Meeting of the Parliament [Draft]

Meeting date: Thursday, May 16, 2024

Official Report 1091KB pdf

---

Prison Population

The next item of business is a statement by Angela Constance on Scotland’s prison population. As the cabinet secretary will take questions at the end of her statement, there should be no interventions or interruptions.

14:26  

I last updated Parliament on the prison population in late February. Although population levels were still concerning at that point, we had seen a period of limited overall growth over the preceding four months.

Unfortunately, that has now changed. Over the past two months, the population has risen sharply, from 7,948 on 18 March to 8,348 this morning. Given that sudden increase, I felt it critical to keep Parliament updated, to outline what action is being taken in response and to highlight some stark and challenging decisions on which Parliamentary approval will be sought over the coming weeks and months.

The immediate cause of the sudden increase is unclear and the present rate of growth might not continue. However, with the population having increased by around 13 per cent since the start of 2023, there is extremely limited capacity to absorb even temporary increases.

This morning’s figure of 8,348 individuals in custody represents one of the highest-ever prison populations recorded in Scotland. There is now a critical risk to the continued safe and effective operation of the estate, with multiple prisons now being essentially full.

The Scottish Prison Service’s ability to deliver rehabilitative regimes has been severely curtailed; visits to prisoners are becoming difficult to maintain; and there are increasing challenges to the effective delivery of national health service services.

It is worth noting that we are not alone in that—England and Wales and Northern Ireland are facing similar challenges. The United Kingdom Government has announced a number of measures in response, including legislating for a presumption against short sentences; expanding provision that facilitates the early removal of foreign nationals; and continuing to extend its early release scheme, with recent reports suggesting that some prisoners might be released up to 70 days early, which represents an increase on last year’s figure of 18 days.

Significant work is already under way to address the issue. Since the population began rising again last year, the SPS has been at the forefront of managing the situation, and I would like to thank all those who are working in our prisons in increasingly challenging circumstances.

The SPS has kept its population management strategy under review to ensure the best use of the estate, including by introducing a centralised and more strategic process for prisoner transfers. It is also exploring the feasibility of adding temporary accommodation, as has been done in England and Wales. That is not a quick fix, but it might become necessary if numbers continue to rise. Excellent progress is being made to optimise the use of home detention curfew, which is informed by risk assessment with individuals who are released subject to licence conditions. There are currently 97 people on home detention curfew, which is an increase from around 50 to 60 previously. The SPS’s on-going work will benefit from a 10 per cent increase in its resource budget in 2024-25.

Looking beyond the SPS, we are taking action in a number of areas. We have increased funding for community justice by £14 million in 2024-25, to £148 million in total.

To address the high remand population, we have introduced electronically monitored bail and supported the expansion of bail supervision to all areas. The latest official statistics show that bail supervision is at record levels. We are preparing for the implementation of measures in early July that will enable courts to take into account time spent on electronically monitored bail in sentencing, as part of the Bail and Release from Custody (Scotland) Act 2023. Later this year, commencement of provisions from the Children (Care and Justice) (Scotland) Bill, which was recently approved by Parliament, will end the imprisonment of under-18s, creating further capacity at HMP Polmont. We are also considering whether compassionate release could be used more broadly in appropriate cases, taking into account the ageing population and the prevalence of complex health and social care needs. In all this, we are working across the justice system and beyond, including with health and social care colleagues in particular, to identify potential solutions.

Despite all the steps that are under way, it is increasingly clear that further action is required. The measures that I have described will simply not have as large an impact as is necessary to avert a crisis—we should be in no doubt that that is what we are facing. If our prisons are to remain functional and able to house the most dangerous offenders, we have no choice but to take urgent action to reduce pressure on the estate. For that reason, I will be seeking Parliament’s input on, and consent for, three measures that I consider are now necessary.

