hopefully be one of the building blocks that will feed into the financial strategy that I expect to see by the end of the financial year.

10:45  

Mary Fee

Is an investment required to develop that strategy, or does the Crown Office have the finances to do it?

Angela Cullen

It has been worked on over the past few years. In 2013, a new director of information technology was brought in and that has been one of his priorities, alongside lots of the other digital projects that the Crown Office has been working on with other justice organisations to improve the efficiency of the system.

Douglas Ross (Highlands and Islands) (Con)

I want to pick up on a number of the points that other committee members have made, to tease out a bit more information. First, on strategic financial management, do you think that it is acceptable for bodies such as the Crown Office and others to almost ignore your recommendation?

Caroline Gardner

We obviously do our work to make a difference in the public interest and to make best use of public money. We think that, in the current financial circumstances, everybody should have a longer-term financial strategy and we have been recommending that for some time.

Douglas Ross

Is it acceptable that you have had to recommend that for some time, over successive years, but that only latterly has some action been taken? That is my question.

Caroline Gardner

Angela Cullen outlined the building blocks that are going into the process: the internal restructuring and the broader review of the work that is happening—those are important building blocks. Equally, as I said in my opening remarks, we would like to have seen faster progress, given the pressure that there is on the system.

Douglas Ross

What do you say to the Crown Office, annually, when that is not achieved?

Caroline Gardner

A conversation will normally take place between Angela Cullen, the appointed auditor, and the accountable officer and audit committee of the organisation. We highlight again that we think that it is important and why. Occasions such as this meeting with the Parliament are also an important part of the accountability process.

Douglas Ross

From my point of view, the fact that you continually have to repeat those statements seems to be a weakness; you expect something to be done and yet you have to repeat them annually. When you give that advice to bodies such as the Crown Office and they choose not to follow it, does that diminish what you are saying? Other organisations may think, “They tell the Crown Office to do that but the Crown Office doesn’t do it, so we’re not going to bother either.”

Caroline Gardner

That is not really an accurate representation of the way that the audit approach works. We engage in a dialogue with the bodies that we audit, and there is a range of issues that we think each body should take forward. We have mechanisms such as reporting in public—reporting to the Parliament—when we think that there is a particular shortcoming. I would have liked to see faster progress, but I do not think that it is a major failing in the way that audit works or in the way that the Crown Office has responded.

Douglas Ross

It seems quite major. You have been mentioning the importance of a long-term financial strategy for successive years; indeed, your predecessor also mentioned it to the Crown Office.

In your response to Liam McArthur you said that it is difficult because of one-year budgeting, but your submission says that

“Irrespective of the fact that public bodies’ budgets are set annually”

they should be doing that. You tell them that, despite all the problems around annual budgeting, they should be doing long-term financial management, but that is not happening. The public and politicians rightly look to you to highlight those issues, but there is no point in just highlighting them if the bodies do not do anything and the situation continues indefinitely.

Caroline Gardner

There is no question but that I think it is an important recommendation. Angela Cullen wants to add something to my previous answer.

Angela Cullen

As the Auditor General said, the previous Auditor General originally made the recommendation back in 2010. We looked at it again in 2013 to see how the public sector had reacted to that. There had been some progress in some areas, but not across the board.

At that time, we discussed with public bodies what might help them to develop a long-term financial strategy. We heard a lot of comments such as, “Actually, we do not know what our budgets are so we cannot do that.” As auditors, we do not accept that argument; as I said, the organisations know their costs and they can model different scenarios. That was when we set out the basic elements that we would expect to see in a long-term financial strategy—that was in 2013.

Since then, we have been working with bodies to help them improve and develop in those areas, at both a national level and a local level. As auditors, we go in to see what progress has been made and offer advice when that is necessary or when it is asked for. As the Auditor General said, we would encourage the non-executive board members to be involved in that, because they often also see what is happening in other bodies. There is a wealth of experience across the public sector. We can therefore point bodies to others that have developed long-term financial strategies, so that they can speak to them and find out what they did. We have done a lot of that.

