Public Audit and Post-legislative Scrutiny Committee

Meeting date: Thursday, November 21, 2019

Official Report 631KB pdf

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Section 22 Report

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“The 2018/19 audit of the Scottish Prison Service”

Item 2 concerns the section 22 report, “The 2018/19 audit of the Scottish Prison Service”. I welcome our witnesses. We are joined by, from the Scottish Prison Service, Colin McConnell, who is chief executive; Kate Hudson, who is interim director of strategy and stakeholder engagement; and Melanie Allan, who is head of finance; and, from the Scottish Government, Paul Johnston, who is director general of education, communities and justice; Neil Rennick, who is director of justice; and Donna MacKinnon, who is deputy director and head of the community justice division.

We have two opening statements, the first of which is from Colin McConnell.

My SPS colleagues and I are grateful for the opportunity to meet the committee, in the company of senior officials from the Scottish Government with whom we work closely on all matters relating to the SPS, to discuss the significant concerns of the Auditor General for Scotland, Caroline Gardner, with regard to the immediate and longer-term sustainability of the Scottish Prison Service.

In a previous evidence session, both the Auditor General and Scott-Moncrieff, as the independent auditor for the SPS, directed the committee’s attention to the following facts about the current operating realities of the Scottish Prison Service. Since 2014-15, the revenue budget has reduced by 12.5 per cent in real terms, with a potential further real-terms reduction of 1.7 per cent this year. While the delivery demand on the SPS over the same period has fluctuated, more recently demand has grown at an extraordinary pace and complexity, with the prison population reaching historically high levels this year.

Staff costs represent more than 50 per cent of the SPS’s revenue budget, and around 85 per cent of its overall revenue budget is subject to on-going, mainly contractual commitments, which means that the proportion of committed spend is growing year on year. Private prison contracts, which are inflated by RPIX—the retail prices index excluding mortgage interest payments—plus 1.5 per cent each year, consume an ever-increasing proportion of SPS’s revenue resource, which, on the basis of a flat cash settlement, results in additional savings requirements from the public sector.

With those hard and perhaps uncomfortable facts as a backdrop, I believe that it is right, necessary and timely that the committee develops a good understanding of the serious day-to-day operational pressures that confront the SPS management team and our front-line staff, and of the nature and causes of those pressures and whether they are likely to pass quickly or to remain. As a result of its inquiry, the committee can help to determine what changes and improvements might need to be implemented if we are collectively to succeed in addressing the Auditor General’s fundamental concern, which is the need for a predictable, firm and sustainable operating basis for the SPS that is informed by not only the operational realities of today but the anticipated demands and performance expectations of tomorrow.

Thank you, Mr McConnell. I understand that Paul Johnston also has an opening statement.

Yes, I do. I thank the committee for the opportunity to provide evidence today. I agree with what my colleague Colin McConnell said about the importance of the issues that we are examining, and I welcome the committee’s consideration of them.

The Scottish Government’s priorities for justice in Scotland include using prison

“only where necessary to address offending or to protect public safety, focusing on recovery and reintegration”.

Scotland’s prisons face a number of significant challenges that Audit Scotland sets out clearly in its section 22 report. Many of those challenges are a consequence of the rapid increase in the prison population that began in 2018. That increase was not readily predictable and came after a number of years in which the prison population fell.

In comparison with a decade ago, far fewer people now receive custodial sentences each year, there are fewer short-term sentences and fewer people are convicted of crime that requires a life sentence. However, on average, those who go on to custody will receive longer sentences and spend a longer time in custody before being approved for release.

The profile of those in custody is also changing: there are increasing numbers of sex offenders, people with backgrounds in serious and organised crime and people who require support with mental health, substance misuse and physical and social care. Our prisons also face security challenges in identifying the ever-changing varieties of psychoactive drugs.

The Cabinet Secretary for Justice has acknowledged those challenges and committed to taking the action that is necessary to address them. Part of the solution involves building on the strengths that our prisons have. I highlight that both the current and previous holders of the role of chief inspector of prisons for Scotland have noted that, in general, our prisons are well ordered and well run, and they have commended the dedication and commitment of front-line prison staff working with those in their care.

Responding to the challenges in our prisons requires additional investment. During the current year, the Scottish ministers have made available additional funding to ensure that the SPS can respond to immediate budget pressures. Ministers have also agreed a multiyear pay deal for staff. In addition, they have committed to making a further substantial investment in modernising the prisons estate, including the new female estate and a replacement for HM Prison Barlinnie.

The solutions to the challenges that the Auditor General highlighted require collaborative leadership and sustained long-term commitment across the justice system, in the Parliament and among public services more widely. In our letter to the committee, we outline the range of actions that we are taking to deliver that change, with a particular focus on strengthening community justice services. We are happy to respond to any questions that the committee has.

Thank you, Mr Johnston. I will start with an opening question in response to both your statements. The Auditor General published her section 22 report, which to all intents and purposes is an emergency report, to highlight that there are problems in the system. As the committee has taken evidence, we have become really concerned, as we have dug into some of the issues facing the SPS, about the lack of planning for the service over the past 10 years.

Mr Johnston, you talked about the spike in prisoner numbers in 2018, but we heard evidence to suggest that some of that rise might have been predictable. Some of the other pressures on the service have been long term and very much predictable, and might even have been in your own hands. For example, there has been an underspend in the capital budget over the past 10 years. The committee is very interested to know why that capital budget has been underspent and why money keeps being handed back to Government when the new women’s facility has not yet been built and when Barlinnie—one of the oldest jails in Europe—is 50 per cent over capacity.

Staff sickness has increased over the past three years, but POAS warned you about that, and the pressures on prison staff, way back in 2013. What have you both been doing to anticipate and plan for the current situation?

I am happy to answer that first and then hand over to Colin McConnell. It is important to separate out—as you have done, convener—the different aspects of the issues that we face. On prisoner numbers, it is important to recognise that, over a significant number of years, prisoner numbers had been falling. From March 2018, however, there was a massive single-year increase in those numbers. I assure the committee that very detailed work is carried out day to day, involving colleagues in the Scottish Government and the SPS, and other justice partners, to model and anticipate prisoner numbers.

Exhibit 4 in the Auditor General’s report helpfully shows what has been going on with prisoner numbers and demonstrates some of the uncertainty that exists around the future direction in that respect. We have detailed modelling and we undertake very detailed work in that area; my colleague Neil Rennick can speak in much more detail about the nature of the modelling.

I recognise that we have been aware of—and have been working on—some of the other issues for a significant number of years. My colleague Colin McConnell could speak in detail about some aspects of those, such as staff sickness absence and the health needs of those in custody.

I will ask Mr McConnell to address those in a minute but, first, I want to drill down into the 2018 spike. What was that due to?

I turn to exhibit 5 in the Auditor General’s report, which clearly articulates the complex nature of the issues that we are considering. The spike was down to not just one factor but a whole range of them, as exhibit 5, which sets out seven factors, clearly shows. We could point to and discuss in some detail the legislative changes that have contributed to the increase in prisoner numbers, such as the ending of automatic early release. We could also point to the increase in the number of prisoners on remand; the reduction in the use of home detention curfew; the fact that fewer people in prison are getting out at the time that they used to get out; and the increase in sentence lengths.

That is my point, Mr Johnston. Forgive me for pointing this out, but in your first response to my question, I think that you said that the 2018 spike was unpredicted. However, exhibit 5 shows a number of factors that were predictable. The ending of automatic early release came through legislation that was approved in 2015. You must have known that the legislative measures that are mentioned in the report were coming down the line, because your department deals with them. How, then, can you say that the spike in prisoner numbers in 2018 was unpredictable?

What could not be predicted was the way in which the numbers would rise as quickly as they did. Other factors—such as the impact of ending automatic early release, on which we have detailed modelling—absolutely could be predicted. However, there are further variable factors, such as the reduction in certain types of crime, which had been keeping the prison population down, and the average sentence length, which we cannot predict with accuracy but has increased sharply. Therefore, a complex mix of factors has led to the increase in prisoner numbers, which, according to all our analysis, was very much at the upper end of what was expected. My colleague Neil Rennick could say a little more about that if the committee would find it helpful.

He can do that in a minute. Do you admit, therefore, that some of the factors that led to the spike were predictable?

Yes—some of the factors could have been predicted.

As Paul Johnston has said, we recognised those factors. We also recognised the ones that are reflected in the Auditor General’s report. Some of those were not new issues—for example, the growth in cases involving domestic abuse being identified, then feeding through into the justice system, and the growth in sexual offending. Those had become more apparent in the past decade, and they were reflected during the years in which the prison population was falling. Therefore, it was not simply a matter of the number of cases increasing and that resulting in an increase in the prison population because, to a large extent, that growth was already built into the numbers when the population levels were falling.

