Meeting of the Parliament

Meeting date: Wednesday, March 29, 2023

Official Report 731KB pdf

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Court Maintenance Backlog

The next item of business is a members’ business debate on motion S6M-07327, in the name of Liam Kerr, on Scotland’s court maintenance backlog. The debate will be concluded without any question being put. I invite members who wish to speak in the debate to please press their request-to-speak buttons.

Motion debated,

That the Parliament notes reports that there is a £7.3 million maintenance backlog across Scotland’s courts, including courts in the north east, such as in Forfar and Peterhead; recognises that repairs to Scotland’s courts often require closures, which can add to the already large number of outstanding criminal trials, which, it understands, currently stands at 30,588 trials; acknowledges that the Scottish Courts and Tribunals Service had its capital budget frozen in 2022-23; believes that this hindered its ability to tackle the backlog; welcomes the budget increase planned for the financial year 2023-24, and notes the calls on the Scottish Government to work with the Scottish Courts and Tribunals Service to outline how much of the current maintenance backlog will be tackled with the budget outlined for 2023-24, and how much will remain.

15:56  

I am grateful to those members who signed my motion and who have remained behind in the chamber to both listen and contribute to the debate. I remind members in the chamber that I am a practising solicitor and I am a member of the Law Society of Scotland, although I have not done criminal and/or legal aid work since 2004.

It will come as no surprise to anyone that I drafted and lodged my motion with an eye on my North East Scotland region and the future of our local courts. That situation is a function of where Scotland’s justice system finds itself presently. According to the Scottish Courts and Tribunals Service, there is currently a backlog of more than 28,000 trials in Scotland’s courts. That is a reduction from the backlog of over 30,000 trials when I lodged the motion, but it is still an increase of nearly 10,000 on 2019-20, and the problems are worst in our sheriff courts, where there is a backlog of nearly five times the pre-pandemic average.

I mention the pandemic because I have no doubt that, in responding, the minister will blame as much as possible on it. Of course, we all recognise that Covid caused huge disruption and, on that note, it is important to commend all those involved in the system who adapted so quickly and worked so hard to keep things moving. However, the Government cannot deny that major backlogs existed prior to March 2020, and they happened on its watch. Those delays have a real human cost. Victim Support Scotland has said that court delays damage victims’ mental health and can further traumatise them. There is also a risk of underreporting or even non-reporting due to the length of time that the justice process can take, witnesses are being forced to take long bus trips alongside defendants, and potentially dangerous people are being left to roam Scotland’s streets.

We heard some pretty horrific evidence at the Criminal Justice Committee that some victims of crime are dropping proceedings altogether; they are removing themselves from the process due to the lengthy delays and are being retraumatised by those delays. Is that not a huge cause for concern, particularly for the member’s constituents in the north-east?

Of course, it is a huge cause for concern. I have heard anecdotally about similar things occurring in the north-east, and, indeed, around Scotland. It is not even surprising, given that when cases are finally called, victims are quite often being crammed into cramped, crumbling, and underresourced courts, cheek by jowl with witnesses and even the accused.

If we assume that the pre-pandemic level of backlog represents the “reasonable baseline level” that Eric McQueen of SCTS told the Criminal Justice Committee he thought could be returned to by 2026, our courts are really going to have to go some to get there. Mr McQueen told the committee that to achieve that baseline the court system would require to “max out” available capacity. Nationally, we will have to make all our assets work at, or over, capacity if we are to achieve what Mr McQueen says that we can.

However, one of our new First Minister’s previous roles was justice secretary. True to form whenever he has held a post, he presided over a decrease in capital funding for the court service of more than £10 million. To put that in context, in 2018-19, SCTS received £22.9 million in capital funding to repair courts and upgrade buildings. In 2023-24, it will get £12.7 million. That is a massive reduction in funding, given that, as of July 2022, there was a maintenance backlog in the court estate of around £7.3 million. That is why, when the SCTS said in October 2022 that closing three to four court buildings could save £4 million, the people of Scotland, particularly those in the north-east, started to worry. Ten years ago, the Scottish National Party Government looked to make savings that would save the Scottish Court Service about £1.3 million annually and £3 million as a one-off, so it closed 10 sheriff courts. The north-east lost its sheriff courts in Arbroath and Stonehaven—or rather, those courts closed, because it took the best part of five years to get them off the books, during which time the SCTS had to pay for vandalism, alarms and general repairs anyway. The SCTS then sold those buildings on through community asset transfers, which yielded pennies. That led local solicitors to be sceptical that any money had been saved at all. To what end?