Work has been on-going over the past year or so at the Crown Office, but I accept that it has been dependent on the shaping the future project. The COPFS had to complete a piece of work to allow it to inform its workforce planning, which would help it to model the numbers that it needed to allow it to work out the costs around that for its financial strategy.

Douglas Ross

On a similar theme, I will pick up on the point that Mary Fee made about the lack of a digital strategy. Audit Scotland highlighted that issue in its 2014-15 audit of the COPFS and did so again in the 2015-16 audit—therefore it was not dealt with the first time. Audit Scotland has now highlighted it again and you are saying, at the end of 2016, that a proposal will be put to the board at some time in the future. Is that acceptable? You state in your report that, without having a strategy—despite your reports twice reminding it about this—the COPFS is

“at risk of being unable to contribute fully to the delivery of an integrated approach across the justice system.”

Is it acceptable that the COPFS did not take that recommendation on board earlier?

Angela Cullen

It is disappointing that more progress has not been made. You are right that that recommendation was made twice. Things were happening in the background when we did the work this year as part of the 2015-16 audit. There was a draft strategy, but it was very much a draft and we commented that there was a draft strategy but that it was lacking in some areas. We made recommendations, which the COPFS accepted, and it said that it would work on those areas in developing a strategy. That is what I would expect to see in the strategy now.

Douglas Ross

When a comment was made in the 2014-15 report by the Auditor General, did you expect that in 2016 we would still be looking at a draft strategy that—from what you are saying—will have to be amended significantly. Was that the timescale that you were expecting at the time or did you expect this to be done a lot sooner?

Angela Cullen

The management response at the time indicated that the strategy would have been completed before now.

Douglas Ross

And what do you do when it is not completed? Do you just write the same in the next year’s report?

Angela Cullen

We continue to work with the COPFS behind the scenes by looking at drafts, commenting on them and asking whether the strategy covers the areas that we would expect it to cover before the COPFS progresses it any further.

Douglas Ross

Although you would expect the COPFS to be able to provide you with an acceptable draft. It is almost as if it rushed something out because it realised that the issue had been mentioned twice and that it would get into trouble if it were mentioned a third time, so it shoved out a draft that needs quite a lot of work done to it. It does not sound like a strategy that has been developed through rigorous research or has had a lot of time put into it.

Angela Cullen

As I said, I would have expected the strategy to have been completed before now. It is possibly worth following up with the Crown Office why progress has not happened to the timescales that it specifically set out.

Douglas Ross

I have a final question, on the local criminal justice boards. You say that they were discussed in Audit Scotland’s previous report but, as of April 2016, they have merged and are aligned to the six sheriffdoms in Scotland. Audit Scotland’s submission goes on to praise the great work that they are doing. Is seven months enough time to analyse and consider how good the work is that they are doing? Is that sufficient time to enable you to put quite strong, positive words in a submission to the committee?

Caroline Gardner

As I said in my opening remarks, the report that we produced in 2015 stated that there was good joint working at the national level but there was much more variability at local level. Mark Roberts has been monitoring what has been happening since that report was published in 2015. I ask him to talk you through why we have the impression that you describe, which is based not on full audit work but on monitoring.

Mark Roberts

The reason for the original criticism in the 2015 report was that we had a lot of feedback from interviews with people. They said that, at a local level, criminal justice boards had struggled in the aftermath of various organisational restructurings, for example the establishment of a national police force and the reorganisation of the Crown Office into a federal structure. A lot of people felt that the relationships that had existed at the local level of the criminal justice boards had broken down. That contrasted with the strong positive joint working that was going on at the national level through the Scottish Government justice board.

Recently, we have been meeting some of the key people who were involved with the original report—the Crown Agent, the chief executive of the Scottish Courts and Tribunals Service, and representatives of the justice directorate in the Scottish Government—to ask what has happened since.

Douglas Ross

So those are the people who are very happy about it. That is understandable. If you ask them, they are naturally going to be very positive about the process. I am just surprised that the Auditor General is writing about how good things are after just seven months, because it seems that you got feedback from quite a limited audience.

