Parole Board (Scotland) Rules 2022 (SSI 2022/385)
Our next agenda item is consideration of a negative instrument: the Parole Board (Scotland) Rules 2022. I refer members to paper 2. Do members have any questions on the instrument?
I would like to raise a couple of things. On page 4 of our note on the rules, there is reference to a provision whereby the Parole Board for Scotland could consider whether people convicted of murder or culpable homicide make known the whereabouts of their victims’ remains. My colleague Jamie Greene has been calling for such a provision, as have I, and it indeed will form part of his forthcoming bill.
What puzzles me is that the note goes on to say that
“this matter may be considered where relevant, but does not change the underlying test for release applied by the Board”.
It is effectively a superficial tweak. The rules say that the Parole Board can consider that, but it will have absolutely no effect. That begs the question: why bother? That should either be done with intent or not done at all. It seems to be a bit of a sop. I know that such cases are rare, but there are a significant enough number of them, and there are families who, right now, do not know where their loved ones’ remains are, while prisoners serving a sentence do know. If there was a meaningful way of motivating prisoners to disclose that information, by virtue of what has been called in Scotland Suzanne’s law—it has other names elsewhere in the UK—it should be deployed.
I have a second point, regarding victims, who are referred to page 5 of our note. I have two things to say. First, I underlined the part that says:
“these changes are intended to prevent any victim getting information or contact that they do not wish to have and which may cause distress or disruption.”
In my experience at the committee, I have not heard any meaningful evidence that that is really an issue; the issue is largely about crime victims having to battle to get information, even where they have engaged with a victim notification scheme, which the Government admits is not doing its job and which is subject to an on-going review.
The evidence that we have heard is that there are barriers, and people have to be proactive. It is all very impersonal, and there is sometimes almost a sense of hostility towards victims trying to get basic information. It would be interesting to see when the victim notification scheme review is due, and it would be curious to see what the Government says about it. Clearly, it is not working.
Okay—we have noted those points.
There is quite a lot contained in the Scottish statutory instrument, and in ploughing our way through it we come across a number of fairly significant issues. We have a very short procedure for commenting on something that could be extremely important.
I wish to highlight two issues. The first is covered on page 4 of our note, which refers to risk management plans and says:
“There is also a new addition to the rule on decision summaries (rule 34) which provides that the Board must give reasons for a decision where it differs from the recommendations in a RMP. These provisions ensure that the most recent assessment of risk is available to the Board in their consideration of such a case and that they articulate their reasoning in reaching their decision.”
When I read that, I thought that that was quite an onerous responsibility for the Parole Board. If we have an authority with expert opinion that makes a recommendation, it will be quite onerous for the Parole Board to set out why it has gone against that. That is just an observation.
The point in the policy note about prisoner preparation says:
“A provision has been added to the rules to assist the person concerned to be better prepared for a parole hearing.”
I do not think that there is any mention about literacy issues. I thought that that should perhaps have been mentioned.
Which paragraph of the note are you referring to?
That is at the end of page 4. The policy note covers the preparation of prisoners for parole hearings, which seems a good thing. It says:
“This allows information to be obtained from the person concerned in advance to assess whether they are ready to proceed.”
I do not know whether or not this is relevant, but it has occurred to me that some prisoners will have literacy issues. If a new rule is to be introduced about preparation, it might be worth mentioning that it should include support for any literacy issues.
10:45
My first point is maybe a wider point. This is quite a big SSI and we are looking at it in the context of the negative procedure, which, as members know, gives us limited options. For example, it is impossible for us to amend it; such matters are outside of our control because of the primary legislation that the rules are connected to. Had the instrument been subject to the affirmative procedure, we could have heard from the cabinet secretary and his advisers on it, taken evidence on it and done other things with it rather than being left with the only option of annulling it, which is unhelpful, because there is some good stuff in it.
However, there are things in the rules that are not so good, and that is what I wanted to point out. The point that my colleague Russell Findlay made about matters that the board may consider around release was absolutely correct. The issue is specifically about someone who has been convicted of murder or homicide and whether they have failed to reveal the location of a victim’s body. This is a real missed opportunity. The issue will feature in my member’s bill, which is yet to be drafted, unfortunately, and it featured heavily in my consultation. The overwhelming response to that was that there should be an overt rule on the matter with regard to the test for release. The policy objectives just say that the rule
“does not change the underlying test for release”
but revealing a location might be a factor that is taken into account. I presume that it already was a factor, so the rules do not seem to make any change there.
Had I been given the opportunity to amend the rules, I would have made them stronger. The Government has missed an opportunity to introduce Suzanne’s law through a simple procedural mechanism that would go a long way towards serving justice to the families of those victims.
