 Good morning, and welcome to the 16th meeting in 2017 of the Finance and Constitution Committee. We have apologies this morning from Neil Bibby, and can I ask those who have mobile phones to put them on at least in a mode week that won't interfere with proceedings? I'm most grateful. The first item and agenda today is to decide whether to take item 3 in private. Are members agreed? We are agreed. The next item on our agenda is to take evidence on the Domestic Abuse Scotland Bill's financial memorandum from the Scottish Government bill team, and I welcome to the meeting Philip Lamont, Patrick Down and Kevin Philpot. Members will have received copies of submissions received on the financial memorandum, so we'll just get straight into questions. I'll leave it to Kevin, because I think he's the senior Philip. Sorry, Philip, apologies. I knew that because the clerk told me that before we started, and I still get it Philip, I'll leave it to you to decide how you're going to feel the questions. A number of local authorities have, in response to the financial memorandum, raised concerns that the bill might lead to increased demand, for example, on children's or housing services, which hasn't really affected the financial memorandum, and other local authorities have provided contra-evidence to say that the financial memorandum represents a reasonably accurate picture. It would be useful if you could explain to us how you went about producing the financial memorandum, what input service providers had to producing that memorandum, and whether you consider now in the light of the evidence that it's been received, whether that requires any amendment. We started from the premise of looking at the direct costs of the bill. What's in the bill is the creation of a new offence of domestic abuse, and there's some auxiliary provisions associated with that. We were, to a large extent, focused on the direct costs to the justice system of introducing a new criminal offence. We started dialogue with the Crown Office because they are very knowledgeable in terms of the number of current cases that go through the court system in relation to domestic abuse, to try and estimate what impact having that new offence will have on the number of cases that go through the system. In order for a case to go through the system, a report has to be made to the police, or indeed it just needs to come to the attention of the police. It then has to be passed to the prosecutor. A decision has to be made to prosecute. There's enough evidence that goes to court and then the eventual disposal. What's laid out in the financial memorandum is very much looking at the direct costs of having a new offence. Picking up on one of the elements that some local authorities have raised, we would accept that there is a gap in relation to criminal justice social inquiry reports, because we are estimating around 650 additional convictions a year in relation to domestic abuse. Many of those, if not all of them, will require a criminal justice social inquiry report, so that's a fair bit of feedback from local authorities in that respect. I think that what we would say in respect of some of the other issues raised in terms of support for housing support, for victims of domestic abuse, et cetera, we would acknowledge that the bill may have some sort of impact on that area. We do think that that's more of an indirect cost because we are not legislating directly to provide for that support. Indeed we hope that the creation of the new offence will, in due course, lead to less domestic abuse taking place. There is an argument for saying that, while we accept and acknowledge the comments made by some local authorities, though not all, as you've indicated, in respect of those indirect costs, we're not entirely convinced that it would be appropriate to put estimates within the financial memorandum, because we think that those are more indirect costs. We do accept on the criminal justice social inquiry reports that would be a direct cost, because those are required where someone has been convicted, is a waiting sentence and if a court asks for one criminal justice social work, are required to provide one and we are estimated approximately 650 additional convictions a year, so that would be a gap in the financial memorandum when we accept that. Have you managed to cost what that gap would be at that stage? We haven't yet costed that. I would say the volume of 650 convictions in a court system and a criminal justice system, where there are thousands and thousands of convictions, it's not, I wouldn't say it was significant overall, although I do accept for individual local authorities, it may be significant, but still 650 across the whole of Scotland over 12 months, it's not, I wouldn't say it was that significant. James. Obviously, what underpins this legislation is that a new offence has been created for domestic abuse in order to capture more incidents of domestic abuse and lead to successful prosecutions. I'm just interested in the calculations that underpin the financial memorandum for that, so you've come up with a figure for a 6 per cent increase in the number of cases it would be taking forward. Can you give a bit of explanation as to how that 6 per cent was arrived at? I think that we acknowledge that it's difficult to estimate the extent to which the creation of a new offence of domestic abuse will lead to an increase in the number of cases prosecuted in the courts, an increase could arise either from behaviour that is not currently criminal, which it becomes possible to prosecute using the new offence, and just from general increased public awareness of domestic abuse, meaning that victims of domestic abuse are more willing to come forward and report to the police