We had predicted the scale of the consequences of ending automatic early release. We well knew what its potential scale would be, because we knew how many prisoners were feeding through the system. The projection for 2018 was that even if the Parole Board for Scotland did not approve all the prisoners who might have been eligible for automatic early release, the maximum impact that that could have had on the prison population was 40 places. Therefore, it was not expected that that development would have an enormous impact in 2018-19.

The other unpredictable area was home detention curfew. That emerged as an issue only during 2018-19, so we were unable to see in advance the change that happened there.

As we go on, I can talk further about the actions that we took to mitigate all those issues and the work that we did through the justice board and other agencies to respond to that. However, we recognised those pressures; they were reflected in the “Justice in Scotland: Vision and Priorities” document, which was published in 2017, and in the work that we have been taking forward over the past few years.

09:15  

It worries me that the word “unpredictable” keeps coming up in the answers from the Government. We now have 8,700 prisoners in our prison system. We know what they were convicted for and how long their sentences are, and we know the legislation that is coming down the line and when it will be implemented, so surely it is a matter of collecting that data and having good data analysis. Why are there so many unpredictable factors?

It would be helpful to clarify that point for the committee. The word “unpredictable” is not our word; it was used by Audit Scotland in “An overview of Scotland’s criminal justice system”, which was published in 2011. Audit Scotland said:

“The criminal justice system is demand led, but understanding that demand is not straightforward.”

It also said that

“Demand can ... be unpredictable”,

and that the nature of the criminal justice system is not as simple as seeing the number of cases that are feeding through and predicting how that might feed through into business in the courts and the prisons. If that was the case—indeed, that is part of the work that we have been doing over the past few years—we would expect the prison population to be falling, because crime has fallen significantly over the past decade. Over the past decade, the number of cases feeding into our courts has fallen. That reflects the changes in the nature of crime.

A much more complex set of actions is going on than purely the number of cases that are feeding through. It relates to the changing nature of offending, the changes in sentencing and, importantly, the changes in the way in which people are feeding through our prisons and how likely they are to be released. A range of different factors, which are genuinely difficult to model and predict, are impacting on that. Our justice systems planning group, which specifically looks at those issues, has been doing that work. That funnel grows quickly after a short period of trying to predict prisoner numbers, because a range of complex factors, which are not purely about the number of cases, drive the prison population.

I take that point, Mr Rennick, but the Audit Scotland report says that, over the past decade, 400 additional prisoner places have been taken as a result of convictions for domestic abuse.

That is correct.

However, we all knew that that legislation and the focus on domestic abuse were coming down the line, because Kenny MacAskill had been talking about that in this Parliament for years. Things like that were predictable.

They were predictable, and I am incredibly proud of the work that staff in my directorate have done on domestic abuse—including the new domestic abuse offence and the aggravator that was introduced before that—as well as the other work, in association with the Crown Office and the police, that has been delivered in that area.

We knew about those figures. Ahead of the new offence, a large part of that increase grew after 2014-15. There was a rapid rise then. As we moved towards 2018-19, that levelled off. The main increases in domestic abuse and sexual offending convictions happened before we came into this year. In 2017-18, the number of convictions for domestic abuse and sexual offending levelled off.

Thank you.

I was going to come back to Colin McConnell’s point on sickness, but one of my colleagues will pick that up in a later question. Liam Kerr has a supplementary.

You said that you could not predict what was going to happen with regard to numbers. However, you must have planned for a worst-case scenario. If the numbers were greater in previous years, you must have envisaged a scenario in which they could go back to that level. If that is right, what will happen if, perhaps in the near future, the total capacity is exceeded? What contingency plans does the Scottish Government or the SPS have to deal with that eventuality?

The SPS and the Scottish Government work on contingency plans and keep the numbers under constant review. My colleague Colin McConnell might like to say more about that. We regularly receive updates and briefings on a range of scenarios and risks, to ensure that we are ready to deal with those that are considered most likely.

It is useful to discuss these issues, because it is generally recognised that the SPS is in a difficult place. We have too many people in our care for the facilities that we have. However, as has been said by the chief inspector and our own auditors, despite that, the SPS is performing comparatively well. We should recognise the considerable efforts that men and women at the front line are putting in and the results that they are achieving.

I will address the challenge that Mr Kerr has set out in two parts, the first of which relates to the concept that somehow we are dealing with a spike in numbers. I do not think that we are. Given the reasons behind the prison population going up in the way that it has, the constituent parts of which have been set out by Neil Rennick and Paul Johnston, it is unlikely that we will see any remedying of those pressures any time soon. The approach that we in the SPS are taking recognises that those pressures are likely to remain for many months, if not longer.

With that in mind, contingency planning is crucial. This morning, we unlocked 8,290 people in a system that is designed to care for 7,676. The reality is that, in effect, we are about a medium to large-sized prison short. It is only because we are able to work together and put in place appropriate measures and contingency plans that we can keep the service going. As I said, this morning we unlocked 8,290 people. We have achieved that extra capacity primarily through doubling up. People are doubled up in cells in which we would otherwise prefer to have only one person living. Also, we have leveraged some accommodation around the system that perhaps we would have preferred not to use.

It is important that the committee takes assurance that the SPS is not at breaking point. I have already expressed that view to the Justice Committee. Members of this committee who are also members of the Justice Committee will remember my evidence there. The service is not at breaking point. I have been able to satisfy the director general that we could leverage further capacity in the system, if we have to, that could allow up to a further 500 people to be contained within the SPS. I will not pretend to the committee that that would be a very pleasant experience for the people who were sent into our care or the people who are working in the system.

Where is that capacity, Mr McConnell?

That capacity would consist of further doubling up. There are cells that as yet have only one bed in them, and our intention is that we will, in effect, double up every cell in the SPS to have at least two people in them. There are other facilities, such as Castle Huntly, the open estate, which is currently running with about 100 vacancies, but that is because of the risk management approach. Let us be clear: if the SPS comes under such pressure, I will review with colleagues the mechanisms and processes by which people are assessed as being suitable for going to Castle Huntly so that we can maximise every space in the system. That brings with it risks, both for the people who live there and for those who work there. However, if the population goes that high, we will have to take those risks.

Thank you for that. I have a brief question for Paul Johnson. I presume that some scenario planning goes on and that you make forecasts. Do you have copies of those forecasts and the assumptions that underpin them for, let us say, the past four years, since the legislation changed?

We have detailed information. If it would assist the committee, we can provide information on forecasts for the past and current periods, as well as forecasts that look ahead from now.

It is important to say that the scenario for extra places that Colin McConnell mentioned is not the preferred approach of ministers or officials.

We have been taking forward a wide range of work in order to try to ease pressures on the prison population. Members will all be aware of the Presumption Against Short Periods of Imprisonment Order 2019, which was agreed by Parliament in June. You will also be aware of the Management of Offenders (Scotland) Act 2019, which was also passed in June, to encourage use of, and to extend the availability of, electronic monitoring. We are putting additional resources into programmes including supervised bail and the Caledonian system, which relates to domestic abuse. We are again looking at the guidance on home detention curfew to see whether we can ensure safe release of prisoners.

As I said, a wide range of work is going on to ease the pressures, because it is important that we take action and do not just drift on, expecting numbers to continue to increase.

On the point that Mr McConnell raised about the extra 600, I think, prisoners that could be accommodated by doubling up, is it your preference to double up at SPS prisons, rather than using Addiewell or Kilmarnock?

I recall the previous evidence session at which Addiewell and Kilmarnock prisons were represented. I am sure that the committee is aware that the contracts that we have with those facilities cap the populations that they hold. For Addiewell, the maximum cap is an additional 96 places and, for Kilmarnock, the maximum cap is an additional 192 places. We have already leveraged 96 of those places at each prison.

We have already advised the management team at Kilmarnock that we want access to more places, but the committee will have to be aware—it is part of our planning and is, perhaps, the reason why we are here—that the places are extraordinarily expensive. There is a set-up fee of just under £200,000 to have the application considered, then a daily fee for each person whom we send there. The committee might not want to go into detail, but I can be very detailed about how that would work out and what the associated costs would be.

Again, it is important that the committee understands that we are not trying to choke off the public sector side of the Scottish Prison Service. We are making sure that every opportunity to leverage reasonable residential space is being maximised.

There is a set-up fee of £200,000.

It is £178,000, or something of that order.

What is that for? Do you have to pay that every time you use Kilmarnock?

No. The cost is for access to the final tranche of 96 places. There is a set-up fee, plus—

That is surely not a recurring cost.

No—it is a one-off set-up fee.

