Official Report: Minutes of Evidence

The Chairperson (Ms Bunting): Aidan Stennett from the Assembly's Research and Information Service (RaISe) is in attendance. Thank you very much, Aidan, for bringing your briefing to us today. We will hand over to you shortly. I will just give you some indication of what will happen. When you finish the briefing, members will have questions about costings: the cost of biometrics, the commissioner, children's bail and registered intermediaries. There will also be a question on the balance of cost with rights and duties. Of course, your briefing could throw up further issues. For now, we will hand over to you and take it from there.

Mr Aidan Stennett (RaISe): Thank you, Chair. As you pointed out, I am here to talk about the costings in the Justice Bill, particularly those presented in the explanatory and financial memorandum (EFM). The briefing and presentation supplement your previous briefing from my colleague, Judith, on the policy implications of the Bill. The purpose is to further support the Committee's scrutiny of the Bill, and you will notice that, throughout the paper, I have raised scrutiny points that are designed to support the Committee's scrutiny processes.

I will just go through what I will cover. The first theme for today is the costs as outlined in the explanatory and financial memorandum. I well then talk about the budgetary context in which the Bill has been introduced. I will move on to talk about some of the potential costs to the public purse identified in the Bill as introduced. I will throw a lot of information at you during my presentation, so I will end by summarising a few key takeaways.

The EFM includes only limited financial information and no concrete numbers. It states simply:

It also states that some provisions will be subject to individual business cases but does not indicate which provisions will be subject to such cases.

I tried to look at three different levels of the budgetary context, starting with the United Kingdom's, which remains uncertain since the change of Government. The Budget next week will be a key fiscal event that will provide clarity not only on the United Kingdom's Budget but on Northern Ireland's spending envelope. Ahead of the Budget, though, the Treasury has highlighted the point that difficult decisions will be necessary. In the press this morning, there was talk of the £50 billion of tax and spending measures that will come in the Budget. At the same time, the spending review is ongoing and will be completed in spring 2025. Obviously, what the impact of that will be on public finances is unclear at present.

I will move down a level to the Northern Ireland budgetary context. The Minister of Finance has noted that there are not only increased demands on Northern Ireland’s public services but limited spending resources to meet those demands. Recently, the Department of Finance published the Executive-agreed Budget sustainability plan, which sets out the need for balanced budgets and the sustainable use of resources.

I will now focus on the Department of Justice, which, in September 2024, noted that it was subject to £351·1 million in spending pressures and that extremely difficult decisions on prioritisation and service provision were necessary. The Department also highlighted the action that it has considered taking to address those spending pressures, and that includes staff-related actions and scaling back some projects and services. Also in September 2024, the DOJ noted that the budget pressures could have significant impacts on the delivery of services by the PSNI to the community. The Department of Justice also highlighted a decline in planned officer numbers from 7,100 in 2021-22 to 6,358 in March 2024. The DOJ also highlighted the pressures on the 999 emergency line, reduced neighbourhood policing teams and a reduced presence on the roads, fewer detectives available to investigate crimes and the potential for station closures and restrictions.

In that context, we will move on to the provisions of the Bill and their potential financial implications. The first Part, as members will be aware, focuses on DNA and biometric information. There are two main parts to it. The biometric retention regime proposed in the Bill is a 70/50/25-year model whereby the period of retention is determined by things such as the nature of the offence, the outcome and the age of the individual. RaISe contacted the PSNI to get its views on the potential costs of that, and the PSNI noted in response that, in 2017-18, it spent £2·1 million on IT for biometrics provisions in the Criminal Justice (Northern Ireland) Act 2013 that were not enacted. It also noted that its 2024 10-year capital plan contains a £0·5 million inescapable bid for biometrics software development in the 2026-27 financial year. Commenting on the new proposals, the PSNI said that they were more complex than those in the Criminal Justice Act 2013 and that, as a result, the cost to the organisation would be:

The PSNI noted that, at present, it is "extremely difficult" to calculate the projected costs and stated that it will not be in a position to commence work on software development until the Bill receives Royal Assent and any consultation on related secondary legislation is completed.