than perhaps they would otherwise be. This central estimate of 6 per cent is based in part on work done by the UK Government in 2014-15 to estimate the likely impact of the offence of controlling of coercive behaviour in an intimate or family relationship. They arrived at this figure of 6 per cent. Their offence is in some respects wider than ours in that it covers family relationships that aren't between partners. In other respects, we think that it's a narrower offence because the definition of coercive and controlling behaviour is narrower. One of the reasons, therefore, in the memorandum that we have given these other estimates of what the effect of a 2 per cent rise or a 10 per cent rise in the number of cases will be is that we accept that there is a fair degree of uncertainty about exactly what the impact of this new offence will be. Perhaps a useful bit of background context is that the number of cases with a domestic abuse marker resulting in a conviction recorded by Crown Office in the last 10 years has increased pretty dramatically already. I think that 10 years ago there were around 5,000 and the most recent year I think that around 12,000 people convicted of an offence with a domestic abuse marker. That might be a sign that the scope of further increases is perhaps not as great as it would otherwise be, but I think that we'd acknowledge that it's hard to say for certain. How confident are you in the 6 per cent figure, bearing in mind from your explanation that basically what you've done is taken that from research based on a change at UK level? I think that we've used the UK Government figure and we've also looked at the two areas where we think would drive such an increase. So we think generally the creation of the new offence so that people, perpetrators, victims, family and friends of victims are more aware of what is domestic abuse will drive a general increase in reporting. That includes things that are already against the law, so cases where abuse is currently being undertaken before the law changes but in the future people will be more willing to come forward. The way that the offence works is that it extends the criminal law to cover psychological abuse for the first time, which can either be very difficult or cannot be prosecuted under the existing law. The combined effect of those two things, coupled with the experience and the estimates down south, led us to the central estimate of 6 per cent, with a margin of uncertainty of 2 to 10 per cent, which is why we have given those figures in the financial memorandum. We know Crown Office and Police Scotland, who we work closely with on the financial memorandum. Both consider that and some local authorities well consider that to be a reasonable central estimate. I won't overstate it. There is clearly uncertainty and challenge. One of the areas of uncertainty is because this is not just a new offence that is criminalising behaviour that is not currently criminal. It also captures some behaviour that already is criminal but will be able to be prosecuted in a different way in the future and separating that out from truly new cases that cannot be prosecuted is very challenging. What would you say to those who say that the figure might appear on the low side on the basis that you calculate that there would be 1,178 additional cases brought for prosecution, whereas the police currently report that they attend 28,198 incidents where no crimes were recorded? One of the reasons why Police Scotland record more incidents of domestic abuse than crimes is because the recording standard for domestic abuse that they use is to record any incident that might amount to a crime of domestic abuse. They are required, under the recording standard, to include incidents of domestic abuse, even where a crime has not been committed. For example, a neighbour hears some shouting going on and they get called to a house and then they speak to the parties and they are satisfied. No crime has been committed. They will still record that as an incident of domestic abuse. We are not criminalising that in the future, so we do not think that, out of approximately 28,000 cases or incidents of domestic abuse that are not currently recorded as crimes, that our offence is going to come along and sweep all those up. We think that a small proportion will be caught by the new offence. As you have outlined, just over 1,000 additional cases marked for prosecution each year is the central estimate. You think that that is reasonable, but the new legislation will capture just over 1,000 and these 28,000 cases at the bulk of them will remain unprosecuted? They will remain unprosecuted because there will not be crimes. The example that I have given you there is a relatively standard type of example that Police Scotland will have to deal with. They will get called out, or indeed they may just witness it themselves. They often will speak to the parties and they will come to the conclusion that no crime has been committed. Certainly the way our new offence works, in the example that I gave you, a crime would not be committed in that situation, but there will be additional cases of the order that we have suggested. I would like to refer to the evidence that was put in by Scottish Women's Aid, because I am interested in their preventative spend angle. You might not be able to answer this, but in their Scottish Women's Aid evidence, they are suggesting that the overall picture of cost to Scotland, in terms of costs in provision of public services for violence against women, is £1.6 billion, which is quite staggering in itself. I think that there is a huge potential for preventative spend in this area. The idea being that if you deal with perpetrators at an earlier stage, that can act