We have been using Kilmarnock for years to get extra capacity, so you must have paid that fee ages ago.

As I say, there are different tranches. That is part of the complexities of the contracts. They are what they are. We have already taken 96 places at Kilmarnock and 96 at Addiewell. The remaining capacity at Kilmarnock, if we want to access it, comes with that set-up fee, which we have to pay up front. It is a one-off cost, but it is substantial. Thereafter, we pay per capita for the spaces that we use.

I turn to exhibit 2, which focuses on sickness absence. Why is the sickness absence rate so high? Why is it so much higher than the rate in England and Wales?

Our increase in sickness absences is entirely attributable to long-term sickness absences. There has been a reduction in short-term sickness absences over the same time period.

With long-term sickness absences, the complexity of the conditions that are involved has required further analysis over the past 12 to 18 months. We have done that in quite a lot of depth and made comparisons with England and Wales.

We see that stress is the single biggest cause of that increase in absences, and has accounted for about 42 per cent. Again, the complexity has required further analysis of whether it has been work-related stress or stress that is unrelated to work. Through our monitoring we have been able to identify preventative measures that the SPS can take to support staff before they reach the point of suffering work-related stress. Much of that stress is to do with complexities and challenges—the complex role and the challenging circumstances of an overcrowded estate.

09:30  

We have been doing work on policy. Our policy varies from that of Her Majesty’s Prison and Probation Service, which has different trigger points for managerial interventions on absence. That has required work with our trade union side. However, we have seen an increase in long-term absences related to stress.

I will come back to stress in a moment. You mentioned policy. What is wrong with the current policy that has led to where we are today, and what changes are you proposing or implementing?

The policy needs to be more proactive in terms of support and wellbeing of staff and how we support a culture of wellbeing for people who work in prisons. The two do not necessarily go hand in hand. Both the trade union side and the SPS hope that we can be more proactive in that regard. As I have said, the trigger points in the process of case management of absences could be slightly different: we could intervene earlier and with different measures.

On trigger points and intervening earlier, the second bar chart in exhibit 2 shows that over the course of three years the number of days lost to stress-related sickness has more than doubled. That does not sound like, “We saw that something bad was happening, we took the necessary action and we made improvements.” It sounds like, “We are failing”, does it not?

There is no quick fix in dealing with long-term absences relating to conditions such as stress. We also see that in our attrition rate. We see the highest spike in attrition among staff in our residential officer grades, in which 40 per cent of attrition is due to retirement but 30 per cent is due to people having to leave the service after a period of absence.

What is so wrong with the working environment? Clearly, something is wrong when you are having such high levels of sickness days and such high levels of stress-related sickness. They have doubled over a three-year period.

We recognise that work in a custodial environment takes place in incredibly challenging and complex circumstances. We cannot necessarily correlate the rise in absence with working conditions—that should be made really clear. We are seeing a rise in stress and some of it is not related to work.

So, do you see no correlation between the working environment and the rise in stress, or do you see some correlation?

I see some correlation, which is apparent in the figure that I cited.

You said there was no correlation—I think that it would be completely off the mark to say that there is no correlation between the working environment and stress.

As I emphasised at the beginning of my answers, there is a balance between absences that are because of work-related stress and those that are because of stress that is unrelated to work. I addressed that in my first point.

The level of assaults on prison officers has also risen significantly: the rise has been severe. What do you put that down to? Is it purely because of prisoner numbers, the environment or heavy drug use in some prisons? What is the cause of the rise in assaults on staff?

Overcrowding plays a part. Certainly, cell sharing can create tensions that might not ordinarily exist, although that is largely managed well by our staff. When we look at performance data for the SPS during the time of that increase, we should remember that there has been significant change in the management of the estate. For example, the smoking ban has been introduced. Actually, for the figures to rise as modestly as they have in a period when rising tension was greatly anticipated is testament to the work that our staff have done to manage that. So, overcrowding plays a part, and where there are tensions staff have to intervene between prisoners, and there are assaults on staff.

So, on Colin McConnell’s suggestion about doubling up the rooms, are you saying that that makes the situation more difficult to manage and causes an increase in the numbers of assaults?

It can do that.

So, I guess there is a correlation between the number of assaults, the number of sickness days and the number of stress-related absences.

I do not have such data to hand, but we track and monitor cases in which assaults lead to periods of absence.

Do you think that there is a correlation?

I would have to check the data, but I would not say that there is a significant correlation.

It sounds as though we would, if we were to go with Colin McConnell’s suggestion that we double up people in the remaining rooms, increase the risks of having more difficult prisons to manage, of having more assaults on staff, of having more sickness absence and of more days being lost to stress in the long term.

The evidence on cell sharing presents a range of positive and negative impacts on the custodial environment and on people who are living in custody. There are risks, but they are connected more generally to overcrowding. It causes limitations on accessing services: the more people we have in prison, the longer it takes to deliver day-to-day services. That has an impact on individuals and can cause tension. I would not say that the risks relate solely to cell sharing, which is just one aspect of overcrowding.

However, cell sharing is an aspect; you mentioned it in an earlier answer. Colin McConnell made the point about increasing capacity by doubling up people in rooms. Has there been a correlated increase in the number of staff in the prison estate, and, crucially, in mental health support, general medical support and other avenues of beneficial support that are available to staff, with the rising number of prisoners? If there has not, does not that mean that there has been a failure on the part of the Scottish Prison Service?

Our corporate staffing complement is designed by establishment to service a population of 7,669, I believe. We target our recruitment to stay within 1 per cent of that complement, and we have no financial capacity to recruit beyond that staffing complement in our pay budget.

That does not really answer the question.

You are asking whether there is a correlation and whether we have increased our staffing to adjust to the numbers.

Yes. I am also asking about support services.

As my colleagues have alluded to, in each establishment, the operational risks of overcrowding are monitored and reviewed weekly. If it is within our remit to change staffing complements to address services, that might be done through regime restriction: residential officers who are attached to vocational activities or work parties might be redeployed to more critical services. Some services might be restricted so that we can provide the person-centred one-to-one care that we need to provide. We can redeploy staff as needed. There has been an increase in that, and we monitor the situation closely. However, an increase in staffing to accommodate the prison population has not happened.

In paragraphs 21 and 22 of her report, the Auditor General says that the SPS has had to ask officers to volunteer to spend more time covering sickness absence. Because they are not eligible for payments, the SPS made ex gratia payments to them over three years, and the value of those payments has increased from just over £2 million to more than £4 million. How do you run an organisation when you need to ask staff to cover the jobs that need to be done?

The Auditor General also said that a number of ex gratia payments could not be verified back to the hours that were worked. Payments were made for hours that could not be determined, and people could not trace back to when those hours should have been recorded.

Before I give the explanation, it might be helpful for me to say something about the language so that people have a better understanding. We can call them “ex gratia payments” or whatever we like, but in this case I think that the Auditor General was referring to overtime. The SPS does not have an overtime system per se. The mechanism, methodology and accounting procedure that we apply come under the heading of “ex gratia payments” but—to be clear—this is about overtime payments.

If we go back to the discussion about the population and the pressures on the system, we can provide evidence to the committee that prisoner officer recruitment has, as Kate Hudson said, remained pretty static over the period—within about 1 per cent or so of the funded staffing figure. It should not surprise the committee—or anybody else who is listening to the evidence session—that, if the work demand goes up, we need more staff to do the work.

On the previous explanations that have been given—which I absolutely share and support—we took a view based on the fact that the population rises and falls over time, which it does. For example, when I took over the service in May 2012, there were more than 8,400 people living in the Scottish prison system; in 2017, there were just over 7,300 people living in it. That was a huge swing down, and we are now seeing a swing back.

The question is at which point we balance the system out. As I said, the system is balanced out at a sort of midway point—at between 7,700 and 7,800—which is what we are resourced for. When the number goes beyond that, we pay overtime in order to get staff to work more time, until such time as the peak drops off. Then the overtime would switch off, and staff would go back to working normally. However, what has changed this time is that we have not yet experienced a turnaround. That is why I made the point earlier that we have to be careful not to mislead ourselves by imagining that what is happening at the moment is a spike. It does not appear to be a spike: the number will perhaps stay at this level for some time to come.

If I may get on to the second part—

No. I have questions on that. I understand the practicalities of what you are saying, but if that overtime is not in the terms and conditions, you are asking people to come in voluntarily to do the work. That cannot be an easy way to run an organisation.

I do not understand or accept the premise that overtime is not within the terms and conditions.

The report states:

“Prison officers are not eligible for overtime payments, so SPS has been making significant voluntary, non-contractual (ex gratia) payments”

to cover the increased hours.