Mark Roberts

It is true that it is a limited audience. As the Auditor General said, monitoring is on-going. This is not a comprehensive, fully validated and tested piece of audit work. We will continue—

Douglas Ross

I am not saying that there are any issues but, from a politician’s point of view, I pick up some things locally that I am not content with. If I raise any questions, someone will say that the Auditor General is very supportive of what is happening because, after seven months, Audit Scotland is writing about the good work and so on. However, it turns out that that analysis is based on feedback from quite a small number of people, who clearly have a vested interest in ensuring that this works successfully. I just wonder whether that is the type of rigorous approach that we would normally take to such statements.

Mark Roberts

We intend to continue to monitor this and follow up with a wider group of stakeholders over a longer period of time. Our monitoring of the impact of our reports is not a one-off event. We are doing this 12 or 15 months after publication. My colleagues and I will continue to speak to a wide number of stakeholders to get a full picture. This is the feedback that we have had to date, but I recognise your point.

Caroline Gardner

It is probably also worth noting that one of the important findings from our 2015 report on the sheriff court system was the extent of variability across different sheriffdoms. In some sheriffdoms, there were big problems with communication, churn, and delays in the system. Others were managing things much better. One of our recommendations was that there was scope to learn from the places where things were working well and spread that good practice through the system. We think that that is starting to happen through the local justice boards—with the caveats that Mark Roberts set out for you.

The Convener

I will let Stewart Stevenson in with a supplementary if it is very succinct.

Stewart Stevenson

It is fairly succinct. Douglas Ross has raised that issue perfectly properly. There is then the broader issue of what auditing is. I want to test the Auditor General’s view of that against mine. First, there is a legal aspect: you have to sign off the accounts. The institution that is being audited has limited discretion over how accounts are presented, how things are counted up and documented, and so on and so forth.

However, the bigger aspect that we have been discussing is the “advice” that Audit Scotland gives—that is the word that I have constantly heard, quite properly. You are not responsible for running an organisation. The management of an organisation notes your advice and chooses which parts of it to implement. The management is responsible for accounting to you for its choices. In other words, you do not instruct the management; you point to areas that concern the management. You cannot be seen as taking anything away from the responsibility of the managers in an organisation.

I want to test whether that is your view. From your body language, I think that it is, but it would be useful to get that on the record.

The Convener

It would be helpful if you could couch your answer in terms of the Crown Office and Procurator Fiscal Service, which is specifically what we want to drill down on this morning.

Caroline Gardner

Thank you, convener. Yes, that view is absolutely right. That arm’s-length relationship is there for a very important reason. We have to be able to report on the Crown Office independently. There are international standards on auditing that set out very specifically the fact that we cannot take management responsibility at the level of preparing the accounts all the way through to developing a strategy for the organisation. That is so that we can report on how it is doing without fear or favour.

In the context of my role, that reporting takes place here and is to the Parliament when there are issues of sufficient significance. In the case of the Crown Office, we have not felt the need to do that so far. We have done it for a range of other bodies. I do not think that there are any former Public Audit Committee members here, but I regularly report on a body when I think that the failings are significant enough to escalate to Parliament.

Under my performance audit powers, reports such as this one on the efficiency of the sheriff court system are the way of providing that assurance and making recommendations for future improvement; there are a number in this report that are relevant.

11:00  

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

I have a question in the same efficiency and churn framework in which the convener’s questioning was orientated. I am interested in paragraph 3 of your written submission, which refers to witness costs as part of 15 per cent of the expenditure of the COPFS. Is specific data available on specialist witnesses and their percentage of costs in annual budgeting? Can that data be provided today or at a later date? We have looked at that matter in detail.

Mark Roberts

We do not have a breakdown of data on specialist witnesses, but the Crown Office might be able to provide that to the committee. Alternatively, we can get in touch with the Crown Office and get back to the committee in writing.

Ben Macpherson

I would be grateful for that. Thank you.

The Convener

I want to turn to something that was raised in a submission from a justice of the peace

. Short-term faults were blamed on

“the need to prioritise budgets”.

He specifically referred to the costs arising out of the

“decision to appoint Summary Sheriffs”

such as the

“compensation package ... and benefits packages paid to Sheriffs”.