as a deterrent against further offending. Also, there is quite a potential for a normative change as well, which could lead to less offending in the future. Have you done any research or is there any evidence on what the value of the preventative spend might be? I think that I answered that in two ways. In the financial memorandum at paragraph 129, we did reflect at the conclusion of the financial memorandum that, obviously, we hope that this new offence in the future will lead to a reduction in offending. When new offences come forward, people who support the policy often say that, but why we think that it will be the case in this context is that, for the first time with the new offence, we are seeking to reflect our modern understanding of what domestic abuse is. Currently, domestic abuse is prosecuted under a range of different offences, what we call single incident offences, and what this offence is seeking to do is to capture within it the way in which what domestic abuse can be carried out, physical abuse and psychological abuse are a mix of the two. In due course, we hope that that sends a very clear signal and greater understanding to victims, yes, so that they understand that justice system can respond to such abuse, but also perpetrators, so that they can actually see what they are doing is wrong, because one of the major issues at present is that a lot of perpetrators do not understand or cannot conceive that what they are actually doing is wrong. We have mentioned that in the financial memorandum. We have not included any specific estimates because, as we have already indicated in other areas, it is quite challenging to come up with a specific estimate and we did not feel that it was appropriate to do so, but we have referred to it briefly in the financial memorandum. In terms of the wider prevention agenda, one of the key aims of the additional funding that the Scottish Government committed in from March 2015, the £20 million from the justice budget has been one of the key themes uses of the money has been to try and prevent future offending. One area where additional funding has been given, which is referred to briefly in some of the evidence from local authorities, is the Caledonian system, which is the perpetrator programme that exists in some parts of the country, where men, primarily men, who have been convicted of domestic abuse, can agree or can be sent on this programme to try and change their future behaviour. New funding has been given to that last year to improve the operation of the current programme with a view to see whether it can be expanded in other parts of the country, because, for example, although it does operate in many parts of the country, it does not currently operate in Dundee or Glasgow, two of the areas with some of the highest per head of population rates of domestic abuse. Clearly, there is further scope to move forward in that kind of area. In terms of other preventative spend from the £20 million, one of the areas that has been spent is a project from the University of Strathclyde to look at attitudes on campuses in terms of gender equality. There was a research report that was published last week, which showed that there is still quite some way to go in that area. One of the areas that the University of Strathclyde is looking at is to produce a toolkit for use across university and higher education institutions in Scotland. I do not think that I have directly answered your question, but clearly, in the prevention agenda, we think that the offence has a role to play in that in the longer term. We are not naive to think that they will introduce it and suddenly people's behaviour will change overnight, but in due course, as the police, prosecutors and the courts make use of the new offence, we think that that should help to change some people's behaviour so that they can understand what they are doing is wrong, and appropriate steps can be taken to deal with the behaviour that currently cannot be done under the current system. Phillips raised the issue of the Caledonian programme. I was going to bring in Murdo later, but given that it has now been introduced to the conversation, Murdo, do you want to pick up now? Yes, thank you. I wanted to ask around the question of cost to local authorities and community payback orders. You say in paragraph 77 of the financial memorandum that the average cost of the community payback order is £2,259. The evidence that we have from local authorities suggests that, in fact, in the case of domestic abuse, the CPOs tend to be more expensive and require additional time and resource. The Caledonian programme is referred to now. For example, in Frees and Galloway Council tells us that not all areas in Scotland are able to deliver the Caledonian programme at this particular time. They will have to set up new systems to do that, and there will be additional cost in terms of delivering that compared to the standard CPOs. I wonder if you can give me just your response to those comments from various local authorities. I think that this gets us back to what may be the direct and indirect implications of the bill. We are not legislating in the bill in respect of the Caledonian system. It is currently available as a disposal in some areas of Scotland. Clearly, it is very relevant for this new offence, and the longer-term Scottish Government aspiration is for it to be available in more areas. That is why funding was given last year to look at the current operation of the Caledonian project to see if it can be expanded in due course, and in part that is in the context of this new offence. In respect of a suggestion that new funding will not be needed directly, it very much depends on the process of cases going through court and the decisions