Again, I say that I do not quite understand the premise. Our staff work additional hours voluntarily—we cannot compel staff to work additional hours. They work them voluntarily and—as the committee will see from the figures—they do so very willingly: a lot of hours are worked. Staff come and work voluntarily and successfully, and they get an overtime payment for it. That is all recorded through our accounts.

The dip test in which five of 10 payments could not be reconciled was mentioned. As our auditors were finalising our accounts for last year, we undertook to have our internal audit unit look at those five payments. As we have already advised our external auditors, they have now been reconciled; the internal audit unit went through the whole audit trail and confirmed that those payments were absolutely appropriate and can be accounted for. In fact, it went further and did a much larger sample, and found that although there has been some modest drift, in a system that is coping with the volume that has been described, our internal audit unit is very clear that those are not material drifts and that they would be expected in a system of that capacity, that deals with that volume of payments.

Have you now cleared that with Audit Scotland?

Confirmation that the payments have been reconciled has been given to our external auditors. I imagine that our external auditors have advised Audit Scotland of that.

Did you find that the payments were okay by checking after the event, or did the person who was approving them know that they were okay to approve at the time?

That is the issue. Our independent auditors took 10 cases from thousands, but could not reconcile five of them, in the time that they had available to them. Our internal audit unit looked at the cases and completely reconciled them.

09:45  

I will go back to the first question and the issue of overtime. You do not have an agreement with the employees for overtime; you have an informal arrangement whereby you make ex gratia payments, which may be quasi overtime, but you do not have a structure in their contracts relating to overtime.

I take your point. In the way in which you are describing it, we do not have an overtime arrangement with our employees.

Is that something that you are working towards and that you desire to have?

If I was going with the logic of your question, it would be desirable, but I do not think that it is necessary. However, I take your point and, if the situation continues in the longer term, we could change the arrangement and more appropriately describe it as an overtime arrangement.

Mr McConnell, forgive me, I am not an accountant, but I do not understand the explanation. You talked about the independent auditors—I take it that you are talking about Audit Scotland.

No; I am talking about Scott-Moncrieff.

Did Scott-Moncrieff come in on behalf of Audit Scotland?

Each year, our books are independently audited by Scott-Moncrieff.

Scott-Moncrieff took 10 cases and could not reconcile five of them, which is 50 per cent.

Yes.

Your own internal audit function then looked at the five cases that could not be reconciled by Scott-Moncrieff and reconciled them. Is that right?

Yes.

Why was Scott-Moncrieff not able to reconcile them when your internal auditors were able to do so?

I do not know.

Was Scott-Moncrieff not doing its job properly?

That is not for me to say. Understandably, Scott-Moncrieff reported that, of the 10 cases that it had audited, five could not, at that time, be reconciled. We agreed with Scott-Moncrieff that our internal audit would look again at those five cases.

And all 10 cases were fine.

Absolutely; they had been reconciled.

I have a supplementary question. Once your internal auditor said that it could reconcile the five cases, did Scott-Moncrieff, as the external auditor, then give the reconciliation the okay as being legit?

We have a professional internal audit—

I know all that, but my question is straightforward: did Scott-Moncrieff come back and say that the reconciliation that was done internally was legit—yes or no?

Did Scott-Moncrieff say that it had made a mistake?

No, but that needs to be put in context.

What is the context?

The context is that, because we have a professional internal audit unit, assurance is taken by the external auditors on the work that the unit does. The work is periodically checked and externally validated, so I fully expect that our external auditors would accept the view of our internal audit. A full report is being produced.

It is the professionalism of the external auditor that I am concerned about and why it could not reconcile those cases. As a member of the Public Audit and Post-Legislative Scrutiny Committee, I find it highly unusual and, so far, inexplicable that one set of auditors could not reconcile them, but another set, which is equally professional, could do so.

It is a matter of fact.

I think that we need to probe the Auditor General on that one.

Absolutely. It is a small sample, but I am a strong believer that a sample of nine or 10 is indicative. The fact that Scott-Moncrieff is saying that 50 per cent of the cases cannot be reconciled but the Prison Service itself is saying that it is actually fine is a bit worrying for the committee, would you not admit, Mr McConnell?

I would come back, convener, and, if I may, reflect on your behaviours—

On our behaviours?

No—I mean in terms of how the situation is being described. It was not a case of saying, “It is fine,” with a wave of the hand. Our internal auditors have appropriately and diligently tracked the claims right through the process.

That is fine, Mr McConnell, but we have to scrutinise the report that the Auditor General gave us, and she quite clearly said that 50 per cent of the ex gratia payments could not be reconciled.

In the time that our external auditors were working on the matter, they could not reconcile five out of the 10 cases. Our internal auditors have professionally examined those five cases, and they have provided a written report with evidence to demonstrate that those payments were appropriate and can be approved.

To go back to Mr Neil’s question, has Scott-Moncrieff been able to look at those cases since your internal auditors concluded that?

Scott-Moncrieff is aware that the cases have been audited and cleared.

Does it agree with your conclusions?

We have not had that discussion, but I doubt that it would disagree.

Surely, if an external firm—Scott-Moncrieff, in this case—says, “You’re getting 50 per cent of these cases wrong. This is a substantial financial risk to your organisation,” you would then want that firm to come back and confirm that your workings are correct.

If it would at all service the committee for us to provide further assurance, I am sure that it could be arranged.

Okay. I think that we need to explore that point further with the Auditor General.

I will pick up one point on the ex gratia payments. Perhaps you have data that would substantiate this. It seems to me that, if increasing numbers of your prison officers are going off with the stress that they are under, to ask them to do overtime—rather than bringing in new officers to do the job part-time—might be a risk and could exacerbate that stress. Has that been taken into consideration?

Part-time working has not been taken into consideration. If you bear with me, we need to understand that it takes more than a year to get a trained prison officer—

Sorry, but can I get you to answer the first part of my question: have you considered that overtime could lead to increased stress?

Yes—it would be silly of me not to recognise that in a pressurised environment, of which stress is a key element, inviting staff to spend more time in that environment would itself be stress inducing. It is fair to say, however, that we do not really have tremendous difficulty in getting staff to work overtime.

What does your data tell you? Surely you are looking at the data and you are carefully monitoring the staff who are doing overtime. Are they suddenly going off? What is happening there?

Kate, do we have any data on that?

Our spend on ex gratia payments has increased by 60 per cent, and our increase in absences is about 15 per cent. Both are rising, but they are not rising at the same rate. The pressures on the ex gratia system are coming from a range of deployment factors. That could include people on restricted duties after a phased return to work, who are not able to undertake full duties, and it could cover vacancy shortfall or the restrictions on staff deployment.

Do you know whether the people who are going off sick are the people doing overtime? Surely you must know, because you know who is doing overtime and you know who is going off sick. You must be able to correlate the two.

I do not have that data to hand, but we could certainly look at that.

Okay—fine.

Colin McConnell has highlighted a very important issue around what the normal staffing complement of the Prison Service should be. We have agreed that that needs very careful consideration in the coming days. There are two factors at play. One is the number of staff and the use of ex gratia payments; the other is what is going to happen to the prison population.

We have heard about the factors at play that indicate that the prison population may remain high. We have not yet had a chance, however, to discuss the range of work that is under way in any detail. Much of it, falling within Donna MacKinnon’s area, is designed to ensure that alternatives to custody are used more and more, so that the numbers reduce. That gets into the analytical work that, as we have indicated, we could share with the committee. We need to make a judgment on that in order to agree on what the permanent staffing complement of the Prison Service should be.

I wish to ask about the prison officer professionalisation programme, which I will refer to as POPP, since that seems to be appropriate. Nearly £14 million has been paid to operational staff as part of that process but, at the end of it, there does not seem to be anything to show for it. What success criteria were applied to it? Additionally, SPS paid a further £2.45 million to non-operational staff to settle equal pay claims, which are apparently related to the process. How did that happen?

If you do not mind, Mr Beattie, Kate Hudson will deal with the first part of your question and I will deal with the second part.

Our programme for organisational reform is first and foremost evidence based; it is in keeping with the national ambition for public sector reform and it is aligned specifically with criminal justice sector reform. The Scottish Government’s ambition for workforce development, as set out in its 2017 document “Justice in Scotland: Vision and Priorities”, calls for a

“highly skilled, qualified and compassionate”

workforce.

We have developed a range of enabling factors to support that workforce development, and POPP was a package of elements aimed specifically at front-line workers. An overwhelming body of evidence shows that front-line staff, and prison officers in particular, have the greatest opportunity to influence and have an impact on the rehabilitative care of those who live in custody. POPP was very much a focused programme of operational reform.