Three areas for regulations have been mooted in the Bill, the first of which is the power to make further transitional provisions and savings. The second is the review of long-term retained data, and the third area relates to persons charged with a qualifying offence. The secondary legislation raises a couple of questions. First, when will it be introduced in the Assembly? Secondly, is the Department planning any consultation or cost-benefit analysis of the regulations before they are introduced?

The second big area in Part 1 is the biometric commissioner. RaISe contacted the Department to ask for information on that. The Department stated that it is:

but that, as that work was ongoing, it would not be appropriate to share it at this stage. Similar organisations operate in GB. In England and Wales, there is a Biometrics and Surveillance Camera Commissioner, established in 2021 with, in 2023-24, an annual budget of just under £600,000. The commission employed seven staff of a complement of nine. The Scottish Biometrics Commissioner had a budget of £415,000 in 2022-23. The commission was staffed by the commissioner and three full-time members of staff. In the first year, the Scottish commissioner's costs were £278,000, which covered that organisation's set-up and running costs.

I move on to Part 2, which concerns bail and custody provision for children. Again, we contacted the Department about that. It stated that the new custody and bail proposals for children have been introduced to ensure compliance with international instruments, rather than to save money. That said, the Department hopes that the proposals will reduce pretrial detention.

Figures from the Youth Justice Agency's annual reports show that the average cost of custody per young person is rising, and that is based on one of the methodologies by which the reports gathered figures. There are two methodologies, which I have called "maximum number of places", which is the total operating expenditure divided by the maximum number of spaces available, and "resourced places", which is the total operating expenditure divided by the number of resourced places available based on staffing levels and resources available for service delivery. It is from the second one that there has been a rise in the annual cost of custody per young person. The agency commented that the reasons for that rise include staff costs.

Finally on this, the DOJ has noted its difficulty in calculating the cost of keeping children in custody where bail has been granted but no suitable accommodation has been secured:

Part 3 concerns the use of live links. If enacted, the Bill would extend the use of live links to enable remote interviewing by police officers and for seeking authorisations of pre-charge detentions. The DOJ has stated that it does not consider there to be any additional costs for that and that it may, in fact, result in efficiencies due to the like of reduced travel and escort costs. At the same time, that has not been quantified. That opinion was supported by respondents to the live links consultation that took place in April to June 2020.

Part 4 contains provisions under the heading "Administration of Justice". The paper looked at four of those that could have potential public purse implications, if enacted. Clause 26 is about extending the use of registered intermediaries to the Court of Appeal. The Department, in its response to us, noted that that currently happens when approved by the judiciary and that the Bill proposes a statutory basis for that. The Department expects that to result in two or three additional cases a year, at a cost of £300 to £400 per case.

Clauses 27 and 28 would amend the role of the taxing master in determining the payment for legal aid and allow the Department to determine the amount that it pays. The DOJ states that the provision "in and of itself" will not save money. It also said that it is yet to determine a fee structure and will not be able to assess any financial savings until that is carried out.

Clause 29 will extend the scope of the independent reviewer of criminal records' automatic review powers. The DOJ has noted that such reviews are already being carried out by the independent reviewer and have been since March 2020. It has added that the independent reviewer has done so without the need for additional resources, and, therefore, it does not envisage any additional costs.

Clause 30 allows the Department to extend court security provision through secondary legislation. The DOJ has stated that it does not foresee any costs arising from those provisions. Again, as with the biometrics secondary legislation, there are some unknowns, such as when it will be introduced, what sort of pre-introduction costs there will be and when the consultation will take place.

To sum up, there are some key takeaways. The explanatory and financial memorandum has limited financial information and states that the Bill's provisions will be met by existing budgets. The Bill has been introduced at a time of budgetary pressure, unknowns and a renewed focus on sustainability in Northern Ireland. The PSNI has noted that it expects costs to arise from biometric provisions, if enacted, but that it is not currently in a position to provide an estimate of those costs. The biometric commissioner provision is likely to introduce set-up and operational costs. Similar organisations in Great Britain have annual budgets of between £400,000 and £600,000 a year. The Department is carrying out a cost assessment on that but is unable to share it at this point. The live link proposals may improve efficiency, but the impact is unquantified. The DOJ suggests that the administrative and justice provisions examined in the paper will have limited or no additional costs to the public purse.