made by the court in terms of relevant disposals. However, we do not doubt the use of the Caledonian system, and of course we will monitor to see if the uptake in the areas in which it is currently operating does increase as a result of having the new offence being on the statute books to see whether what that means in terms of the funding that is given for the Caledonian project. I think that I am right in saying that currently the Scottish Government gives approximately £2 million a year to fund the Caledonian project. As I said, there was an additional £360,000 given, or announced in November, I think over about an 18-month period, not specifically to deliver the programme but to look at improving how it operates with a view to seeing whether it can be expanded. In particular, the two areas that I mentioned, Dundee and Glasgow, where you have two of the areas with the highest incidence of domestic abuse per head, not to have such a perpetrator programme available to the court as a disposal, seems to be something that should be addressed if possible. Just so that I am clear, would you accept the general principle that community payback order for domestic abuse tends to be more expensive to deliver than general community payback orders? The work that was done in 2014-15 to look at the average cost of a CPO includes within that a lot of CPOs that will include domestic abuse cases. I am not aware of any specific work that shows explicitly that a CPO relating to a domestic abuse case is higher than an average CPO, so I could not confirm that. I do note that at least one local authority said that it was appropriate to use the general average that was produced in 2014-15, but I do not have enough information to disagree with what you are saying, but I can necessarily agree with it if that makes sense. I was interested in the evidence from the Highlands that was submitted to us, that they were quite clearly able to identify potential savings. That was in contrast to some of the other council areas. It may not be something that you can answer, but just when I was reading through the evidence, I noticed that the Edinburgh Council mentioned things like associated costs of the named person scheme that might come from that. I know that Highlands has been running the named person scheme for a very long time and had very solid evidence that it reduced costs at the end of the day and focused resource where it was required. I wonder whether you would be able to give me any comments on that. We did find it quite interesting in the divergence in some local authorities, the way that they have approached giving evidence in terms of the potential for savings. It is not something that was raised with us. In terms of the preparation of the bill, there were two separate consultations. One of the consultations did ask for views from stakeholders in relation to the financial impact of having a new offence of domestic abuse. Although quite a few local authorities did reply, some of the information that they are now providing is a little bit different or certainly more extensive than they did when we did the consultation, so to a limited extent we were a little bit hamstrung when we were producing the financial memorandum, not having the information. I think that I would suggest also that I am not again sure that I would call the bill. Where it is a provision of a service to a victim of domestic abuse, is that a direct cost of what we are doing in the bill? They are already being abused at the present time. In the future, we hope that the justice system through the new offence can more appropriately hold a perpetrator to account, but does that necessarily mean that there are then direct costs associated? We took the view that it would not be appropriate to try and estimate those, because we do not think that there are necessarily direct costs, but we do acknowledge that in a general way, if more people are able to come forward and seek to engage with the justice system by making reports, it may also be that there are other knock-on implications of that, but I am not able to give you a specific comment in terms of the information from the Highlands compared to other areas, I am afraid. Good morning. I wanted to explore very similar issues. I appreciate what you are saying about the desire to focus only on direct costs that are immediately connected to the legislation that is being passed rather than to other services and the indirect impacts. Repeatedly throughout the memorandum, the following phrase is used, it is not anticipated that there will be any new costs following on other bodies, individuals or businesses, as a result of the new offence. That seems to imply that, not only that you are not looking at the question of indirect costs, but you think that there aren't any. Is that an accurate reading of that sentence? I think that that sentence could have more appropriately been worded. Would you not estimate or anticipate there will be any direct cost arising from what is in the bill, but I appreciate that what you have read out there could be qualified slightly. Is it the view of the Government that you would agree with the comments from Scottish Women's Aid and others when they say that, undoubtedly, there will be increased requests for refuge accommodation and direct support for women and children by workers, resulting in increased pressure on local women's aid groups already strained resources? They have said that this is an issue that requires to be addressed by the Scottish Government and local authorities in order to support valuable and valued women's aid services. Is that something that the Government agrees with? I think that the Government would acknowledge that if more people have confidence that the