Official Report: Minutes of Evidence

Ad Hoc Joint Committee on the Mental Capacity Bill, meeting on Monday, 2 November 2015

Members present for all or part of the proceedings:

Mr A Ross (Chairperson)
Mr Patsy McGlone (Deputy Chairperson)
Mr Paul Frew
Mr Seán Lynch
Ms R McCorley
Mr N Somerville


Ms Tara McBride, Department of Health
Mr Chris Matthews, Department of Health, Social Services and Public Safety
Ms Laurene McAlpine, Department of Justice
Mr Peter Luney, Northern Ireland Courts and Tribunals Service


The Chairperson (Mr Ross): I welcome Chris Matthews, Laurene McAlpine, Peter Luney and Tara McBride to the Committee. You will be aware that there is a recurring theme around the costs associated with the Bill. I think that we have raised it every week. We have had a series of research papers that challenge some of the assumptions that we have been presented with by the Departments around costings. I thought that it would be useful to have an evidence session on the costs to satisfy ourselves that we have robustly challenged the figures. I think that you have had sight of all the research papers and certainly the scrutiny points in them. Hopefully, you are in a position to give comprehensive answers to each of the questions. Committee members have a series of questions to ask. Paul, do you want to kick off? We will work our way through the questions. We will kick off with research paper 2, which is on training costs.

Mr Frew: Chair, are you allowing members to ask questions on just that research paper or all of them?

The Chairperson (Mr Ross): You work away and ask about whatever you wish.

Mr Frew: I will ask questions on the first two or three papers, and we can take it from there.

I will begin with the paper on training costs. The Assembly may wish to establish what other factors, beyond the requirement to sustain an operational service, were taken into account by the Department of Health, Social Services and Public Safety during the costing process. Should we be taking into consideration anything beyond the actual costing process for a sustainable operational service?

Mr Chris Matthews (Department of Health, Social Services and Public Safety): I will give a brief introduction before I pass over to colleagues who did the work. It is probably worth pointing out that this is a fairly common exercise for DHSSPS. If we are bringing in any new policy or operational change, we have to train people. We have some experience of working out what the costs of training are. Essentially, there are two components. My colleague can fill in the details. You have the training itself, which has a cost attached to it, and you then have to backfill all the staff who are not providing services. As I am sure that you appreciate, most staff in Health and Social Care (HSC) are pretty busy. There is a lot going on, so it is not a trivial matter to take people out of work and backfill their posts. On the specifics of Department of Justice and DHSSPS training costs, I will ask Tara whether she wants to say anything about the factors taken into account for training.

Ms Tara McBride (Department of Health, Social Services and Public Safety): We gave an upper limit and a lower limit. The upper limit was the cost of the venue, the cost of the trainers, the administration costs, and travel and subsistence. Backfill of people going out was also included. Social work staff will be out 12 days, so what is going to be the cost of backfilling their posts? The lower end was literally just the training cost without that backfill cost.

Mr Frew: In the real world, it will all cost, so, if there is a capacity issue as a result of people going off to training, that will have to be filled. It will be a tangible cost that has to be taken into consideration. Have you considered whether training in the Department should be external or internal?

Mr Matthews: At this stage, because we do not have a settled Bill and because we have not finalised exactly what the training programme will look like, it is probably too early to go out for that kind of market testing. It is always possible to buy in training from professional firms. There are two things that we need to consider. The first is that that might in the end be more expensive. The second is that, because of the relative novelty of the Bill, it is not clear that someone would be able just to step in and provide that training externally. You would need to into a procurement scenario to make sure that you were getting quality training, and so on. It is something that we will have to consider, but it is probably too early at this stage to commit to one particular course or another, simply because we do not know exactly how the training will work and whether, realistically, the market will be able to deliver it. It is definitely a possibility, however.

Mr Frew: Is it fair to say that you could get some sort of estimate from looking at GB, or are the two not compatible at that point?

Mr Matthews: You could probably get an estimate from local training firms. The difficulty is with whether, once you procured, you were satisfied with the proposals coming forward. If you ask a local firm, of course it will be able to do that, and it may well be the case that it can, but there will be an issue for us when we get a settled version of the Bill around the exact legislative framework and the training that flows from that. Some of the training may never have been delivered before. Some of the issues that you discussed in a previous session are difficult and, in some ways, unprecedented for this jurisdiction, so training people in those may be quite complicated. We might feel more comfortable if we were dealing only with internal people who had some kind of expertise in the area.