The payments in question were made in order to secure the continued engagement of the prison officer workforce during the time when we were at the table to discuss what operational reform would look like. I cannot stress enough how significant that was. Prison officers, as a profession, have not been afforded the investment or attention that other caregiving professions have experienced over a number of years. The cultural challenges that the profession has experienced in the past four or five years are those that the nursing profession, for example, encountered decades ago. The payments were made to secure the continued engagement of prison officers in that process and in discussions about organisational reform. It is to our regret that, in a ballot in October 2018, the reward-and-recognition offer that was attached to those proposals was rejected by members. However, that in no way indicates a suspension, or indeed a ceasing, of our progress on that journey.

You have not described what the success criteria were. How do you measure value for money?

First and foremost, when I reflect on the improvements in custodial care and the consistency and stability that we have seen in Scottish prisons over the past four or five years, I would say that it was money well spent.

When the process was initiated, you must surely have decided, before you decided to spend £14 million, what the success criteria would be and what you were going to achieve by the programme.

The success criteria were a co-produced package enabling elements of organisational reform that were targeted specifically at prison officers. The package included things such as continuing professional development, revised entry standards and regulated practice. Those standards were co-produced with the POA at the table, to the extent that the POA, with the support of SPS management and the Scottish Government, put forward the proposal to its members in a ballot. We very much fulfilled our ambition of co-producing a programme of operational reform that could be put to a ballot.

I am not hearing anything solid on achievements and what you are going to get out of the process.

Are you asking where we are on the journey now?

No—I am asking a different question. When you started on the £14 million expenditure, you had obviously decided that, at the end of the programme, you would have achieved certain goals.

Yes.

Those goals would be set with regard to the levels of development for prison officers and so on. Were the goals all clearly laid out, and were they achieved?

Some of those goals involved the development of first-line managers, for example. That development process commenced in 2016 and it continues today. The introduction of new e-learning environments for continued certification and self-directed learning was implemented this year. Revised entry standards, values-based recruitment and the introduction of a professional pathway for operational staff from 2020 are all milestones that we have achieved.

You are telling me what is in the programme, not what you have actually achieved.

No—I am telling you what has been achieved. Those are all things that we have achieved.

Are they?

Yes.

I will move on to another question. The Prison Governors Association did not support the payments and was excluded from the discussions about those payments and the principles around them. Why was that?

As I have stressed, the evidence is overwhelming in respect of the unique opportunity that prison officers have to play a role in criminal justice reform. It was certainly never our intention to single out that area permanently, but it was the focus of our initial investment in professionalisation.

It is important to draw a distinction between the Prisoners Governors Association, which is the representative union body, and the role of governors and managers in the development and design of the programme. The design of the programme was absolutely led and championed by our senior management colleagues, who engaged in the process. The PGA was engaged separately throughout 2016, 2017 and 2018 in the progress of the programme. However, the programme was not targeted at the development of senior managers, and the impact of the operational reform would have had very little impact on them.

We heard evidence from Nigel Ironside that the PGA was completely excluded.

No, that is not true. We had a catalogue of meetings that took place with the PGA in which the programme was discussed.

So you are saying that the evidence that the committee received on that was incorrect.

 

10:00  

There is a difference between whether the PGA was engaged in the process and whether it got the outcome that it wanted from the meeting. Were we able to adjust the programme of operational reform to address its concerns about reward and recognition? No, because that was not the aim of the programme. Was the PGA engaged in the programme as it was designed? I note that it was designed and led by a number of governors, so, yes, it was engaged in that process.

But the PGA said that it did not support the payments and that it was excluded from discussion about the payments.

I am sorry, Mr Beattie—I know that that is what was said, but I think that the evidence is to the contrary.

Do you have evidence to the contrary?

Yes, and we would be very much content to share it with the committee.

I am sure that the committee would be interested in seeing that evidence.

To continue on the issue of the payments by the Scottish Government, I certainly remain sceptical as to the firmness of the success criteria. What considerations were taken into account when you decided to make the payments? Were you satisfied that adequate success criteria were in place, that there were proper goals and that those goals were achieved?

The Scottish Government was involved in the development and evolution of the POPP and ministers gave their approval for the issuing of the specific payments that the committee is discussing today. As has been set out, that was done on the basis that the payments were an important way of securing the continued engagement of the workforce in the transformation programme. That was at the heart of the case, and it was accepted by ministers.

However, I take very seriously what the Auditor General says at paragraph 17 of her report. I would wish to ensure that, should such circumstances ever arise in future, in either this or another context, we are really clear about the shared expectation on the success criteria for payments. I am keen to have further dialogue with Audit Scotland about that.

That is fine going forward. However, I am concerned that we have spent £14 million and yet I am not convinced that I am seeing goals and achievements at the end of the process that are commensurate with that expenditure.

At the time, the success criteria were fairly straightforward—they concerned the on-going participation and engagement of the workforce in the development of the POPP. That was secured, as we have heard. There was a positive environment for engagement with the workforce, although, as has been said, it is a matter of significant regret that, ultimately, the full package was not supported by the workforce. I think that it would be fair to say that that could not have been readily anticipated, given the positive engagement that took place. Nonetheless, it is important to recognise that aspects of the programme have been capable of being implemented, and other aspects are still being developed in the environment of the new pay deal for prison officers that has recently been agreed to.

Everything that I am hearing leads me to believe that no adequate goals were put in place and there was no adequate assessment of achievement at the end of the process. You can tell me if I am wrong, but that is what I am hearing.

I will be straight with you, Mr Beattie: I think that you are wrong. I will put the matter in context. The situation with the SPS and prison officering, if I can use that term, has remained pretty static. That was a part of the business case that is being missed here. It has been pretty static for 30 years.

The committee took evidence from Phil Fairlie, who is chairman of the POAS and chair of the SPS trade union side. He said that, in 2013, prison officers were so disgruntled with their lot that they were about to ballot for strike action. When I started in my role in May 2012, I walked through the door when prison officers had literally just been on strike.

We need to put the situation into the context of the deep frustrations that our key workforce felt just a few years ago and the fact that they were taking industrial action to reinforce their case for change and for investment in the grade. I want to ensure that the committee understands the criticality of having POAS and prison officers working with us and not standing outside. It is a known fact that, if prison officers in Scotland go on strike, the Prison Service is on its knees in about 48 hours. The criminal justice system—

With respect, I think that we are aware of the impact of strikes in the public services. Mr Beattie, have you had a sufficient answer to your question?

I have had a sufficient answer, but I would like to find out whether the £2.45 million for the non-operational staff was anticipated, budgeted for and part of the programme.

Will Mr McConnell address that point?

Yes, but I am disappointed that time is not available to give you more context. I would be happy to engage with the committee separately about that.

We are happy to hear about the context, but we were getting into the impact of the strike and we are well aware of that.

I was about to move on.

Okay.

On the additional payments that were made to non-prison-officer staff, Kate Hudson has already set out that the focus of the change programme was on prison officers. I reiterate that prison officers had been clamouring for a modernisation programme for decades and that was the opportunity to do it. The original human resources advice on which we worked was that the payments were for prison officers only, because that was the sole group who would be affected by the changes that we were planning and co-authoring with them.

As time went on, there was a legal challenge to that position. Essentially, because of how our job families were constructed, people in equivalent grades were entitled to the payments. We had to decide whether to follow through on the original advice and defend that in court, which would have been costly and unseemly, or whether to take the view that the fairest way to deal with the matter was to make the payments to staff in related grades, which is what we did.

So that was unanticipated and unbudgeted for when you started the programme?

Indeed; that is an accurate description.

You said earlier that the system is not broken. I absolutely accept that that is the case compared with what is happening down south and given the work that you and your staff are doing to manage a very difficult situation. However, there are challenges.

As of yesterday, you were more or less 500 prisoners over capacity, and there is the possibility of your having to deal with another 500. You are having to double-up people in cells, which, as Neil Rennick said earlier, is not the Scottish Government’s intended policy for the reasons that we have heard about that approach contributing to assaults and all the rest of it.

I am not hearing what the way forward is from either you or the Government. Your revenue budget is down by 12.5 per cent in real terms while the prison population is rising exponentially. As you said, there could even be additional increases beyond that in the months and years ahead. Where do we go from here? The capital programmes for Barlinnie, Inverness and Greenock are behind schedule, and it is clear from the overcrowding that those are essential medium-term solutions to the problem. Where is the plan to avoid the system breaking down?

I will start. It is important that we look at the way forward. A key aspect of that is the much greater use of community alternatives, which we know are more effective than prison sentences for many people. My colleague Donna MacKinnon can give a brief picture of the intensive work to increase the use of community alternatives significantly and, ultimately, to reduce the prison population, if the committee would find that helpful.