Court business, including sheriff and jury trials, was transferred out of Angus and the Mearns. Indictments went to Dundee or Aberdeen, which led to victims of crime facing long journeys by car or public transport if it was available—which was by no means guaranteed—only to find that there was yet another delay because of the very backlogs that we looked at earlier, which have rocketed from an already eye-watering start. Arguably, that ripped the heart out of communities in Arbroath and Stonehaven overnight. That is what is worrying folk in the north-east: a history of closures; a massive repair bill to fix courts that already look like they are being run down; £7.3 million in repairs this year, including £280,000 at Peterhead; and a Government that has slashed the funding.

People outside the SNP’s central belt heartland know where that ends up, which is why, a fortnight ago, I asked the cabinet secretary to provide us with the certainty that there would be no more court closures in the north-east during the lifetime of this session of Parliament. After saying simply that there are no plans, he went on a bizarre rant about the United Kingdom Government and courts in England.

The justice budget is within the gift of the Scottish Government to decide as a spending priority. Scotland has a far smaller court footprint than other parts of the UK, especially after the purge that was started by the SNP in 2013. The court estate is crumbling so much under this Government that repairs across Scotland almost swallowed up the entire capital budget in 2022. For the certainty of victims, the people of the north-east and Scotland, and the morale and jobs of our court workers, I ask the minister in closing to reverse the SNP’s decision to put criminals first and to support our courts by stating, here and now, that there will be no court closures in Scotland in the lifetime of this session of Parliament.

16:04  

I thank Liam Kerr for securing the debate on court maintenance backlogs. For the record, although I am convener of the Criminal Justice Committee, I am not speaking in that capacity, but I will refer to some aspects of the committee’s work.

During the Covid-19 pandemic, many public services were reduced or halted, but our court staff and staff in the wider criminal justice system continued to deliver functioning court and other services under the most challenging circumstances.

As a north-east constituency MSP, I know that that commitment was evident in courts in Grampian and the Highlands and Islands.

The pandemic created an opportunity to introduce new ways of working using technology to support remote jury centres and virtual trials, which were introduced at short notice and are, for the most part, working well.

The introduction of technology and other adaptations was set against the backdrop of a courts estate that comprises a broad range of assets from the comparatively new Glasgow sheriff court to the Court of Session here in Edinburgh.

Scotland has a long tradition of justice often being delivered in buildings of historical significance that perhaps reflect the solemnity of the proceedings taking place within them and are considered part and parcel of our criminal justice system. However, there is no escaping the fact that that comes at a significant cost in terms of adaptations, maintenance, heating, repairs and so on—I know that the maintenance backlog is the focus of Mr Kerr’s motion. As we know, the prioritisation of court buildings maintenance work is an operational matter for the Scottish Courts and Tribunals Service, with—not unusually—capital works undertaken on a priority basis. I also note that it is also the case that what is spent south of the border on justice has a direct consequence for what is available here in Scotland.

I note that the motion refers to the disruption caused to court business due to maintenance work. Specifically, it says that

“repairs to Scotland’s courts often require closures which can add to the already large number of outstanding criminal trials”.

I recognise the point that the member is making, but I would be interested to know more about that claim, as it is not one that I am particularly aware of, and I do not recall it being raised previously, either with local SCTS colleagues in the north-east, or, indeed, in the Criminal Justice Committee. Maintenance is inevitable in the function of any public building and, given the proficiency with which court staff already manage court business, I am confident that disruption to court business is kept to an absolute minimum.

I welcome the efforts that are being made to tackle the backlog of cases, but, as Mr Kerr said, there is much more to do. At the time of its most recent pre-budget report, the Criminal Justice Committee highlighted that the Scottish Government should find extra resources in its budget to provide a better settlement for organisations in the criminal justice sector than that proposed in the resource spending review.

In his evidence to the committee, the chief executive of the Scottish Courts and Tribunals Service highlighted the progress that has been made over the past two to three years to tackle the backlog of cases, but also highlighted the impact on that progress if additional budget is not forthcoming. I am pleased that, despite the difficult financial climate for public spending, the Cabinet Secretary for Justice was able to find additional and much-needed funding for the system.

I welcome this debate highlighting the issue of maintenance backlogs in our courts and thank Liam Kerr for bringing it to the chamber this afternoon.

16:09  

I thank my colleague Liam Kerr for bringing this important debate to the chamber. Although he highlighted failures in his region, he painted a picture of what is happening across the country.

I also express some sympathy for the Minister for Community Safety, who has been sent to the front bench today. It is not her fault that none of the many justice ministers whom we have had—I think that we are on our fifth in 10 years—is here to defend their decisions. Those decisions have led to the court case backlog—which, as Liam Kerr pointed out, existed long before Covid—and to the maintenance backlog.