As I said, it is probably too early to commit to any particular course. You can get estimates, but, given the sorts of unknowns that we have around exactly how the Bill is going to look, there are limits to how far we can take that.

Mr Frew: If the Mental Capacity Bill is passed in its present guise, are there concerns in the Department that there will be a capacity issue with delivering on the legislation?

Mr Matthews: It is a tangible risk. Change on the sort of scale that the Bill proposes naturally comes with risk, particularly for a system as diverse and complex as the HSC. It is a risk that we are alive to. It is one that will require careful management. As you quite rightly point out, there is a resource component to that as well as a general disruption. There is the backfilling issue, but, if you do not get the training right, there is also the possibility of uncertainty and confusion and of people suddenly being placed in situations that were familiar a week ago but that are now potentially unknowable or at least difficult to manage. Part of the roll-out of any training package is making sure that we are addressing all those concerns as well: the concerns that are coming up in Committee, which are that, because it is new, the Bill throws up situations that have not been considered before. We have a duty to work those out in legislation and guidance. Moreover, in any training package that we bring forward, we have to make sure that, if we are asking them to make very serious decisions, it is clear to people how much freedom they have, what the legislation requires of them and whom they should be going to for advice.

Mr Frew: I understand why you give an upper and a lower limit. It paints a picture, but, in real terms, we have to look at the upper limit and at whether it is correct. The lower limit does not really play out in real life, because you will always have to backfill. You will always have to build up capacity when someone is away training. You will always have to make sure that that is there. It is a duty of care, I suppose, as much as anything else. How confident are you that the upper limit is correct?

Mr Matthews: At this stage, we are probably about as confident as we can be with that number, given the number of uncertainties that there are. We have attempted to identify, and factor in, all the predictable costs from doing similar work in the past. Obviously, this is all on a pretty big scale, but each of the components that comes with it has been done in different ways before, so we have a relatively good idea of the types of costs and their relative scale.

As I said, there are two components: the high number and the low number. It is essentially a bureaucratic, Civil Service sort of thing, which is that you are costing all potential possibilities, and, to an extent, some of that is done to show what is realistic and what seems correct. The lower end of the scale will perhaps predict no backfilling. That will not seem realistic, so you may be able to say that it is not likely to involve that level of cost. You will probably want to focus on the higher end, because that is the most comprehensive examination, although it is also the most risky, because, if that is where you end up, it is where you have the least amount of leeway. If you end up in the middle, you at least have some wriggle room. If you end up with the higher cost, that is your greatest area of risk, because, if it goes above that, you will have significant consequences.

At this stage, in writing to the Executive or going through the Committee and then on to the Assembly, we are attempting to give an idea of the scale of cost — the commitment and investment required — so that, in weighing up the value of the Bill and whether it is the kind of legislative statement that it wants to make, the Assembly can have as good an idea as possible about the potential disruption and the cost of that. At this stage, I do not think that we would be sufficiently confident to say, "Yes, it is definitely going to cost this much". By the end of this year, we hope to have a closer statement of it, but, frankly, until we have settled Bill, it is very difficult to say, "This is definitely what it will cost", because there are still things that are unknown. Amendments may come from Consideration Stage that we may have to cost. There are legislative stages to go. At this stage, what we are trying to do is give an idea of the scale of resource commitment that the Bill will require so that, when you are weighing up the disruption and all the other things that come with the Bill, you will have a realistic idea of what the commitment requires and whether it is something that the Assembly wants to commit to.

Mr Frew: I put it to you that it is fair to assume that we should take your upper limit and then apply a tolerance band, both up and down, as to the real cost of this, now and in the future.

Mr Matthews: Yes. I think that it is fair to say that, at the minute, the cost could go up or down from our upper limit. It would only be prudent to prepare for the basis that you have to have what we in the Civil Service term "optimism bias". You might say that we are, in general terms, 10% wrong and then add whatever it is. There are some quite good tools that, depending on the complexity of the reform that you are talking about, will give you an optimism bias of as high as 50%, which would be very significant indeed.

Prudence requires you to assume that, even if you come up with quite a well-developed number, there is a good chance that it will cost more than that, simply because of unforeseen —

Mr Frew: That could probably apply not only to training costs but to everything. It could apply to the whole —

Mr Matthews: Absolutely. At this stage, every cost that we put forward is our best guess, on the basis of the best information that we have.