The secondary legislation, particularly for biometrics and court security introduces unknowns, and these are the key questions: when will they be introduced, and what cost-benefit analysis or consultation will take place?

I am happy to take questions, Chair, and, hopefully, I can answer them.

The Chairperson (Ms Bunting): That is great. Thank you very much. You are in a difficult position: you are here to provide us with a financial briefing when you have not been given any information. It has been difficult for you, but thank you for highlighting some of the questions. I will open the Floor to members.

First, a reminder that, while we will ask Aidan questions, some of them may end up having to be posed to the Department. Obviously, Aidan is here representing RaISe, not the Department. We will work our way through it and see where we get to.

The first subject that we will look at is biometrics, and Stephen and Deirdre have questions.

Mr Dunne: Thank you, Aidan, for your detailed presentation. I appreciate that you have a lot of work on your hands.

The pack mentions that the PSNI has resourcing issues in its IT department. I am keen to hear a bit more about that, if you have any more information.

Mr Stennett: No, that is as much as the PSNI said. The response laid out a range of issues causing it difficulties in providing an assessment of the costs, and that was among those listed. Maybe you can go back to the PSNI to get more information.

Mr Dunne: Yes, OK.

The budget issues are a major concern, and there is a link with the commissioner. We have seen the £415,000 Scottish figure and the £400,000 to £500,000 for comparable organisations in GB. In your opinion, is there any assessment of how realistic it is that the Department will have the resources?

Mr Stennett: I asked that question throughout the paper and in the scrutiny points. I am not sure, and the Department has not completed its assessment of the costs. It is a big unknown until the Department is in a position to share that.

Mr Dunne: Finally, the PSNI spent £2·1 million in 2017-18 on IT, and the proposed scheme is a lot more complex than the scheme proposed in 2013 through the Criminal Justice Act (Northern Ireland) 2013. Is any more detail available from your work to date?

Mr Stennett: Just that the PSNI has pointed out that the £2·1 million did not include internal staff costs, such as the reassignment of staff in the organisation. The costs to the criminal justice organisations involved in the development of the software and to national bodies, such as the police national computer and the Forensic Information Databases Service (FINDS), suggest that the £2·1 million on IT is likely to be a small proportion of what they paid at the time. The PSNI said that the software costs will be commensurate with the complexity, in its view, of the proposals.

Mr Dunne: It is six or seven years on from the 2017-18 figure. Thanks, Aidan.

Miss Hargey: Thanks very much for your presentation. The scrutiny questions for the Department will be useful for our report.

On the additional regulations for biometrics, I am concerned about the review process and the fact that there is no additional financial information. My concern is that, for example, a way to stop the commissioner's review work would be to constrain the budget. I am concerned that that could happen in this case if the cost does not come before the regulations.

Mr Stennett: There was nothing in the EFM about that. I do not believe that the Department spoke to that in its response, though I would have to go back to that.

Miss Hargey: The consultation included no cost impacts for the biometrics bit: is that right?

Mr Stennett: Respondents were concerned about resources, particularly for the review function and the biometric commissioner.

Miss Hargey: We have done some benchmarking of costs for the commissioner. In the absence of costs from the Department, are there review functions in the other jurisdictions that would enable us to do a cost analysis?

Mr Stennett: I am not 100% sure, but I can certainly look at that for you.

Miss Hargey: That would be good, thank you.

You have answered my question on the set-up costs. I was going to ask about the initial costs. You mentioned the increasing costs in Scotland, and there was quite a jump. Was that mainly staff costs, or were there other costs?

Mr Stennett: I believe that that was the difference between it running for part of a year and a full year.

Miss Hargey: OK. My other question is on the cost-benefit balance. We could look at this purely through a cost analysis, and that is important. Part of the issue is that we do not have all the financial information. We were told that there would be more information, but we have not received it yet. There are queries that we will have to put to the Department.