The second point is about the final paragraph on page 5 of the policy note, which talks about changes to the rights and roles of victims in all of this. The provision simply allows for victims to observe parole hearings. Again, that is a missed opportunity. It still does not give victims the opportunity to make meaningful representation during those hearings, which is a long-standing issue. The rules could easily have been altered to allow victims to speak or have a voice during parole hearings, and I have felt strongly about that for some time.
Furthermore, that paragraph talks about those who are registered with part 1 of the VNS who do not want to be involved with the Parole Board process. I question the evidence on that. How many chose not to be involved in that process? How many victims or their families were subject to poor communication from the VNS and were notified so late or out of the blue that they were unable to participate in the process, or unwilling to because of retraumatisation? We know that uptake of the VNS is poor because of its opt-in nature. Again, there is a missed opportunity to look at opt-out versions of the scheme.
We also know that a number of people who asked to participate in—when I say “participate” I mean “observe”—parole hearings were rejected. I would have liked to have seen some numerical evidence about that. How many people asked to attend a parole hearing and were rejected? I have only anecdotal evidence but the figure is certainly in the dozens, and I have tried to get some more information about that in the past few months. A number of people were denied access to those hearings, especially when the process went online.
Should the Parole Board rules be explicit and make it clear to victims way in advance and up front that they have the absolute right to observe hearings unless there is good reason for them not to or a reasonable objection is raised? It should not be a matter of discretion for the person who is in charge of that Parole Board hearing. I have more questions about that.
I am disappointed that we are being asked to shoo through a negative instrument when it concerns important matters that could have empowered victims of crime and is failing to do so.
Does anybody else want to come in?
I ask for clarification on the timeline for the SSI and whether there is scope to take some of those issues up with the Scottish Government. It seems like a missed opportunity not to try to get some of the matters incorporated. I appreciate that this is probably the end of a very long process, but we have not been engaged with the process, so it would be appropriate to enter into correspondence to raise those issues and see whether this is an opportunity that can be taken.
I bring in Stephen Imrie on that point.
It is not for me to talk about correspondence; that is your decision. I point out that the SSI will come into force on 13 February, so, with recess pending, there is probably not scope for it to come back to the committee. The SSI will come into force on 13 February unless any committee member or other member lodges a motion to annul, but there is nothing to stop the committee seeking further information or making the points that you have made in various letters, if that is what you choose to do.
Can I clarify something, convener?
Yes.
This is not the first time that we have been put in the position of being asked to review legislation days before it comes into force. Especially ahead of a recess, there is no opportunity to discuss the matter until after the SSI has come into force.
It would be a different matter if there were clear policy differences or matters of opinion in the SSI that would be suitable to oppose, but there is little to oppose. There is nothing in the SSI that I disagree with, and it seems to make some sensible changes, but there are things that could have been done differently or better, and things that should have been added to the SSI. That is where the matter is unclear. If our only option is to lodge a motion to annul, we would lose the 70 per cent of the SSI that is comprised of good bits if we have a problem with the other 30 per cent. That is the unfortunate position that we are in.
In this scenario, there is no point in stopping the SSI going ahead, but I wonder how we can raise those issues. They could perhaps be dealt with in a further SSI, which I am sure that the Government could find an appropriate way to get to us in good time. We should stress to the cabinet secretary that we should have had a paper on the SSI weeks ago.
That covers what I was going to suggest. The points that members have made are valid, and it is not just one or two points; we have picked up issues across a number of the specific areas in which the SSI is relevant. I am grateful to members for highlighting their concerns and thoughts, and we now have them on the record.
To sum up, unless anyone is planning to lodge a motion to annul, which we have spoken about, we have no further recommendations to make, and we will proceed as planned. It is important that we use the opportunity to draw to the attention of the Parole Board and the cabinet secretary the matters that have been raised. Perhaps we can incorporate further work on that at a future point. I am grateful to members for raising their points.
Are members content not to make any recommendations to the Parliament on the instrument, with the caveat that we do some further work on the points that have been raised?
Members indicated agreement.
Fulton, can you confirm that you are happy with that?
Yes.
Short and sweet.
What options are available to us? Can we lodge some kind of motion?
Do you want to speak to Stephen Imrie separately on that, or do you want to do that just now? Do you want clarity on something?
If it needs to be acted on now, can we do that just now?
In essence, the process is for any member to speak to the chamber office and lodge a motion to annul. I can speak to you after the meeting about the details of doing that. That would probably have to be done fairly swiftly. Arrangements would then be made for that motion to be considered and debated. It would need to be done fairly imminently; you would need to do that in the next day or two. I will catch you at the end of the meeting, if that helps, and we can go through the process.
Thank you.
Thank you very much. That concludes the public part of our meeting, and we will move into private after a short comfort break.
10:55 Meeting continued in private until 12:47.Previous
Budget Scrutiny 2023-24