Mr Frew: Do we have a sure assessment from DOJ as to who in the criminal justice system will need to be trained to a specific level? Are we sure that the costings there are right?

Ms Laurene McAlpine (Department of Justice): The training costs for DOJ relate to 1,461 prison staff and detailed training for about 150 prison staff who deal with more high-dependency prisoners or prisoners in reception or induction areas. Plus there will be some training needed in subsequent years to allow for staff turnover.

Mr Frew: I am not across the detail on this, but are we sure that it is required only for the Prison Service?

Ms McAlpine: The Police Service initially thought that it did not have a training requirement, but it is reconsidering that, so there may be an additional cost for police training.

Mr Frew: We therefore have the Prison Service and the PSNI. Are there any other criminal justice agencies that may well have a cost-of-training burden that we should be alerted to ?

Ms McAlpine: Training will be required for the new Office of the Public Guardian (OPG), but that is factored in separately to its costings. We have not provided for any other training.

The Chairperson (Mr Ross): Is the cost of PSNI training to come out of its existing budget or from the Department's? I am quite sure that the PSNI will put a bid in, but is it the Department's view that it should be catered for from within its existing budget?

Ms McAlpine: That is to be decided. We have not yet reached a view on that. I expect that, as you say, the police will be thinking very seriously about putting in a bid for training.

The Chairperson (Mr Ross): We are obviously in a climate in which there is not a lot of money about, and I think that the expectation among all of us here is that the Bill is not affordable. Is any work going on between the two Departments to reduce its cost? If so, is that work going on at the moment?

Mr Matthews: We are in the process of refining costs. By the end of this year, we will want a more robust statement of costs. On the Bill's affordability, it will have to be bid for as part of a comprehensive spending review bid. The outcome of that is unknowable. It is difficult to say where we will be by the time that we get to that stage. It will be interesting to hear the November statement coming out of Westminster and the position that the Government will take on healthcare generally and other things.

In the event that a CSR bid is unsuccessful, we will have to examine alternatives. As we put forward before, there is the potential for deferment or a sort of staged implementation. As I imagine the Committee has gathered by now, a lot of the Bill hangs together as a piece, so to work through what bits are more of a priority than others would probably be quite complex to do. We would probably need to have fairly extensive consultation if we were to break up the Bill in that way.

There are options in the event that the financial situation is not resolved through the CSR, which is a possibility. Again, decisions are required at a political level that go beyond us. We will give policy advice about what we think, but, given the other pressures on the health service at the minute, any financial question has to be decided on in the round.

Mr Frew: The DOJ training costs are £75,000 in year 1, £15,000 in year 2, and so on. That is for —

Ms McAlpine: Prisons, yes.

Mr Frew: That is for 1,461 prison staff.

Ms McAlpine: And another 152 who will require more specialist training, we think. The costs do not include PSNI or OPG training, the latter of which is taken account of separately.

Mr Frew: What percentage of Prison Service staff — I should know this — is 1,461 staff?

Ms McAlpine: I do not know. Is that —

Mr Frew: Is that all of them?

Ms McAlpine: No. We do not know. We will need to come back to you on that.

Mr Frew: Yes. Imagine that every prison officer has to go through some level of training. That is a valid and fair assumption. You also say that the PSNI is reconsidering its position on training. Throughout the Bill, references are at constable level, and there are a lot more constables in Northern Ireland than there are prison staff. Therefore, the cost of the training aspect alone could spiral and multiply greatly.

Ms McAlpine: We are waiting on the PSNI giving us advice on that.

The Chairperson (Mr Ross): I would be amazed if it did not make a bid for training, as a way of getting in additional revenue.

Mr Frew: If there is going to be a massive burden —

The Chairperson (Mr Ross): Even if there is not a massive burden.

Mr Frew: Even if it is not a burden as a result of training, which I am concentrating on, I can imagine that the PSNI will be looking for some sort of financial redress.

The Chairperson (Mr Ross): There are no other questions on research paper 2. We will move on to research paper 3, which is on deprivation of liberty (DOL) assessment costs. Seán, do you want to ask questions on that research paper?

Mr Lynch: Yes. Thanks Chair. Is DHSSPS confident that one hour is sufficient time in which to conduct an assessment?