It is balancing the cost against rights, and, on the back of legal judgements, it is the right thing to do. It is a double-edged sword. It is the right thing to do and will mean a better system for children and young people, particularly around the retention of DNA, but my concern is that so many provisions rely on regulations. Will the regulations be done, or will the costs be used as a way of not completing or implementing those provisions down the line? I am keen on the biometric review process: can we look at benchmarking by getting information from other areas with similar provisions? That would be good.

The Chairperson (Ms Bunting): Does anyone else have anything on biometrics or the commissioner? I do.

Aidan, in what you read out to us, for the financial year 2022-23, the cost for the commissioner in Scotland was £332,000. That was for the commissioner and three full-time equivalents. In your research, did you find a breakdown of that figure?

Mr Stennett: It should be in the annual report and accounts. I can find that for you, if it is there.

The Chairperson (Ms Bunting): That would be helpful, and, if not, we will ask the Department to get it. Those are astonishing costs.

Your paper says that the PSNI stated that it will require the full cooperation of other bodies that may seek:

Did the PSNI elaborate on that, Aidan?

Mr Stennett: No.

The Chairperson (Ms Bunting): We may need to take that up with the PSNI. That is fair enough. Thank you. We will make a note of that and take it forward.

If nobody else has anything on biometrics, I will move on to Maurice, who has questions on children's bail.

Mr Bradley: Thanks very much you for your presentation, Aidan. It was very insightful.

My question is about children's custody and bail and the provisions aimed at reducing the pre-detention operation. The briefing states that it costs around £387,000 per young person but does not say how it arrives at that cost. It is a very hefty cost per young person, but what does it entail?

Mr Stennett: As I said in the presentation, the Youth Justice Agency calculates the cost in two ways, and the one that you refer to is the total operating expenditure divided by the number of resourced places available.

Those resourced places are based on staffing levels and the resources available for service delivery. That is how it is set out in the methodology. The reason that the Youth Justice Agency has given for the movement is:

One of the scrutiny points that I suggested is that the Committee may wish to ask the Youth Justice Agency what its preferred methodology for measuring that is and to explain what the operational costs entail and ask it to break the figure down a bit more.

Mr Bradley: It would make the costs more understandable, because they are big.

The briefing paper indicates an expansion of the registered intermediaries to appeal cases, but no more than two cases are expected each year, at a cost of £300 to £400 a case. How can you be sure that it will be as low a number as two a year?

Mr Stennett: I am quoting the Department's numbers, which I am taking at face value.

The Chairperson (Ms Bunting): We will need to follow that up with the Department. We will also follow up your previous query with the Department, Maurice.

Mr Bradley: Thanks, Aidan.

The Chairperson (Ms Bunting): If no one has a question on children's bail or on intermediaries, we will go to Ciara for her questions on legal aid.

Ms Ferguson: I have one specific question. In your review of legal aid undertaken with the Department, did it indicate how it will set fees and rates? Stewart and I sit on the all-party group on access to justice, and we met the Law Society and the Bar Council this week. They told us that, over the past 15 or 20 years, the complexity of cases has increased because of technology and because of the complexity and vulnerability of individuals. The fee has remained static over many years, however. How will the Department move to setting a rate, and are there models of good practice that can be applied?

Mr Stennett: I have no more detail on that beyond the fact that the Department is seeking to determine a fee structure that will take into account value for money. It is yet to be determined, so the Department is not able to comment on whether there will be any financial savings. On the policy side —.

Ms Ferguson: There is nothing at the minute.

Mr Stennett: I focused on the financial side of the Bill.

Ms Ferguson: Will we be able to come back to that, Chair?

The Chairperson (Ms Bunting): Yes. We will come back to that in any case, Ciara. The issue is that setting the rate is one of the powers that the Department has taken, and it will determine on a case-by-case basis what is paid. There are issues with consistency and with the work that has been done. There are question marks about the role of the taxing master. The briefing was on the financial aspects, and we have further financial issues to tease out with the Department, but some of the general principles will need to be teased out as we further scrutinise that part of the Bill.

Ms Ferguson: That is fine. Thank you.

The Chairperson (Ms Bunting): On the basis of what members have heard, does anyone have anything to add?