justice system is going to deal appropriately with domestic abuse and that results in more reports being made, which we estimate within the financial memorandum, that may have knock-on indirect implications for a range of services provided by local authorities and the third sector. At the moment, I am sure that there are people who are in a position where they do not feel that they can go anywhere in terms of the abuse that they are suffering, and if they have more confidence in the future to engage with the authorities, whether that is the police or, indeed, just go into Scottish Women's Aid direct or to local authority, that could have implications for them. However, I would come back that we are creating a new offensive domestic abuse, and I still think that there is a separation between what we are doing and those knock-on implications. Women's Aid groups will, at the moment, almost certainly provide support to victims of domestic abuse who may never report the abuse to the police, because the abuse that they are experiencing cannot easily be prosecuted under the existing law or simply because, for whatever reasons, they do not wish to get involved with the criminal justice system. Some of those costs will be costs that are already being incurred by third sector groups like Women's Aid because the fact that behaviour is occurring may be enough to get somebody to go to a group like Women's Aid even if they are not wishing to engage with the justice system. It is certainly easy to argue that there may be individual cases that might be subject to prosecution in the future, but which are not currently where there are support services being provided. However, the organisations providing the support services are very clear in their evidence that they anticipate not just an increased number of referrals, but the potential for longer-term support being needed for victims in particularly complex cases and associated training costs to services to deal with the issues being identified here. Even if the Government takes the view that they should not be reflected specifically and directly in the financial memorandum, is it the intention of the Government at some point to assess those costs and provide for them? Clearly, ministers will keep under review the funding arrangements for third sector organisations to look at a range of factors and any new pressures that may arise, which may be indirectly as a result of this new legislation will clearly be kept and factored into the future spending reviews and budget processes, but I feel that I could commit on behalf of ministers at that point decision will be taken by them at the appropriate time as budgets are being set. I think that the outset, you accepted that you had perhaps not estimated the additional cost of criminal justice, the short reports and so on. Will that now go forward and will the memorandum be amended in light of that? I think that, within the standing orders of the Parliament, the financial memorandum can be revised after stage 2. I am not sure that it is able to be revised, but we could take guidance from the Parliament, but we could certainly write a letter to the committee to clarify once we looked into it what we think those additional costs may be so that you have the full information. If you look at the two Ayrshire submissions, you will see that North Ayrshire provided some detail about what their estimate of additional costs would be. East Ayrshire was pretty much content with the estimates, but it pointed out that, if there were additional criminal justice report costs, it would expect that to be forthcoming. Can you just say a wee bit about the North Ayrshire submission? The estimate of £137,000 extra that they would require is quite a substantial part of your estimate for the entire cost for the whole of Scotland. Is it North Ayrshire Council number 8? You can see in paragraph 4 the highlighted four additional cost areas, the total which comes to about £137,000, which is a substantial amount compared to your own estimate for the whole country. Obviously, we can consider in detail what North Ayrshire has said in paragraph 4. Reading some of it again I think falls into this kind of direct, indirect cost argument. I think that we would need to look carefully, but many of the things that are included in the North Ayrshire summary, I certainly do not doubt that work goes on in these areas in North Ayrshire, but those services already exist and it is whether you can say that the new offence will directly lead to these additional costs in this area. We are clearly happy to look into it and maybe in the letter that we will send on the criminal justice social work costs we can respond in detail to what North Ayrshire has said and give further information that might be helpful to the committee. Okay, I do not see a submission from South Ayrshire. Do you know if they submitted or whether it has just not been included? Is that a complete list? It was staffs that responded to the council's call for evidence that it was not the Government's call for evidence. Does it not look like it on the list of respondees? Well-saved. Has that been concluded? Well, thank you very much. I thank officials for coming along today and giving us some very useful evidence in terms of the financial memorandum. We will obviously consider how we respond to today's evidence taken session. At the start of the meeting the committee agreed to take item, the next item in private. I therefore now close the public part of the meeting. The next meeting of the committee will take place on 14 June when we expect to take evidence in relation to the constitutional aspects of the committee's remit. I suspend the meeting to allow public and officials to leave and we'll just keep going.