Ms McBride: The way in which we worked out the DOL assessments involved many drivers. We went to the Regulation and Quality Improvement Authority (RQIA) and got registered nursing homes. We then canvassed HSC to see how many visits it would take from a social worker and a psychiatrist to carry out the assessments. That is how we got our DOL assessment costs.

Mr Lynch: Will that reflect the cost of completing all assessments, in addition to writing up findings, as well as attending to other duties?

Ms McBride: Yes.

Mr Lynch: Does your Department's estimate assume separate travel for the psychiatrist and the social worker?

Ms McBride: We calculated the costs on the number of staff doing the assessments multiplied by an average travel cost.

Mr Lynch: Would that be fairly accurate?

Ms McBride: At the time, it was a projected cost.

The Chairperson (Mr Ross): Does the Department of Health have any plans to revisit the estimated costs included in the explanatory and financial memorandum (EFM), given that the number of deprivation of liberty assessments may be significantly lower than the figure that it relied on when estimating costs for the Bill?

Ms McBride: Yes, we are looking into that figure at the moment.

The Chairperson (Mr Ross): Is there a timescale for that?

Ms McBride: At the moment, we are going to produce a second version of the costs.

The Chairperson (Mr Ross): How will you ensure that the assessment structure to be prescribed in future regulations will protect against significant variations from the estimated costs?

Ms McBride: At the time of doing the projections, we put in as many assessments and assumptions as we could. We therefore feel that the model that we are working on is robust and flexible enough to accommodate future variations.

The Chairperson (Mr Ross): Research paper 4 is on the Department of Health's recurring costs,

Mr Frew: Sorry, Chair, may I come back in about training? If there is any tweak to legislation that the police have to enforce, surely there will always be a cost burden for training. Surely every constable will need to know every tweak to the law. Will that not be the case?

Ms McAlpine: I assume there is already training for constables before they take up office and on an ongoing basis. It may be that the place of safety issue could be incorporated into training that is already provided. Perhaps that is why the PSNI initially thought there would not be any additional training costs. It is now looking at that more carefully.

I am sorry, but I am not in a position to help you any more with that, because I am waiting to hear what the PSNI tells the Department.

Mr Frew: If there is a change to any aspect of the law that the police are expected to enforce, those at a constable level will have to get it right, because they are at the coalface. Every time there is a change in the law, if it is not covered in their formal training, they will have to be made aware of it. There will always be a burden in a practical sense and in a cost sense. How much of that was included in the estimate?

When medical professionals change practices, there is a cost implication and a recurring cost burden. How far can you nail this as being specific to the outworkings of the Bill compared with any other tweak or change? There will be such changes, and it seems to me that there will be a recurring cost burden for changes or tweaks to any practice, whether medical or law enforcement.

Mr Matthews: Let me address some of that from a health point of view. It depends on the scale of change. There are occasions when we can just put out a guidance note that addresses relatively minor points. At other times — I suspect that this Bill will be one of them — when a change is quite fundamental, you need something more intensive and all-encompassing. I suspect that it is similar for the police, although I do not want to speak for them. Guidance notes can probably be put out, and other things would have to be done in the training college.

Mr Frew: It would be the same for the PSNI, of course, although you cannot speak for them.

Mr Peter Luney (Northern Ireland Courts and Tribunals Service): From working with the PSNI on a range of criminal justice initiatives, it is as you said. Certain things will require guidance to be updated and circulated and will perhaps be dealt with at briefings. Other matters will require more structured training.

Mr Frew: Thank you. Sorry about that, Chairman.

The Chairperson (Mr Ross): No problem. Neil, we will move on to research paper 4.

Mr Somerville: Will you detail why you relied on Scottish data to estimate the financial impact of the Bill on Northern Ireland?

Ms McBride: Only elements of the Scottish principles were applied. We took the Northern Ireland data and divided it between compulsory treatment and attendance requirement in the community. In the Scottish data, there was a 75%/25% split, so we use that percentage on Northern Ireland data.

The Chairperson (Mr Ross): Sorry for interrupting you, Neil. You estimate that 5% of the population who are over 16 years of age will need support to make a decision. The Employment and Learning Committee's inquiry into post special educational need provision indicated that that might not be an accurate figure. How did you get that 5% figure, and can you still stand over it?