Have those costs been quantified? Can you give the committee a figure for them?

Caroline Gardner

I do not think that we can give you a figure today but, as Mark Roberts said in response to Mr Macpherson’s question, we are happy to liaise with the Crown Office to get that figure to the committee.

The broader response is that that is why the workforce plan that Angela Cullen referred to is so important. I know that the committee has heard concerns elsewhere about fiscals and fiscal deputes on short-term contracts and the training of fiscals. That is why a workforce plan is so important for us. It is important to have a longer-term view of what the staffing is likely to be for different types of staff and to ensure that that is developed in a consistent rather than a stop-go way.

The Convener

That is relevant because there is the issue of fiscal fines and justices of the peace maybe now just nodding things through, whereas they had a much bigger role before. The JP pointed out that justices of the peace are volunteers, so their value for money speaks for itself. If a policy decision has been taken to appoint summary sheriffs, it would be good to quantify that in monetary terms as well as looking at what it means for what they do in court.

You mentioned training. The other issue that was raised in the JP’s submission was the cost of introducing the Judicial Institute for Scotland and the fines enforcement agency. Does Audit Scotland have costs that are associated with that?

Caroline Gardner

We have not looked at that so far, but we will clearly take it into account in planning future work in the justice system. The committee may well want to explore the matter with the Crown Office when it gives evidence.

The Convener

The JP was quite clear that work was carried out in those areas more efficiently under the old system, that the introduction of the new organisations has a cost, and that improvements were not necessarily being made. Therefore, it would be very good to quantify the costs.

Liam McArthur

I want to follow up the convener’s questions. I think that the Auditor General touched on short-term contracts. We have heard in evidence that people receive very high-quality and well-recognised training in the Crown Office and Procurator Fiscal Service and are released at the point at which the return on that investment is about to be realised. Is that a sensible approach for an organisation to take, particularly when budgets are under pressure?

Caroline Gardner

We produced a report on workforce planning across the public sector in 2013, I think. The purpose behind that report was to take a more strategic view of how organisations manage their workforce at a time when, on the whole, demand is increasing and finances are reducing. It is clear that it is not sensible for any of us to train people whom we do not have a role for in the longer term. The Scottish Courts and Tribunals Service, the Crown Office and our organisation tend to have peaks and troughs, and there is the question of how we manage those peaks and troughs and uncertainty about demand.

For any organisation, it is important to have a core of well-qualified, well-trained people who are able to do the job and who are building up the capacity and the confidence to do it in a way that is consistent and in line with the overall objectives that the organisation is trying to achieve.

Liam McArthur

To go back to the line of questioning that Douglas Ross was taking in other areas, you made a recommendation about this back in 2013. Certainly, all that we have heard in evidence to this inquiry is that it is still very much the modus operandi in the Crown Office, with no indication that it is likely to change or is beginning to change. Having made that recommendation in 2013, and recognising that budgets are not going to improve markedly, what steps would you take to see a change in approach that means that the Crown Office does not squander its investment in training by releasing people to other roles and having so many people on short-term contracts?

Caroline Gardner

As I said in my response to the convener, having a workforce plan is a key part of that—looking at what is likely to happen to activity levels; to different types of staff, to the way they interact with each other and to the way in which the work is organised. We have recommended, both at a national level and specifically for the Crown Office, the importance of having a financial strategy, a workforce plan and a digital strategy. We understand that all three of those are in hand for the Crown Office and we will look closely at how quickly they are developed and how comprehensive they are, but, as Mr Stevenson said, it is the Crown Office’s role to develop those now.

Liam McArthur

Absolutely, but presumably your role is to hold its feet to the fire.

Caroline Gardner

Indeed.

Angela Cullen

One of the things that we would expect to see as part of that workforce planning and strategy is the proportion of staff who are expected to be permanent. There might still be some fixed-term or short-term contracts to see the organisation through peaks and so on. In addition, I would expect to see the current status, where the organisation wants to be to meet its demand over the next five years, and how it will get there—for example, if it wants to change the ratio of permanent staff to short-term contract staff, how it will achieve that.