With all due respect to Donna MacKinnon, we are aware of a lot of that. That was not my question. Even with that drive towards community sentencing, the prison population is rising exponentially. We are putting people in double cells, which is going backwards, not forwards. We are substantially behind in the capital programme and the revenue budget is down 12.5 per cent in real terms. I want to hear when you will solve the crisis in accommodating the number of prisoners that you are likely to have in the next five years.

There are a lot of different dimensions to that question, but I am happy to deal with each of them. In this year’s budget, we have made additional resources available to the Scottish Prison Service.

How much?

We have made up to £24 million available.

What does that do to the 12.5 per cent figure?

Neil Rennick might have the exact figures to hand, but if that £24 million were to be drawn down this year, we would be looking at an overall increase in the budget for 2019-20. That is on the basis of—

Wait a minute. According to the Auditor General’s report, there has been a 12.5 per cent real-terms decrease in the past few years. Would that additional £24 million make that decrease one of, say, 10 per cent or 8 per cent instead?

I do not have the percentage figure in front of me, but Neil Rennick might have more information.

That was not how it was calculated. Clearly, it is a real-terms increase as regards—

What is the total budget? What is £24 million as a percentage of the total budget?

It is about 8 per cent. I will double-check the information and give you the exact figure.

So does that amount reduce the decrease to 4.5 per cent? Was that money guaranteed for next year and the year after? If you do not fund the SPS, you cannot expect it to achieve the policy objectives that you, quite rightly, have laid out.

Absolutely. As Paul Johnston said in his opening statement, we recognise that investment is part of the solution to the challenge. We have provided additional money in the current year to assist with the pressures that Colin McConnell identified for us and to support those, including additional prison places and investment. We have also said that we are willing to look at other opportunities for investment—for example, at Barlinnie in the medium term, until a new prison can be constructed. We recognise that part of our approach must be ensuring that Colin McConnell is supported with additional resources.

We can talk separately about the estates position. It certainly is not the case that the Scottish Government has not provided capital funding for the prisons estate, either over the long term or more recently.

So, is the £24 million all revenue funding? Will you clarify that for me?

Yes, it is.

Right. What will happen with the capital funding? I see that you have identified a site for what we might call the new Barlinnie. When do you expect that—and the new prisons in Inverness and Greenock—to be built?

I will allow Colin McConnell to come in on the timing details. For the current year, we have provided an element of funding to the Scottish Prison Service for the provisional work on the replacement for Barlinnie, as identified by the SPS’s estimate of its costs for that period. We are engaging closely with Colin McConnell on the costs for the replacement, which are in our infrastructure investment plans. In the current year, there is a substantial amount of money for the female estate; things are dependent on the tendering process.

It is behind schedule as well, is it not? When will we get the new Barlinnie? Will someone answer that?

If you do not mind my addressing you directly, Alex, I will respond to that. The replacement for Barlinnie will open as soon as possible, which is likely to be in 2024-25, assuming that everything works well.

I will also comment on the strategy for the women’s estate, because there is learning to be had from that. Members who sit on the Justice Committee will recall my evidence to it on why the replacement for Barlinnie has taken so long. I can tell this committee that nimbyism is pretty much alive and well: no one really wants to have a prison in their back yard.

The replacement process has taken way too long, but it took a long time for us to identify a site that someone was prepared to sell us and that we thought was suitable to buy. As members will know, the new site is pretty much on the other side of the road from Barlinnie. The location is likely to require considerable remedial work, because it used to be the site of gas works. There will have to be a clear-up and all the rest of it before proper engineering considerations can begin on what that means for the overall build programme.

We estimate that the new site will be complete in 2024-25, but I must add a cautionary note in relation to what was mentioned about the women’s programme. The work has slipped by a year, and might yet slip a bit further. We are as frustrated with that as anyone, but it is to do with where the market is at. I do not know how much I can give away in a public space, but we have really struggled to get compliant bidders for the scope and scale of the works. It has had to be reset twice to go back to the marketplace. Potential contractors tell us that Brexit has an impact on that, because of workforce and other concerns. Taking all that into account—

10:15  

Sorry, Mr McConnell—will you clarify something? You said that the contractors are worried about the scale of the works, but the women’s estate is moving to a much smaller unit. A site in Dundee has been approved. I have seen the plans—the unit is not large. It strikes me that the scale of the works would not be a problem.

I perhaps used an inappropriate term. I meant the commercial value.

Are the contractors saying that you are not giving them enough money?

We want to give them as little as possible, of course. However, it is the overall value to the market that is making it challenging to get contractors of an appropriate size to come forward.

In the end, we got only two to come forward and, in the past few months, both asked for a pause and more time while they considered their offer. We agreed to that. Both came back with inflated costs and extended timescales. If I may say so, that is the reality of the marketplace that we are in. I use that as a cautionary tale, because we would really like Barlinnie to be replaced by 2024-25, which I think is doable, but, ultimately, we are at the whim of the market to deliver that in that timescale.

We quite often see capital projects in the public sector being packaged up, which makes them so large in scale that it limits who can bid for them. Have you considered dividing it up, so that multiple contractors can do different parts?

It is actually the other way around, Mr Sarwar. It is not about breaking up the projects, but making their commercial value high enough for the big companies to come forward. For example, let us go back to Alex Neil’s welcome challenge on where the new prisons for Barlinnie, Highland and Greenock are. If I were to imagine sitting on the other side of the fence, in the world of construction, I do not know whether any construction company could take on a contract such as that. However, if there was something of such a scope and scale that would bring more players into the market, we would potentially be in a better position.

We could pursue that in a lot of detail, and I think that the committee will need to look at it, but we have limited time today.

Clearly, the new facilities will not come on board any time soon. We are talking about at least a four or five-year gap before we get the new Barlinnie, not to mention the other facilities. Let us assume the worst for that period, because the worst is already happening with the exponential rise in the number of prisoners. As you said, if you were pushed to do so, you could probably accommodate another 500 prisoners by doubling up. However, that is completely the reverse of what we are trying to achieve in the criminal justice system.

Do we not need to look at other things? For example, as you know, I have serious concerns about the self-change programme. If it was working properly, one of its benefits might be to reduce the prison population. It would not do that by large numbers in any one year, but it would nevertheless make a contribution.

I am told that the oldest prisoner in the prison system in Scotland is 99. Do we really need to lock up people of the age of 99 in prison? I am told that, in particular, sexual offence cases that go back a while have added to the number of prisoners in the older age profile, whose social care and healthcare requirements put pressure on prisons. Further, we know that a high percentage of the people in prison are there as a result of their mental health problems as much as anything else.

Should we not be looking at more imaginative solutions? We should do something urgent about the self-change programme, which is not working in the way that it should be. Would some of the people with mental health problems not be better placed in secure mental health units? Surely to goodness, we can get better accommodation for 99-year-olds.

Some of those issues will be for policy colleagues, but I will respond directly to your multifaceted challenge. I agree with everything that you said. There are too many people in our prisons, but that is the reality and we have to try our best to care for them.

I am sorry to interrupt, but do we not need a more imaginative approach? Obviously, the Government would need to be involved in that. Is prison the best place for older prisoners and people with severe mental health problems? We should look at that issue imaginatively, not just because of overcrowding in prisons, but for prisoners’ benefit and rehabilitation.

If more money went into the self-change programme, and we found that some people would be more appropriately housed in secure units, at least one of the benefits would be that that would relieve the pressure. However, the main benefit is that it would be the right thing for prisoners.

I wonder whether that is more appropriate for policy colleagues to address.

I heartily agree that we need to look at all possible options for addressing the situation. That is why today, after this meeting, my colleague Donna Mackinnon will be heading to a community justice leadership group meeting, which will be chaired by the Scottish Government and the Convention of Scottish Local Authorities. The group will look at what we can do to improve the availability, prior to conviction, of community alternatives to remand and custodial sentences. There is a real urgency to that work. It is being taken forward and it needs to deliver more.

We keep hearing that. In years gone by, Kenny MacAskill drove a lot of that stuff, which had the impact of reducing the prison population. In the past few years, the energy has gone out of that. We need more energy and action. We keep hearing about all those groups that meet, but what are they doing? It is time that we got action.

I will give you a couple of statistics to help with that. At the beginning, the convener mentioned what has happened over the past 10 years. Eleven years ago, “Scotland’s Choice: Report of the Scottish Prisons Commission” was published. It identified that the key driver of pressure on the prison population was short-term offenders. There had been a growth in the number of people coming into prison for short periods and churning through the prison system. Over the past 10 years, that situation has been transformed. In 2017-18, compared to the figure a decade before, 5,000 fewer people went into prison. Of all those convicted, there has been an increase in the proportion of people who receive community sentences. We have made substantial progress in the areas where you want to see that.