Ms McBride: At the time, those statistics were current, and we took them from an Assembly paper, 'Statistics on People with Learning Disabilities in Northern Ireland', and also from a report on Alzheimer's. In addition, we went out to the trusts, and the Northern Trust agreed with that statistic.

The Chairperson (Mr Ross): Knowing what we now know, would you still stand over that percentage?

Ms McBride: We could review it.

The Chairperson (Mr Ross): Obviously, the cost would change. Some £8·2 million is associated with the figure of 5%, so, if that goes up, the cost will also go up.

Mr Somerville: Will you explain the wide variation in the estimated costs of rates of detention amounting to deprivation of liberty?

Ms McBride: We wanted to give you the upper and lower limits. We got the figures from predicted DOL safeguard applications in England and Wales after the Cheshire West case, and we did a calculation for the Northern Ireland population on a pro rata basis. We acknowledge that the figure, at this time, is subject to change.

The Chairperson (Mr Ross): Why were demographics excluded as a relevant consideration in estimate calculations?

Ms McBride: We went out to the trusts and found that some trust figures varied dramatically, so we thought that, in order to gain a representative benchmark, we should exclude it.

The Chairperson (Mr Ross): Why were the Belfast Trust figures excluded from the estimate?

Ms McBride: The Belfast Trust figures were at the upper end. We gave you an upper and lower end so that the Belfast Trust figures are included in the upper end, which is £91·7 million.

The Chairperson (Mr Ross): If the figures were considerably higher, it would change the average. Surely you would have to include the pressure from the Belfast Trust. I understand that, from a statistical point of view, you have left off the higher and lower figures, but, if it is so much higher in Belfast, it still has to be dealt with. Would it not have been worthwhile including it?

Ms McBride: That is a good point, and we included it at the upper end. The Belfast Trust is included in the £91·7 million.

The Chairperson (Mr Ross): Why were second opinion hours excluded from the estimate?

Ms McBride: The South Eastern Trust was the only trust to include that. We included that at the upper end — the £91·7 million — and we took it out in the lower end figure.

The Chairperson (Mr Ross): Was a sensitivity analysis undertaken for the estimate? Such information would enable an assessment of how sensitive the overall estimated costs are, the change in the time taken or specialisms needed for the prescribed processes.

Ms McBride: We did a sensitivity analysis on the volume base. If we go back to what drives the costs, we have a volume base — that is, the number of cases — and we then look at the amount of time that the specialisms take for different assessments. The sensitivity analysis was applied to the volume base — the cases.

The Chairperson (Mr Ross): We will move on to research paper 5 on Department of Justice recurring costs. Paul, do you want to kick off on that?

Mr Frew: Will the DOJ detail why the number of individuals subject to Parts 9 and 10 are not expected to increase significantly beyond the current justice caseload? What is the rationale for that?

Ms McAlpine: We do not expect the numbers and profiles of people coming into contact with the criminal justice system to change because of the Bill. The Bill affects how mentally and, to some extent, physically disordered people will be dealt with, but it cannot add to or reduce the numbers.

Mr Frew: What data is there from the Justice Department on the number of prisoners who have been transferred to GB for specialist provision in recent years? Do we have that information?

Ms McAlpine: Yes. Since 2009, five individuals have gone to England and Wales or Scotland for specialist treatment. I think that four went to Carstairs, and one went to the John Howard Centre, which is a London-based facility.

Mr Frew: Using the same logic as your first answer, are we confident that those figures will not increase?

Ms McAlpine: If we have had only five individuals since 2009, it is reasonable to assume one a year.

Mr Frew: If the figure happened to double, and there were two individuals in a given year, how would that affect costs?

Ms McAlpine: We attached a figure of £250,000 to a case that would require bespoke treatment. So that figure of £250,000 would double, but there might not be any more individuals. When you are dealing with such small numbers, it is hard to predict.

Mr Frew: I understand. It is a bit like crime figures. When a burglar gets out of prison, crime levels for burglaries go through the roof, and it is only one person who is doing the work. I understand that it would be very sensitive at that low level.

Who in the criminal justice system would need training on the Bill's implementation? Are we sure that we have nailed that right as opposed to upfront training?

Ms McAlpine: It is to do with staff turnover. In the Prison Service, staff will get foundation training, and about 150 staff will need specialist training, and, with turnover, there will be further training for new recruits. It is a relatively modest £15,000 in the overall context of the Bill's costs.