The first is emergency release. On 26 May, we will bring into force section 11 of the Bail and Release from Custody (Scotland) Act 2023, which was scrutinised by Parliament last year and which provides ministers with a power to release prisoners in emergency situations. My hope was that that power would never need to be used; however, as things stand today, my view is that we have reached the threshold for taking emergency action. The sudden and sharp rise in the prison population over recent weeks, combined with the fact that that population is already high, has significantly increased the risk to the health, safety and welfare of both prisoners and SPS staff, as well as to the security and the good order of the prison estate. Serious concerns have been formally raised with me by the chief executive of the SPS, His Majesty’s chief inspector of prisons and the Prison Governors Association.

If the legal test for use of emergency release is satisfied when the provisions come into force on 26 May, I intend to introduce a proposal for Parliament’s consideration as soon as possible within the following two weeks. Members will have the opportunity to scrutinise and debate the approach. In this instance, we will not release a single prisoner without Parliament’s consent. I also want to work with Parliament to expedite that process.

My intention is that those who are released would be serving sentences of under four years. Public safety will always be my priority. I can reassure Parliament that protections are in place so that no one who is serving a sentence for sexual offences or domestic abuse will be released, and a governor veto will also be available. We will engage with victims organisations, local authorities and other key partners in preparing for any release; initial meetings are under way.

This is not a decision that I take lightly and I fully appreciate the concerns that it will raise. However, we must ensure the safety and wellbeing of SPS staff and those who are in their care, and that our prisons continue to function effectively to accommodate those who pose the greatest risk of harm.

However, emergency release will not solve the problem in the longer term. Without more sustainable solutions, there is a risk that we will be faced with the same decision in a few months’ time. The second measure, therefore, is to look again at how we manage the release of long-term prisoners, which was last examined in detail almost a decade ago, when Parliament created the Prisoners (Control of Release) (Scotland) Act 2015. That act, in effect, abolished automatic early release for long-term prisoners. The rationale for doing so, which was to move towards a more individualised assessment of readiness for release, is still valid today. However, we also need to take into account the growing prison population, increasing average sentence lengths and the potential benefits of increasing the time that offenders spend on supervised release before the end of their sentence. My intention is to carry out a short consultative exercise over the summer and to return after the recess with a proposal for a bill for Parliament’s consideration to change how long-term prisoners are released.

Finally, I intend to introduce secondary legislation to amend the eligibility criteria for home detention curfew and increase the period of time that individuals can spend on release under licence conditions. As that will involve affirmative regulations that will require Parliament’s active agreement, I look forward to discussing the matter in detail with the Criminal Justice Committee in due course.

In taking that approach and combining emergency release with longer-term measures, my hope is that we can both mitigate the immediate crisis and start to address the trends that have brought us to this point. I fully appreciate the challenges in what I have set out, and working towards cross-party agreement on any measures to be taken will be critical. As I have said, we will not proceed with any of those measures without parliamentary approval. I have written to the justice spokespeople and invited them to meet me and the chief executive of the SPS, because how we respond to the situation goes beyond the Scottish Government and is rightly a matter for the whole Parliament. We will also publish a briefing paper to ensure that all MSPs have relevant background information.

I am genuinely open to discussing with the Opposition parties what options are available and how best to proceed, but I consider that we have no choice but to act if we are to avoid an unprecedented crisis developing. I will welcome members’ views this afternoon. I emphasise once again the need for this Parliament to consider in detail the critical situation that we are facing and to come to an agreed suitable response.

The cabinet secretary will now take questions on the issues that were raised in the statement. I intend to allow about 20 minutes for questions, after which we will move on to the next item of business. It would be helpful if those members who wish to ask a question would press their request-to-speak buttons.

I thank the cabinet secretary for an advance copy of her statement. Recently, the chief executive of the Scottish Prison Service, Teresa Medhurst, confirmed that seven of the country’s 15 prisons had declared red status due to severe overcrowding. Scotland’s prison officers are struggling to cope under the huge pressure that they face, and the Prison Governors Association has described the situation as a state of “permacrisis” for staff.