Liam McArthur

I have a question in another area. Before you came in, we were going through the figures and looking at the budgets for the COPFS over a period. There was a change in the way in which the figures appear. Previously, what was measured was spending in areas of work such as “Summary” and “Solemn”, but that changed so that what is measured is “Staff Costs” and so on. We could understand why that move made sense from an internal management perspective but, from our—perhaps selfish—perspective in looking at the work of the COPFS, it took us away from the information that we are trying to drill down into. For example, where a cost is being borne by the service and a move could be made away from certain types of trial processes, we might want to know whether savings could be made without diminishing access to justice. Do you have a view on the change that was made? From an auditing perspective, do you have any comments to offer?

Caroline Gardner

I am a member of the tripartite budget process review group, which was set up by the Finance Committee and the Scottish Government to look ahead. One of the things that I think we should be seeking to achieve from that review is more information that links the amount of money that we spend with what we get for it—outputs, such as the sheriff and summary courts, and the outcomes that we are seeking to achieve. In my view, the more comprehensive, easy to use and linked to performance information can be, the better it is. Mark, do you want to say something about the specific shift in this case?

Mark Roberts

I do not have anything specific to say—just that it presents challenges, especially when we are trying to look for long-term trends in tracking budgets, if there is a change in the presentation at the lower-level breakdowns. It presents challenges to us when we are tracking shifts in resources.

Liam McArthur

As I said, I think that we can understand why, from a management perspective, the Crown Office would want to go in that direction. I do not want to put words in your mouth but, from what you were saying, there does not seem to be any reason why that breakdown cannot be provided, as it was before—even alongside the figures for staffing and other cost provisions.

Caroline Gardner

I would be surprised if that information was not available within the Crown Office.

Liam McArthur

Would we be entitled to ask for those trends over the last short while?

Caroline Gardner

I think so.

Liam McArthur

Good.

The Convener

In your opening statement, I think that you mentioned that additional funding was provided for specific casework and to improve the performance data for domestic abuse cases, which you said was a national priority. The additional funding has been quantified. Have there been any unintended consequences for the rest of the service as a result of that policy?

Caroline Gardner

Are you asking about the policy of reducing the time taken for domestic abuse cases?

The Convener

Yes, and providing additional funding for specific casework.

Caroline Gardner

Mark, is there anything that you want to say about that?

Mark Roberts

I am not aware of any unintended consequences. As I said in response to Mr Ross’s question, we have not done detailed audit work on the performance data. We were particularly interested in performance in domestic abuse cases because, as you say, convener, that was a national priority and additional funding had been provided for it, so it seemed to be an appropriate area to focus on.

We have not looked more widely at performance in other cases during the less formal follow-up work that we have been doing recently.

The Convener

Do you intend to do that? We need to look at the whole-case scenario. A problem or an unintended consequence in one part of the system can cascade down to other parts of the system.

Mark Roberts

We will certainly keep an eye on the on-going monitoring of the sector and how the justice sector as a whole responds to our recommendation about refining its suite of performance indicators. We have no immediate plans to do any formal audit work on that in the same vein as we looked at it for the 2015 report, but we continually look at what we can include in our programme of work.

The Convener

I will delve a little bit deeper into that, given that dealing with domestic abuse cases is a national priority. We have heard evidence that cases are continuing when perhaps they lack a sufficiency of evidence. If that is the situation, cases are going further into the system, with costs increasing as they go. That is not efficient for anyone, it is not delivering a good service and it is certainly not a good use of precious financial resources. Can you comment on that at all?

Mark Roberts

I cannot quantify or provide any additional evidence. The Crown Office would be better placed to respond to such questions to see whether it has any data on any unintended consequences of that prioritisation, as you describe it.

The Convener

Clearly, the prioritisation will have financial implications—that is self-evident. I would hope that Audit Scotland would find a way to drill down into that, because it is germane to the problems that we are hearing about.

We have heard that fiscals are under huge pressure—my admiration for them is boundless, but they should not have to cope with that huge stress. Have you quantified how many days’ absence as a result of stress there are in the Procurator Fiscal Service? I believe that the situation is daunting.