The Scottish Courts and Tribunals Service is a key cog in the complex wheels of Scotland’s justice system. The service is not just about the people and buildings; it is also about the expertise and systems, including the information technology systems, that must all work in order to ensure that justice is served. Justice has to be served, not just for the accused but for the complainant.

The justice system must be as transparent as possible in order to ensure that we have continued public faith in it. That is not easy but, ultimately, courts have the ability and power to deprive people of their freedom. Removal of liberty, sometimes for quite prolonged periods, makes the court one of the most important buildings in the public estate. Therefore, it is crucial that we raise those issues.

The issues are not just in Forfar, Peterhead and all the other places that Liam Kerr spoke about. I have the 2022-23 maintenance backlog in front of me, and it is quite a sight. It is a shopping list of every sheriff court that needs repairs. It includes £200,000 for Greenock sheriff court, half of which is for a boiler; £385,000 for windows in Alloa; £190,000 for electrics in Dunfermline; and more than £1 million in Glasgow for something called tanking—whatever that is. There are issues in relation to dampness, water ingress, electrics, roofs and drainage. The buildings are falling apart and they have been doing so for years.

No one disputes the fact that buildings that are old—sometimes more than a century old—fall apart. Of course things need to be repaired, but if we do not do that when it needs to be done, the backlog accumulates. Not long ago, we had debates in the chamber about the Scottish Fire and Rescue Service’s estate and our police stations. If we let the backlog accumulate, we will end up with a massive bill that no Government on earth would have the money to pay for. That is not Westminster’s fault—it is the fault of the Government here, which should have been investing and listening to warnings from the SCTS when it made submissions to a number of justice committees during all the budget cycles that it has been through.

Members rose.

I am afraid that I do not have time for interventions.

Will the member take an intervention?

I would love to take them all, so if I can get a few minutes back, I will happily do so.

You can certainly have the time back, Mr Greene.

That is great. I will start with Katy Clark.

I am grateful to Jamie Greene. Does he support greater borrowing powers for this Parliament to invest in capital infrastructure?

I say to Ms Clark, who is clearly defending the SNP this afternoon, that the Government does not need to borrow money. Instead, it should stop wasting money on failed projects; it is notorious for wasting money, as my colleagues know. If the Government spent its money better, it would not need to borrow more in the first place. The reality is that, every time a public service has asked for capital investment, investment has been underdelivered. The SCTS’s experience is no different. It asked for £23 million in 2018 and 2019. This year, it has been given £12.7 million. That is a massive gap and the amount will not even scratch the surface. The Government does not need to borrow to fix the problem.

The question is how we get to the right place. That is where I turn to the evidence from the SCTS, which wrote to the Government. I have a letter here, which is highly redacted.

Will the member take an intervention?

I will do so in a second.

The letter came from a freedom of information request, and the brave soul who had the guts to write to the Government at St Andrew’s house on the subject made it starkly clear what the problem was. I will partly paraphrase the letter. As a result of SCTS’s capital budget being “severely stretched”, it had to divert money

“from estates backlog maintenance to digital services”.

Although that was

“a sensible ... short-term solution, it is not sustainable as it risks future building failure and additional costs”,

should maintenance issues escalate. The letter goes on to say that the SCTS needs

“to provide ... a safe and secure environment for all court users and continue to invest in critical ... services at pace and scale.”

The problem is that chronic underfunding of the system has left those buildings on the verge of collapse. The problem that I have with all that is about the experience of victims of crime as they go through the court system. We know that it is already a traumatic experience, but it is made much worse when victims have to share communal spaces including toilets, cafeterias and waiting rooms, not only with the families of the accused but sometimes with the accused, if they have not been remanded to custody. I could share numerous quotes from victims of crime, who have said how traumatic and degrading the whole experience has been because of the nature of the environment that they are in.

Will the member take an intervention?

I would have loved to give way. I am sure that the minister will have plenty of opportunity to do so in her closing speech.

All that I will do now is make a plea that we need our courts to function well. They need to be fit for purpose and they must not retraumatise victims of crime. Ultimately, they are there to serve a vital purpose, and no amount of whataboutery will detract from the fact that they have been chronically underfunded. Whoever is in charge, that must change.

16:14  

I thank Liam Kerr for bringing this important subject to the chamber for a members’ business debate. If he does not mind, I will focus almost exclusively on court delays, because Labour members have been very critical of the current situation. I took an interest in court delays in 2018, following a constituency case—a horrendous case of gang rape—that took three and a half years to come to court, after which there was an acquittal.