The situation has spiralled because the Scottish National Party has failed to revamp the prison estate. The SNP’s failures to deliver new prisons on time and on budget have had a damaging impact on prison overcrowding. We urgently need an update on the plans for the prison estate expansion. The Scottish Government is now saying that the way to alleviate the problem is to use powers that it said it never wanted to use and which would be used only in an emergency. It wants to release prisoners who are serving sentences of less than four years.

It is crucial to ensure that individuals who are released from prison do not pose a risk to the public so, if the Government is to go down that path, it must ensure that it is done in a way whereby public safety is not put at risk. Caution must be taken and safety checks must be carried out. This is not the time for the SNP to further its soft-touch approach to justice. The cabinet secretary must be clear with the public about which crimes those criminals were convicted for and how many criminals will be released early. Most important of all, can the cabinet secretary give us her guarantee that at no time will the public be put at risk by the measures?

I thank Ms Dowey for her important questions. It is with great respect that I say that a prison population of 8,348 does not smack of soft justice, nor does it smack of smart justice. All of us in the Parliament needs to ditch our rhetoric, roll up our sleeves and do what is in the best interests of our communities.

Make no mistake about it: what happens in our prisons matters. Our prison system is not the end of the line—most prisoners are released. If our prison officers and staff cannot undertake important rehabilitative work or healthcare work, all that happens is that people are released and risk increases in our communities. At the end of the day, I know that we all want to have less crime, fewer victims and safer communities, but, because we are in a crisis, a critical risk exists and we must focus on the solutions that are needed now.

Ms Dowey spoke very powerfully about the plight of prison officers. I have known and worked with many prison officers. Right now, they need to know that we stand behind them. Every day that they go in to work, they put themselves on the line for us and the communities that we all seek to serve. They need to know that we are with them and that help is on the way.

Absolutely nothing is more dear to me than public safety, Ms Dowey. I am sure that she is aware of the safeguards that exist on emergency release and that some people will be automatically excluded. The veto that governors will have provides further reassurance, in that he or she can exclude anyone that they believe poses a risk to an individual or, indeed, a group of individuals.

Ms Dowey is right: doing this in a planned, orderly way is imperative. Unlike other Governments, no one will ever be in a position in which they have to drag information out of me. I am being candid and upfront, and I am not sugarcoating anything. I will work collaboratively—we will all need courage—and members have my absolute commitment to leadership on the issue. I will work with all members to support our communities and our prison service.

I welcome the cabinet secretary’s statement and the approach that she has taken in trying to consult other political parties. Scottish Labour has been concerned about the steep rise in prison populations for some time now. Can the cabinet secretary advise how many prisoners the Government plans to release early and what advice is she receiving on that? Can she guarantee that no violent offenders will be released? Can she also advise what other measures are being considered?

In particular, the cabinet secretary will be aware that Scottish Labour has been calling for the modernisation of electronic monitoring systems, including the use of general packet radio service systems. Can she advise what work is being undertaken to progress better electronic monitoring systems and, indeed, to ensure that there is full compliance when those systems are ordered, given that that has, as we know, been an issue in the past?

I appreciate Ms Clark’s contribution to the debate, and she has raised an important point. Although we all understand the well-known drivers that have contributed to the long-term growth in our prison population—indeed, I have published a paper this afternoon that narrates that—the increase of 400 additional prisoners in such a short space of time is unprecedented and was not predicted. It is difficult to get underneath the skin of sudden spikes in the prison population. That does not mean that we will stop investigating it, but that work cannot take place at the expense of what we need to do and the actions that we need to take.

As for the member’s question about how many prisoners the Government plans to release under the emergency powers, prisoners serving sentences for sexual offences and domestic violence will not be released. There are other statutory exclusions in the brief that has been published.

On her final point, the modernisation of GPS is important. She might recall from my previous statement to Parliament that we will look at piloting the GPS technology in conjunction with the home detention curfew as part of our work to expand that as a reintegration tool.