Mark Roberts

Angela Cullen will correct me if I am wrong, but my recollection is that the average number of days lost in sickness absence in 2015-16 was 7.2.

Angela Cullen

I do not have the figure to hand, but I think that it was 10.1 days, and that the Scottish Government average is 7.2. The figure covers all staff in the Crown Office and Procurator Fiscal Service, not just the procurators fiscal.

The Convener

Yes, I understand that. There is a significant rise there and, again, there are financial implications and a knock-on effect in the Procurator Fiscal Service. Are there any figures that you can send or present to the committee on the issue?

Caroline Gardner

The Crown Office is better placed to let you have the figures. It might be useful to restate that, when we did the work in 2015, we found significant differences across the different sheriffdoms in how cases were being managed. I expect that that has an impact on the stress levels that staff, particularly fiscals, experience. It would be well worth exploring with the Crown Office what it knows about that and whether there are any correlations.

The Convener

But you would not look at that—or at its financial implications, which are significant—from an audit point of view.

Caroline Gardner

The 2015 report looked at the overall effect of churn, and Mark Roberts has talked you through the figures that we brought together to quantify the costs of that. The Crown Office publishes its sickness absence rates in its annual report and accounts. As the auditor, Angela Cullen makes sure that its processes for producing that information are sound. To us, the absence rates are one indication of the pressure on the system, which is a focus of our overall work in the area, and it is key for the Crown Office to address that through its financial strategy, workforce plan and digital strategy.

11:15  

The Convener

I am sure that you will have considered some of the issues that have been raised during our scrutiny of the Crown Office and Procurator Fiscal Service. Are there issues that have been raised that would cause you to reassess or review the areas that you have looked at so far and areas that it might be productive for you to look at in the future?

Caroline Gardner

That is a very good question. Before we came in, we were talking about the questions that had come up for us in reading the Official Reports of the committee’s pre-budget scrutiny sessions. An issue that we do not have an insight into from the work that we did in 2015 or through Angela Cullen’s audit work is the consistency of marking and how to get the balance right between having a more standardised approach and having discretion. Clearly, there is not a right answer at either end of that spectrum, but it felt to me in reading the Official Reports that something interesting is going on in that regard in the system as a whole, and probably in specific parts of Scotland.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I have a supplementary to the convener’s question about domestic abuse; I want to come at the issue from a different angle. Would you say that the prioritisation of domestic abuse offences has led to any efficiencies in the system in relation to such cases? Is it the case that, rather than the prioritisation of domestic abuse cases having an impact on other cases in the system, there are lessons that can be learned from the way in which domestic abuse cases have been handled that could be carried over into other types of cases without their having to be a national priority?

Caroline Gardner

I should start by saying that the legislation that set up the post of Auditor General specifically precludes me from commenting on the merit of policy. The fact that tackling domestic abuse is a Government priority is simply a fact, and I have no role to play in commenting on that. We will all have a view on the importance of tackling domestic abuse in Scotland’s public life.

My interest kicks in when the Government has set such a priority. I am interested in how well the Government and the various bodies in the justice system are planning to respond to it, which involves thinking through what the effect might be on Police Scotland, on the court service and on the Crown Office and Procurator Fiscal Service, and what that means for the way in which the work is managed between them.

It would be entirely proper for the committee to ask the Crown Office how it has gone about responding to the prioritisation of domestic abuse. It is also an issue that it should be thinking about in the context of its longer-term financial planning, as Mr Stevenson suggested. The Crown Office should be considering what other priorities it would like to escalate for the future and how it could make space for those at a time when, although the overall pattern of crime is pretty steady, we are seeing some quite significant shifts in its make-up. Given the increased focus that I imagine there will be on historical sex abuse and cybercrime, the COPFS will need to consider how it is responding to such pressures. That is at the heart of what it should be doing for its financial and workforce planning, and of the way in which the overall national justice board looks to manage the system in the interests of Scotland.

The Convener

That concludes our questions. I thank you all very much for attending.

11:18 Meeting suspended.  

11:22 On resuming—