I am not denying that.

However, other factors are feeding in.

The foot has to go back on the accelerator—big style.

Absolutely. I hope that we have not taken the foot off the accelerator.

I was interested to read the recent research by Cardiff University, which looked around the world at what helps to reduce prison populations. The research said that we need to keep moving with a multiphase, long-term approach and that single solutions will not solve the problem. Doing that requires long-term commitment at a political level from the Government and, as has been said, it requires the wider engagement of agencies in areas across the system, such as health, housing and social security. We are trying to drive that approach forward and that is reflected in the work that we have been doing.

I was going to ask some questions about the capital underspend and the delays in the estate, but Alex Neil has covered those areas. Instead, I will ask a question about Kilmarnock prison.

As you know, I am the member for Kilmarnock and Irvine Valley. For a number of years, representatives have asked about the contract with Kilmarnock prison in Bowhouse, which has, I understand, been in place for 20 years. Has the contract ever been reviewed or changed in that period?

To my knowledge, there has never been a fundamental review in that period. That is fairly typical of contracts that exist for prisons not only here, but more generally. There are on-going discussions. We have a contract monitoring and management team, and both sides to the contract can seek to vary it—not substantially, but particular elements of it. I am aware that there have been variations to the Addiewell and Kilmarnock contracts over time, but they have substantially remained the same.

How do we know that the operational contract is fit for purpose and is delivering value for money if we have not really looked at it over that period?

If I may say so, that is one of the downsides of 25-year contracts that are signed on a commercial basis. I assume that, at the outset, the person who offers the contract thinks that, over the period of the contract, they will get a good deal and that the person or company that offers the service thinks likewise. There is a mutuality to it.

On how we measure whether the contracts are value for money, that assumption is probably made at the time that the contract is signed. However, there is constant monitoring of the delivery requirements that are set out in the contracts for Addiewell and Kilmarnock. The chief inspector of prisons has a role. As you know, under the inspection regime, about every three years a prison is substantially inspected against the national inspection standards, and commentary is made on the delivery of services.

I will give you a couple of examples that have been given to me. Steve Farrell, who gave evidence in the round-table session, said in a letter to the committee that he

“took the opportunity to raise the perverse system of operating that sees ... contractors charged for successfully finding contraband”,

such as mobile phones. He went on to say:

“Charging for the successful recovery of”

such things, which results in the prisons becoming safer, seems to discourage rather than encourage

“private prisons from being proactive in their approach.”

What do you say to that?

That is an interesting presentation. The reality is that, in all prisons, the challenge is to keep things out. For the contracts, there is a point in the prison up to which we would expect the service provider to detect and find things. The fines—or service credits—are applied only when stuff gets beyond the inner security seal of the prison and into the prison. We have to be clear that the contracts are established in a way that sets a boundary by which the contractor is expected to detect items and keep them out. A service credit is leveraged only if they go beyond that point. I understand how that can be presented as a perverse incentive, but the incentive is to keep stuff out.

Where does the fine money go? How much have you recouped in fines from Kilmarnock prison in a given year?

If you do not mind, I will ask my financial colleague to deal with that question.

Over the past three years, the service credits for Kilmarnock have been £500,000. Like any other service credits for non-performance, the money is offset against expenditure for the year in the contract.

Another point has been made over the years. Would such an amount of money not be better reinvested in purposeful activity for the prisoners, rather than its being pulled out of the system? A lot of issues have been raised about the purposeful activity point, too. Instead of fining the contractor for doing things well, could the money not be reinvested for the prison population, the services and the estate, particularly at Kilmarnock and Addiewell? Is that not a good idea?

It is a reasonable proposition, but the thing to keep in mind is that the contracts are specifications of what services have to be delivered. Those specifications are quite tight, and it is only when the service delivery is not being made or sustained that a service credit is leveraged. It would seem a bit odd to then reinvest in something that is not delivering.

10:30  

Given the line of questioning that Mr Coffey is pursuing, I will cycle back to evidence that was presented previously. That evidence perhaps gave the impression that, from a regime delivery perspective, the private sector prisons are somehow way outperforming the public sector prisons. They are not. There is a bit of a startling figure. Sixty per cent of the total regime hours that have been lost across the Scottish Prison Service have been in the two private sector prisons. Forty per cent have been lost in the other 13. To go back to the understandable challenge that is being made, why would we effectively take a service credit from somebody who is not delivering and give it back to them to deliver more that will potentially not be delivered? That is a perverse incentive.

Okay. I understand that the contract is up for renewal in five years. What is the thinking on that?

For Kilmarnock, there is about five years to go. For Addiewell, the contract runs through to 2033, I think, so there is a long way to go for Addiewell.

For Kilmarnock, renewal is five years away. Are you well prepared and thinking about the future there and what that might look like? Will you look at the contract and some of the aspects that I have mentioned to see whether mutual benefit can be derived in the system?

The direction of travel—I understand that the Cabinet Secretary for Justice has reinforced this position—is that the prison will revert to the public sector at the cessation of the contract period. I know that that is five years out, but it is already on our radar. There is a lot of experience of moving from contractor to contractor in England and Wales, which we learn from, but we are already beginning to look ahead to working intensively probably about two years or so out with the contractor and Scottish Government colleagues to ensure that the transition is as smooth as possible, assuming that the political position does not change.

So Kilmarnock prison will come back into the public sector.

It will come back into the public sector.

I would like a few short clarifications, particularly on Willie Coffey’s line of questioning. You said that Kilmarnock prison will come back into the public sector. Who currently owns the asset?

We have a technical expert here. However, as I understand it, the whole asset will revert to the public sector. That is written into the contract.

Right. I appreciate that I am coming at the issue without information, but would that potentially be at no cost to the public sector?

Yes.

I understand.

I go back to Willie Coffey’s line of questioning earlier on. Can Colin McConnell or Paul Johnston provide us with the comparative costs of a prisoner in an SPS prison and a prisoner in Kilmarnock prison, for example, so that I can compare like with like in respect of the costs of accommodating prisoners? I presume that a cost is written into the private prison’s cost per prisoner that covers the building of the asset in the first place. I may be wrong, but can you provide that comparison for me?

As part of our key performance indicators, SPS publishes the cost per prisoner place, which is based on design capacity. For 2018-19, that cost was £35,601. However, that is based on the design capacity of the service, and not on actual numbers. We can calculate a comparison for Addiewell and Kilmarnock only based on what the contract costs us during the year and the number of places that we have called on, so they are not true costs per prisoner place. We do not have Addiewell’s and Kilmarnock’s running costs, so there are caveats on the calculation. However, a rough calculation is that the cost per prisoner for Addiewell is £47,500 and the cost per prisoner for Kilmarnock is approximately £27,000.

I have a more general question. I am picking up that there is a bit of extra capacity in the two private prisons, which is being called on. Have private places been called on in previous years? Has there been a spike this year? In any event, was that not budgeted for at some point in previous years?

Yes, indeed. As I understand it, when I arrived in 2012, all the extra places in both prisons were active, so the SPS was paying out for the total number of spaces. As I have explained, as the prison population dropped, those places were decommissioned and, in effect, the resources went back to the Scottish Government over time.

Barlinnie is operating at 50 per cent over capacity, we need a new prison, and there is talk of a replacement for Greenock. I am really concerned about the women’s estate. Just a month ago, human rights experts went into Cornton Vale. I have been there, too; the conditions are horrendous. It has been accepted in the Parliament for a number of years that there needs to be a move to custodial units.

Mr McConnell, I am still not clear on your explanation of the tendering process. I know that you are a lot closer to it and have more knowledge about it than I do, but could you not bundle up or debundle? I am sure that there are contractors that are willing to build the facilities. I would like a clearer answer to that, if you do not mind.

I am also concerned about the capital underspend, which is happening year on year. It is not just down to the tendering process. We have been told that the reason for the underspend in 2018-19 was the slippage in the capital programme, including in the women’s estate. In 2017-18, the SPS handed back its capital money to Paul Johnston because of delays in repairs and maintenance programmes. I do not think that that had anything to do with the tendering process for new buildings. In 2016-17, the SPS handed back the money to Paul Johnston because of the slippage in Cornton Vale and, again, because of the women’s strategy. In 2015-16, the reason was the ministerial decision not to proceed with a female prison in Inverclyde. In 2014-15, it was the delay in acquiring a suitable site for HMP Highland.

Year after year, the Scottish Government has given the SPS money to build new prison facilities. It looks as though the fault lies partly with ministers, but it is also down to the SPS’s maintenance programme and tendering process.

Why can you not get this stuff right? Given that we have facilities that are failing, why do you keep handing money back to the Scottish Government?