I welcome the cabinet secretary’s statement. The Covid-19 pandemic saw emergency measures to facilitate the early release of prisoners across Scotland, with public and other local services coming together to manage a multi-agency reintegration and resettlement response. Will the cabinet secretary provide assurance that a similarly co-ordinated and managed approach will be taken and that the process will be closely monitored to ensure that it is as seamless and robust as possible?

It is important that we learn the lessons of what worked well during the pandemic, as well as those of what worked less well. We must have a laser-like focus on co-ordination between national and local government—for example, on health, housing, drug and alcohol services, benefits and social work—as well as with third sector groups, and that co-ordination and communication work will continue throughout the planning and operation of any emergency release process.

We will learn the lessons of what worked well, and we will keep a keen eye on where improvements can and must be made. This is a time for us all to pull together; after all, there is no monopoly on wisdom on this.

I begin by accepting the cabinet secretary’s offer of a meeting to discuss Scotland’s prison crisis. It absolutely is a crisis, with severe overcrowding, rampant drug use, no proper rehabilitation and organised crime gangs targeting prison officers in brazen attacks.

As well as freeing up to 500 prisoners early, the cabinet secretary tells us that she is considering another significant measure, which is to bring back the automatic early release of long-term prisoners—that is, those serving more than four years. That is despite a previous pledge from one of the previous First Ministers to scrap it for shorter sentences. This Government is entirely responsible for Scotland’s prisons and has been since 2007. I heard the earlier comments about being candid, so in that spirit, if automatic early release is a foregone conclusion, is the cabinet secretary not better just to tell members that?

I have fairly well-known views on the importance of properly supporting and reintegrating people who are released from prison, particularly those with very complex needs, either as a result of their risks and vulnerabilities or because of drug, alcohol or mental health problems. As a former prison social worker, I take the view that, if we are going to take a more individualised approach to that, some people will need more than six months on a community licence at the end of a long sentence.

I hope that Mr Findlay acknowledges that the tone and tenor of my statement is, first and foremost, about giving the Parliament its place. I will bring forward a consultation, which will take place over the summer. I am being candid—I do not want us to be in a cycle of one episode of emergency release after another. We have to look at solutions that will address the prison population problem in the longer term, as well as other impacts. I am utterly committed to doing so, whether it means improving the alternatives to remand or building confidence in and developing the profile and number of community disposals.

Right now, we need to take quick action, and I have laid out to the Parliament the three actions that I am seeking parliamentary consent for. My views are known—I now want to give the Parliament its place.

I note that the prison population has risen by 10 per cent since the Bail and Release from Custody (Scotland) Bill was passed exactly a year ago, providing powers over emergency release. During that time—and today in her statement—the cabinet secretary has said that she would not use those powers unless absolutely necessary. What other actions has she taken or considered ahead of using them?

It is almost exactly a year to the day since we were engaged in the stage 2 proceedings on the Bail and Release from Custody (Scotland) Bill, when I was the newly appointed Cabinet Secretary for Justice and Home Affairs. One of the issues that we were debating concerned the powers in and around emergency release.

In the year that has followed, our prison population has went up by 700, and that speaks for itself. As Ms Mackay has said, we have taken a number of other actions. I will not list them all, but we are optimising the use of the home detention curfew—the numbers of those released on that mechanism have increased—and we have taken action to address the use of remand by introducing electronically monitored bail, expanding bail supervision and enabling courts to take electronically monitored bail into account in sentencing.

Those measures are all important, but we need to do more now, and do it quicker.

How can Scotland, in the long run, repair its reputation with regard to holding prisoners in humane conditions? Severe overcrowding is impacting on rehabilitation, which is absolutely necessary in reducing offending, and, worryingly, time out of cells is, as the cabinet secretary said in her statement, impacting on access to services. That last point concerns me the most, and I wonder whether she can elaborate on it.

Moreover, will all victims be properly notified of early release cases? How will that be done? Can it be done in enough time to give victims reassurance that there is no risk to their personal safety?

I, too, share concerns about healthcare for prisoners. My work in that regard started when I was Minister for Drugs Policy, working on access to recovery and the implementation of the medication-assisted treatment standards. With Keith Brown, my predecessor in my current post, I established the cross-portfolio ministerial group on prison health and social care.