Mr Frew: Does the estimate on recurring costs include all key costs that would be incurred by the public purse as a result of the review tribunal?

Ms McAlpine: No. There are separate costings for the review tribunal, including training for the panel.

Mr Frew: What adjustments can be made to estimate the number of claims that would be heard by the tribunal under the Bill?

Mr Luney: With the costs that we identified for the review tribunal, we were trying to give an indication of the lower and upper ends of the spectrum. That is why we have banded it as 25%, 50%, 75% and 100%. We know that it is anticipated that there will be just over 7,500 interventions per annum. What we do not know is how many of those would result in tribunal hearings. There is not a useful comparator from any of the other jurisdictions to draw on, and that is why we have gone for the banding approach. I appreciate that it gives a very wide swathe of costs. We will certainly work with the two Departments to try to determine whether there is a way to refine those. However, for the purposes of giving you a flavour of the costs, that is the approach that we have adopted for the review tribunal.

Mr Frew: Could you not use legal aid data to demonstrate cost burden?

Mr Luney: We have some figures on the costs that are attributable to legal aid, which we will build into the next iteration of the cost paper. A question was asked about costs of judicial reviews (JRs) and things like that, so we will build those into the costs. However, in the overall context, it is relatively small.

Mr Frew: You have just hit the button with regard to JRs: they are not included.

Mr Luney: We were asked about the costs of judicial reviews and had included empirical data on the costs that the mental health review tribunal covered. However, it was noted by the researcher that this perhaps did not include the cost to other Departments or to the legal aid fund, so we will build those all together.

The Chairperson (Mr Ross): Is this your estimate of costs of £12,000 per judicial review?

Mr Luney: Yes.

The Chairperson (Mr Ross): Explain to me again how you got to that figure of £12,000. Obviously, the costs of JRs will vary greatly.

Mr Luney: We provided historical data relating to JR applications in which the costs were picked up by the tribunal itself. In 2012-13, there were three JRs, which cost the tribunal £13,257 in total. In 2013-14, there were three JRs, which cost £44,980 in total, and so on. That gave us an average cost of about £12,000. However, JRs can vary widely in complexity and importance, so it is possible that you will get outlying figures.

Mr Somerville: Can I ask the DHSSPS and the Justice Department to specify when amended cost estimates will be available?

Mr Matthews: We hope to have a phase 2 by the end of the year.

Mr Somerville: Can you present future cost estimates more fully and clearly so that the impact of adjustments to individual variables are explained in detail?

Mr Matthews: OK, sure.

Mr Somerville: Why has the Department of Justice not included estimates for the costs of JRs to all relevant parties?

Mr Luney: We have just given you the figures that were paid by the tribunal, but, as a result of earlier queries, we will provide all the figures.

The Chairperson (Mr Ross): Are you sure that the staffing structure of the Office of the Public Guardian that you have set out will effectively deliver the sort of services that you are talking about? Are you content to stick with that staffing structure?

Mr Luney: The staffing structure that we have prepared is indicative and based on research and discussions with colleagues in other jurisdictions. When you compare the structures in Scotland and in England and Wales, there is consistency across the two. That is why we felt that applying the population ratio approach to it was a reasonably sound methodology. One of the things that is unclear is the rate at which the lasting power of attorney and other OPG workload will start to come in. It is important to recognise that any staffing structure in Northern Ireland will need to be phased in and grow up gradually to meet the business rather than having the full staff structure on day one.

The Chairperson (Mr Ross): Will the staffing structure comprise existing people in the Civil Service, or is it additional to current levels?

Mr Luney: We have set it out as being additional. While we recognise that some of the functions that currently sit with the Office of Care and Protection will move across to the Office of the Public Guardian, both jurisdictions said very clearly that, because of the additional work that will go to the court, there is no net release of staff from the court. The Committee brought up that issue before, and we want to monitor it very closely. We will need to transfer some of the expertise and skills across to the Office of the Public Guardian so that the complete staff base is not starting off from ground level. If it turns out that there is not an increase in business going to the court, we will not fill those posts. The advice from the other jurisdictions is that there will not be a net release of staff from the court office.

The Chairperson (Mr Ross): If the Office of the Public Guardian records a surplus, will fee levels be reduced in line with DFP guidance?