Mr Dickson: I have one general question. I had no specific questions on the topic areas. Given that most, if not all, of the legislation will have a financial implication and, in great part, the Bill has come about because of court judgements, directions or a desire to modernise the policy intent, will there be small, modest, medium or extremely large financial implications of implementing the Bill?

Mr Stennett: I cannot really say, because there is not a great deal of information available to quantify the cost.

Mr Dickson: How does the Bill compare with the cost of other legislation?

The Chairperson (Ms Bunting): That is the problem, Stewart: we do not have the costs. For every question that has been asked of the Department about the financial implications and about how things will be funded, the Department has come back, in every section of its paper, with, "We're not in a position to share that. We're still working things out". The PSNI, which presumably indicated what it spent on the previous Bill, has said, "We can't cost any of this until we know what has been passed". Aidan is in a difficult position, as is the Committee.

Mr Dickson: The Department is probably also in a difficult position, given that it has had judicial decisions imposed on it to make changes, and it has to be able to work everything out. Yes, it is a chicken-and-egg situation: until the legislation is in operation, the Department does not know how much it will cost, yet it has to work out a ballpark figure for what it will take to deliver it.

The Chairperson (Ms Bunting): The Department has to do that, but it is saying that it is working through some of that information but is not in a position to share it. There are a couple of points to make about that. As Aidan said at the start of his briefing, the Department outlined how a lot of the potential costs will be paid from existing resources and how, where that is not the case, it will produce business cases. What the Department has not told us, however, and as Aidan again pointed out, is which aspects will be done by business case and which —.

Mr Dickson: Yes, which is which.

The Chairperson (Ms Bunting): The other problem that the Committee has is that the Department tells us that it does not have the finances to fulfil its statutory obligations, yet now it says that the Bill can be paid for from existing resources. We need to tease out more about that.

More than that, I am fairly certain that the Minister indicated in the House, either at Question Time or at Second Stage, that the Department was going to send us or had sent us a detailed financial outline of how it envisaged the Bill being paid for and what the costings would be. It is clear that Aidan has not yet received that paper. May I check whether officials have received that paper?

The Committee Clerk: We have not.

The Chairperson (Ms Bunting): No, they have not. I am trying to establish, when the Minister refers to that paper, whether she is referring to a response that was prepared for Aidan that says, "We can't share it" or whether a different paper is yet to come. We need to clarify that. At this point, what we are getting is, "We are working on that, so we can't share it". At this stage, we have no notion of how things will be paid for. The purpose of this meeting and of Aidan's work was to give us some clarity, but I am not sure that we are any further on at this stage. That is zero reflection on you, Aidan. You have not been given the information, so what you produced without it is really useful for raising questions.

The point was made either at Second Stage or to the permanent secretary that, if a Department cannot fulfil its statutory obligations, how does it then intend to finance things that, it says, can come from existing resources? We will have to look into those issues as we progress, but we are still scoping. We are supposed to be looking at the financial implications, so it is difficult not to have anything at this stage.

Miss Hargey: If that information is not ready, it would be good at least to ask the Department for a timeline so that we know when we can consider it. I apply a caveat to that by saying that we have to balance doing that against court judgements and people's rights. There is a fine balance to be struck. We are scrutinising the finances in the context of where budgets are now, so we should go back to the Department and ask it to provide clarification and a timeline. That would allow us to include those issues in our forward work programme as we scrutinise the Bill.

The Chairperson (Ms Bunting): The starting point, however, was the Minister referencing a paper. Is it a different paper from that which was sent to RaISe, and, if so, where is it? The other request is for a time frame for when the Department will be able to share information with us.

The Committee Clerk: My reading of it is that that referred to the information that was provided to Aidan, but we can double-check that.

The Chairperson (Ms Bunting): My understanding of the Minister's remarks, which, I think, were made in good faith, was that a detailed report was coming. If, however, that detailed report states, "We can't share it", I am not sure that that leaves the Committee in a good place.

Let us pursue that a wee bit to see what we can tease out. I appreciate that some of it is a question of chicken and egg, but, if the Department is working on the information, we will have to see something at some stage. We will need to understand the impact that the Bill will have on the departmental budget.

Nobody has any other questions for Aidan, so he is free to go. Aidan, thank you so much. That is great.