I accept that Covid-19 has caused significant disruption to operation of the criminal justice system in Scotland and elsewhere. It has caused considerable strain in the system and has led to significant delays in processing of cases. However, the issue pre-existed Covid; I am clear about that.

As Liam Kerr did, I put on record my sincere thanks to the Crown Office and Procurator Fiscal Service and the Scottish Courts and Tribunals Service, which have done an incredible job throughout Covid to keep our courts running. However, the delays cause uncertainty for the people who are caught up in our criminal justice system, including victims, witnesses and accused persons. It is not justice if people have to wait years to be heard.

Long before lockdown and the disruption to the criminal justice process, the challenges that victims and survivors faced as a result of delays in their case progression, poor communication of and uncertainty about trial dates, and last-minute changes to courts, were well established. How far back they go would be an interesting point to research. However, the remoteness from the system that victims feel from not having communication through long delays is one of the reasons why Katy Clark and I support advocacy for victims of sexual offences who are waiting for justice in court.

There are a large number of outstanding criminal trials, which Liam Kerr talked about. The number currently stands at 30,588 trials across all criminal courts. The latest figures show that serious sexual offences constitute 70 per cent of High Court work—which is really quite astonishing—and 80 per cent to 85 per cent of cases that proceed to trial. That affects the thousands of women and children who are at the receiving end of such violence. I mention that because I have a specific interest in the issue, but those figures would necessitate an interest in any case, because a crucial dimension of systematic violence against women and girls is lack of access to justice and courts.

The Lord Advocate, Dorothy Bain, who previously served as a practitioner heading up the serious sexual violence unit, has previously commented on the extraordinary number of sexual violence cases that are caught up in the backlog, which she says “predominantly and disproportionately” affects women and children. That is an issue that the Criminal Justice Committee, along with the Scottish Government, will scrutinise later this year.

A year ago this month, as Parliament discussed the backlog of cases, the Cabinet Secretary for Justice and Veterans, Keith Brown, told us that the Government had allocated £53.2 million to tackle the backlog, including measures to provide 16 additional courts, which we have seen none of, as was pointed out by Liam Kerr. Over time, we will have to look at what that £53.2 million amounts to, because that money must create results and get the delays down.

During the debates on Covid emergency legislation, we thought that we should not extend the time limit to 360 days until 2026. We were clear about that because we were concerned that if there were to be such a deadline, it would be used. We need to ascertain whether, as we head towards 2026, the delays will come down. At the moment, the delay in the High Court is an average of 49 weeks. The Criminal Procedure (Scotland) Act 1995, which Parliament agreed to, provides for maximum numbers of days for the High Court of 110 days and 140 days. We did that because, in Scotland, we believe that justice includes having strict time limits. The country that previously had the best time limits in the world, apart from those in two countries, is probably now looking pretty poor, when compared with other countries. I hope that my figures are correct—I will be corrected by the minister if I am wrong—but the 49-week delay amounts to 105 days more than the 140 days that are set out in the 1995 act. That is not good for survivors and victims, and it is not good for accused people.

The Criminal Justice Committee has highlighted the issue of people on remand waiting for their cases to be heard. We have heard of people waiting on remand for two years or more and not knowing what priority is being given to their case. I have pleaded with the Crown Office about that. There must be transparency about delays, to give the accused in particular some idea of when their case will be heard.

We must continue to return to the issue, because it is a really important one for our criminal justice system. We must get week-on-week progress in reducing the 49-week waiting time to what is set out in law, which is no more than 140 days on remand for High Court cases.

16:20  

I apologise to everyone if I end up in a coughing fit—I have a chesty cough at the moment.

I am grateful that we are having this debate, as it is an opportunity to advise Parliament about an emerging, positive report of recovery and transformation in our justice system.

Let me be clear about some of the points that Liam Kerr and other members have raised. Mr Kerr sought to characterise the maintenance backlog in the Scottish Courts and Tribunals Service’s estate as an investment failure. He also raised the prospect of court closures. Both of those points are inaccurate. There are no plans to initiate further court closures. The SCTS is of the view—which I agree with—that the current court model provides appropriate access to justice for Scotland’s communities. However, there is always more work to be done.

On the maintenance backlog, a professional industry standard approach is adopted, which is to look forward to assess future investment requirements to keep buildings safe and operational. To ensure that the court estate remains in good condition, the SCTS sets a minimum target of investing 1 per cent of the value of the estate on the maintenance backlog each year. That is about £5.3 million, based on the current evaluation.