Mr Luney: Yes. There is a requirement for us to manage in accordance with 'Managing Public Money'. If it appeared that we were over-recovering, we would need to conduct a review. The guidance is that a review of fees and income levels should be done once a year anyway, so we would do that and adjust the fees accordingly if that were appropriate.

Mr Frew: Cost recovery — those are such bad words — has been raised. As an example, the firearms licence department in the PSNI is not fit for purpose. Even though it is duty-bound to cost recovery, it is a nonsense. How can you ensure that that will not happen here, when cost recovery is not fair or just on the population whom it serves?

Mr Luney: It is important that fees are not used as a way to cover inefficiency. At the last session, the researcher was asked whether the Public Guardian in England and Wales and the Public Guardian in Scotland were efficient. I am not sure how you answer that question. I know that they publish their targets and that they have metrics. They had targets in both jurisdictions, but are those targets challenging? Work must be done to make sure that we have challenging targets and that the costs that we are incurring are valid. Work also needs to be done on the exemptions and remissions policy for people who would be charged fees to make sure that the people who are least able to afford it are provided with an exemption or reduction. We can look to the exemptions and remissions policies in the other jurisdictions. We already have exemptions and remissions policies for all aspects of civil court business, so we will try to moderate across those to see the best outcome.

Mr Frew: It will be very difficult to assess and compare the work of the OPG and so on with regard to cost recovery and efficiency. You do not have much to compare with, and there are different aspects. I have unfairly picked on the firearms licensing department, but we can compare it with every constabulary in GB and plainly see that it is not efficient. You will have a harder task because there is no comparable data out there. We know that in England and Wales — I am not sure about Scotland — they are allowed to build up a surplus, whereas, under DFP, you cannot do that here.

Mr Luney: No. In England and Wales, they were given specific ministerial permission to over-recover to fund their transformation programme. They had over-recovered a couple of years before, anyway, and, in response, had tried to reduce fees halfway through the year but still ended up over-recovering.

You are right: it is difficult to make a comparison with other jurisdictions. It is not widget counting. You cannot say that they do an average of 50 applications per member of staff so we should do the same. There will be differences, but those differences need to be demonstrated and justified. It may be that England and Wales benefit from greater economies of scale than Northern Ireland.

Mr Frew: Maybe this is a stupid question, but would you like to build up a surplus?

Mr Luney: Aye. [Laughter.]

Mr Frew: If you had a surplus, would it reduce your budgetary pressures?

Mr Luney: Yes, of course. At the minute, the Courts Service does cost recovery by applying it across the agency's full outfit for the full scope of operations. It could be that you over-recover in one area, but that would be offset by an under-recovery in another. A decision needs to be made about how we deal with the OPG and whether we treat it as a unit on its own or look at it as part of the Courts Service, which is what we believe it will be.

England and Wales have used their over-recovery to fund their transformation programme, and I think that there was a suggestion that we would not need that because we would be a new service. They are doing things as part of their transformation programme that I would not expect to have in our baseline. They are starting to look at the introduction of an alternative dispute resolution service to try to deal with complaints and investigations in the OPG instead of making unnecessary referrals to the Court of Protection. It would be nice to have that, but it is not built into our baseline. We might look at that sort of thing in years 3, 4 or 5.

The Chairperson (Mr Ross): It would be one way of paying for my online dispute resolution system.

Ms McAlpine: I will play devil's advocate: if you are allowed to keep your over-recovery, you risk overcharging. It is then not merely a fee for a service but a tax, and that raises questions about access to justice.

Mr Frew: Are there any implications for your present consultation on courthouse closures?

Mr Luney: I do not see them reading across. The decisions on the court estate will be made before the Bill is implemented. I do not see a direct read-across.

Mr Frew: Is there no possibility that you might realise, when you implement the legislation, that you could have done with those courthouses?

Mr Luney: The pressures that the court estate proposals have been designed to address are immediate. We will come back to the Justice Committee on 26 November to discuss those pressures.

Mr Frew: This talk of immediate decisions does not reassure me. It smacks of short-termism.

Mr Luney: The consultation paper was clear about the drivers. I know that we are getting into a different discussion now.

Mr Frew: Yes, I am going to get lashed here. I understand. I wanted to make sure that it did not impact the Bill.

The Chairperson (Mr Ross): Thank you all very much.

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