That is an absolutely fair challenge. I will ask Mel Allan to pick up on the detail. I share your concerns about Cornton Vale. We now have a preferred contractor, so all those difficulties have been worked through, but they have been torturous.

So you now have a contractor for the custodial units.

Indeed. We have a preferred contractor, which is why we are able to say that we anticipate the completion of the building site by 2021. That is our current position.

Okay. So that money will be spent.

Yes.

That is good news for the women’s estate.

I am sorry if I was not clear about that earlier. Perhaps I took a bit too long in explaining some of the difficulties that we encounter.

Is it the same contractor that will build the units in Dundee and Glasgow?

I cannot comment on that.

Is that commercially sensitive information, or do you just not know?

I am not au fait with who it is.

May I ask Mel Allan to respond to your concerns about capital spend more generally?

Yes.

We have reported capital underspends for the past five years. Cumulatively, those underspends come to about £42 million, £35 million of which relates to 2015-16 and the announcement that Inverclyde would no longer be a women’s facility, which resulted in a change in direction for women’s facilities. That £35 million was not redeployed by the Scottish Government, so it was shown as an underspend in our books for that year. That is the most significant capital underspend that there has been.

The other point to note is that, because we are funded on an annual basis, it is difficult to commit to longer-term projects—specifically infrastructure projects. We need a five-year funding commitment to move those forward.

Paul Johnston, why do you keep giving the SPS capital money and then taking it back at the end of the year, when it is partly ministerial decisions that prevent the SPS from spending the money?

We work very closely with SPS colleagues on that. As Colin McConnell set out, a number of factors have caused slippage and delay. I emphasise that we want the women’s estate, in particular, to be built without further delay and we want to get on with constructing the replacement for Barlinnie. We are working closely with the SPS on what the multiyear capital requirements will be for that. The committee will appreciate that we set budgets year by year. The SPS is an executive agency and, in common with all executive agencies, it has budgets that are fixed year to year. That does not take away from the need to do intensive multiyear planning. That has been happening and will continue, because we want to get those establishments constructed as quickly as possible.

We heard evidence in an earlier session, which I am sure you will have read, from some witnesses who thought that the money was never intended to be spent—that it was always intended to be handed back.

It is absolutely not the case that, in the budget that is approved by Parliament, we pass capital money to the Prison Service with the intention that it will be handed back.

It is important to say that there is no advantage for us in that. The capital needs to be spent on the women’s estate and we will have to find it in future years if it is not spent this year. If it is not spent, it just adds to the pressures and does not provide any benefit for us.

I have a final point on that. People who visit Barlinnie and are familiar with it know that the facility is not up to scratch and they know that Cornton Vale desperately needs to be closed and replaced with more modern facilities for the very vulnerable prisoners who are there. Mr Johnston, would you accept that, for the public watching this meeting who know all that and see the SPS handing back the money for those buildings every year, that seems unacceptable?

I can see why the pattern that you have set out—

The Auditor General for Scotland set it out, not me.

I absolutely accept it. I can see why it causes concern and that is why I am determined that we will work closely together to ensure that the women’s estate is completed as quickly as possible and that work on Barlinnie is completed at the same time. The issue is currently under discussion with the SPS to ensure that we have the right level of capability and expertise, drawing on whatever expertise is available from across public services, to ensure that the urgent requirement for those buildings is met.

Forgive me, but on page 13 of her report, the Auditor General says, with reference to HMP Barlinnie and HMP Inverness:

“There is no funding available to replace these two prisons.”

If you look on a year-by-year basis, you will not see the capital funding required for Barlinnie in an annual budget, but I have to take some issue with that comment. I can confirm that ministers have recognised the need for the construction of Barlinnie and confirmed that we will make resources available in future years for that capital investment.

You are going to make more money available.

I confirm that there is money for the cost of Barlinnie available in the budget for this year, but the sum is very small because it is just for the preliminary work. We all recognise that it will be a significant capital cost, but that will come further down the line, because we only identified a site this year.

The committee will hear from the Auditor General after you leave and she will give us her views on that. If we want to pursue any points further, we will write to you seeking clarification. Mr McConnell, can you guarantee that the women’s units in Dundee and Glasgow will be open by—when are they due?

By 2021. A guarantee? My goodness, convener!

It is 10 years since the Angiolini report and the issue has been on-going.

Yes, it has. As I have said already, I assure the committee that, as custodians of the system, we want those facilities as soon as we can get them. I give the committee my absolute personal assurance that SPS will do everything that it can to get those facilities up and running by 2021.

10:45  

I have one quick question. Given the difficult circumstances that the Prison Service is in and the need for strong leadership during this period, who thought that it was a good idea to send two of the three executive directors on secondment and put in place interim bodies?

I did—and it is working well. Let us be clear: we have opportunities, and it is a necessity, to ensure that our senior people are well developed and well rounded, so that they add value not just to the SPS but the civil service cadre in general. That is, in effect, part of the civil service guidance on workforce development. It has allowed us to pull through colleagues who have quite a different background; indeed, one of those colleagues is sitting in front of the committee today. Those colleagues bring other skills, knowledge and experience to how the service runs. As chief executive officer, I can tell you that I have two colleagues who are getting fantastic development experience in other areas of public service, and that I have two colleagues who have replaced them who are adding different skills and approaches and are making just as effective an impact on the business.

Are the secondments within the civil service?

One is within the civil service and the other is to a non-departmental public body, Scottish Canals.

How long are they for?

One is for five years and one is for two years.

Five years seems an extraordinary length of time.

It is a chief executive officer role, so it is about their having impact in that business as well. It is not just a case of their going out and coming back in. We have to be reasonable with the business into which the person is going in order that it gets a return from the secondment. Nonetheless, I say again that those people will be of enhanced value to public service in general when those opportunities come to an end.

However, if a person is filling a very senior post on an interim basis for five years, will they ever come back to their post?

That is a good point to raise and, in fact, they may not—they may go to other areas of public service. However, that is the added value; they do not necessarily have to come back to the Prison Service. As I said, we have fantastic opportunities to bring in people with different skill mixes, experience and offers, in order to make sure that the business remains vibrant and capable of meeting the challenges—which, in my view, it is.

I will go back to the point about Barlinnie, which Colin McConnell said he hoped would open in 2024 or 2025. From the evidence that the committee has heard previously, we know that the conditions in the existing Barlinnie are severe. There is required maintenance work outstanding and there is overcrowding. We know how overcrowded the general estate is, but Barlinnie is particularly overcrowded. Is the remedial work that needs to be done for it to continue to exist being done? If we end up having a tragic incident at Barlinnie that requires either part or all of it to shut, we will be in a dangerous situation. What contingency work and planning are being done for that situation, and what remedial work is happening to make sure that it continues to function as best it can until the new Barlinnie is open?

Over the past 10 years, £30 million has been invested in Barlinnie alone in order to keep the prison in a viable operational state. We are continuing that this year—there is significant investment in Barlinnie.

What level of investment?

A further £1.2 million is being spent this year. With the support of Scottish Government colleagues, we will continue the investment in Barlinnie through to the point at which we move to the new prison with the working title of HMP Glasgow.

Can you remind me of the second part of your question?

What contingency measures are in place for a crisis at Barlinnie that meant that either part or all of it had to close?

As the committee knows, Barlinnie is a big site. Part of the contingency planning that we have been doing has been on the basis that it is a prison that has been in constant use since 1853 or something like that. We are always live to the possibility that something at Barlinnie could go wrong. In fact, probably about two months ago now, we had a complete failure of the water supply system in one of the wings, which is for about 400 people. That was a fairly major failure at Barlinnie, but our contingency plans kicked in and we were able to bring in water tankers. Water was piped up into the tanks, and that kept going until such time as the valve work that had failed was fixed.

We have contingencies around water, electricity, heating and so on. However, the nub of Anas Sarwar’s challenge was about what we would do if there was a significant infrastructure failure that required us to decant some of the accommodation, which goes back to where I was earlier. We have to be realistic about that, as we would move the pressure elsewhere in the system. Taking that example—

I am sorry to interrupt. It is an important question, so I allowed Mr McConnell to answer it. However, we are running short of time and it was quite a detailed question for the end of the evidence session. If there is more information on that, could you write to the committee, Mr McConnell?

Of course.

A quick question please, Alex Neil.

I will be very brief. I just want to ask for a comprehensive and up-to-date briefing on the self-change programme giving the throughput of numbers, the number of people who are graduating, the waiting list and the challenges that face the programme. That would be extremely helpful.

Could you write to the committee with that as well, Mr McConnell?

Of course.

That would be very helpful. I thank you all very much indeed for your evidence this morning.

10:52 Meeting continued in private until 11:23.