Through additional in-year funding that was provided by this Government, the SCTS has been able to invest more than 1 per cent in recent years and to schedule works such as the replacement of the Glasgow sheriff court roof. I will put that funding into a bit of context. This year, the total investment in the maintenance backlog will be about £8 million, which, again, is above that 1 per cent figure.

Over the past years, the cost of the maintenance backlog has come down significantly from £39 million to the current figure of £29.5 million. It is important to provide some context to that amount. The SCTS manages a vast and complex estate, as has been mentioned. More than half of the court buildings are listed, and a number of those are significant landmarks that are based in world heritage sites. The SCTS has assessed that the level of investment and maintenance is sufficient to maintain the estate in a safe and operational condition, and I have no reason to doubt that assessment. Its record of success in managing the court estate speaks for itself.

The SCTS has led a number of important innovations, including the establishment of the Inverness justice centre, which was opened in 2020; the establishment of vulnerable witness suites, which are to avoid children and vulnerable witnesses having to attend court physically; and the use of cinemas as remote jury centres to allow the most serious cases to continue during the Covid pandemic.

Over the past decade, although facilities have sometimes been taken out of commission to allow planned improvement works to take place, there have been no instances in which a maintenance issue has resulted in an unscheduled court closure or impacted on any trials.

However, the modern justice system is made up of more than its physical estate. Having digital capabilities that support modern, person-centred services is a critical part of our transformation agenda. Building on innovation and new ways of working that were introduced as part of the justice response to the coronavirus pandemic, we are continuing to focus on deploying technology and new approaches to make the system more joined up and work better for everyone who experiences it.

Recently, the Cabinet Secretary for Justice visited Dundee to see in action the new digital evidence sharing capability—DESC—service that is being piloted there. DESC is a world-leading major programme of digital transformation through which the Scottish Government and its criminal justice partners have come together to radically overhaul the way in which evidence is shared in the criminal justice system in Scotland.

DESC will make it easier to share evidence, allowing swifter access and helping cases to be resolved more quickly, which will reduce inconvenience and the risk of trauma to victims, witnesses and other users of the justice system. None of us here wants victims to be traumatised, and we need to move on that issue.

At £33 million, DESC represents a significant investment by the Scottish Government. However, as well as being transformative in its own right, it creates a foundation for future transformation, both as a technology platform and through its pathfinder role in establishing a successful model of collaborative delivery of system reform.

We are also continuing to invest substantially in increased court capacity. That has contributed to the strong progress that we have seen in clearing the backlog of summary criminal cases. Since January 2022, the number of outstanding summary trials has reduced by over a third and is continuing to fall. That means that more than 15,500 cases have been cleared from the backlog so far.

However, we want to see similar progress in High Court and sheriff and jury cases, which, as Pauline McNeill outlined, are sometimes the most traumatic cases for victims. Therefore, from April, the extra summary courts will be replaced by new, additional solemn courts, which will create more capacity to deal with the more serious cases. That has been made possible because, despite the challenges of the national context, our 2023-24 budget protects recovery funding of over £26 million for the Scottish Courts and Tribunals Service.

In addition to increasing court capacity, we will work with our different partners to address the impact of the backlog on vulnerable witnesses through facilitating the expansion of pre-recorded evidence.

I am listening carefully to all the measures that are being put forward. However, they beg the simple question: when will they reduce the backlog to what we would want it to be and start hitting the targets that Pauline McNeill quite rightly majored on?

I think that whoever is in this post—whether or not that is me—and whoever is the incoming cabinet secretary for justice will have to keep a keen eye on that matter and bring it back to the chamber for discussion. We obviously want to see the backlog numbers reduce dramatically. We have already seen the number of summary cases reduce by over a third, and I want to see the number of cases in solemn trials and High Court trials reduce significantly as well.

We are also investing £2 million in the development of dedicated suites for hearing evidence on commission and associated infrastructure, to increase the use of pre-recorded evidence. That funding has delivered three suites, located in Glasgow, Edinburgh and Inverness, which collectively have the capacity to deliver almost 1,500 hearings a year. A fourth suite is in development in Aberdeen, which, once open, will enable an additional 480 hearings to take place each year.

We have also reached a pivotal phase in our journey towards introducing the bairns’ hoose in Scotland, with the publication of national bairns’ hoose standards expected in May. They will then be tested in pathfinder areas during our first phase of development.

The Government is committed to delivering our vision for justice. In spite of a decade of austerity imposed by the UK Government, I am confident that, with the current level of funding provided by the Scottish Government—the additional borrowing powers that Katy Clark mentioned would be very welcome as well—the Scottish Courts and Tribunals Service will continue to use its resources in the most focused and effective way to deliver justice services that meet the needs of modern Scottish society.

That concludes the debate.