I know that members might groan at the idea of yet another committee. However, as someone who has been involved in a fair few committees, I want to convey to Parliament that justice and health ministers are working together to such a degree that we are absolutely engaged in one another’s portfolios and on the detail of what we need to do to meet the needs of people with mental health problems; to improve treatment for drug and alcohol dependency; to recruit band 5 nurses; and to make the improvements to technology required to improve clinical treatment. A wealth of work is going on in that area.

Nonetheless, I acknowledge that having more people in prison jeopardises all of that good work. We have to address the rise in our prison population, and we must do so in a way that reduces the numbers faster. I take no pleasure in saying that.

On the point about the existing victim notification and victim information schemes, we have planned improvements in that regard and will respond to the independent review of those schemes. I want to ensure that, as well as engaging with parliamentarians, I engage face to face with victims organisations, so that we have in place detailed and exact planning to enable us to move forward with the confidence that we need.

I make a plea at this stage for more succinct questions and answers, as there are still a number of members who would like to pose their questions to the cabinet secretary.

I, too, welcome the statement and the measures to keep our prisons safe.

What additional supports will be provided to community justice services to support those leaving prison, and what role will those services play?

I know that Fulton MacGregor is a former criminal justice social worker, as I am, and he will be under no illusions that any measures that we take—either in and around emergency release or, in particular, if the Parliament agrees to alter the release arrangements for long-term prisoners—will have an impact on criminal justice social work. As well as engaging with the Convention of Scottish Local Authorities, housing and victims organisations, we will continue to engage with Social Work Scotland, because we need to work with all of those agencies.

I recognise that, although the release of those particular prisoners is not unanticipated, an emergency release will take place quicker for those considered appropriate, which will place additional demands on local services and will require them to be flexible and responsive. I am pleased to advise Parliament of a commitment from my Cabinet colleagues to working across Government on delivering the necessary community planning.

Again, I will need more succinct answers.

The Lancet recently published research that showed that the chances of a former prisoner dying were highest in the week immediately after release, compared with subsequent months. Alcohol and drug-related deaths, followed by suicide, were the main causes of death in the first week post release. What assurances can the cabinet secretary give that, with the measures that she has outlined, appropriate and sufficient resources and support will be available from public and third sector agencies to former prisoners and the communities that receive them, especially in the days and weeks immediately after release?

As I am conscious of not incurring your wrath, Presiding Officer, I will just quickly say to Ms Chapman that she has highlighted a risk time—indeed, any risk will be greater at the time of transition—and that the answer to that issue is planning, planning, planning and planning.

I apologise to the chamber, as I will have to leave the chamber after I have asked my question, and I am grateful to the Presiding Officer for being so accommodating in allowing me to do so.

I am pleased to hear the cabinet secretary say that public safety is a priority. What measures can she provide on the safeguards that will be put in place before anyone is released early?

I have already spoken in detail about the planning that will commence. I realise that it is happening in anticipation of Parliament’s approval but, nonetheless, we will have to start it. I have also talked about the automatic statutory exclusions and the governor veto, with which they can refuse to release an otherwise eligible prisoner if they consider that they would pose an immediate risk or harm to a specific individual or group of individuals if released.

Ms Dunbar quoted the chief inspector of prisons, who rightly challenged the Government to have the courage to communicate with people that the instability in our prisons will have an impact on community safety. It is in the profound interests of community safety that we take action.

Like Katy Clark, I welcome the early and constructive engagement that the cabinet secretary has had with Opposition members.

Prisons have been teetering on the edge for months, if not years, with many routinely running over capacity. At the heart of that issue, at least in part, is the soaring remand population, which is a matter that I have raised with the cabinet secretary many times.

In light of the measures that the cabinet secretary has set out on early release of some offenders and the fact that one third of people on remand have been held in prison for more than 140 days, does she understand why the public might be anxious about releasing convicted criminals early while holding people in prison who have yet to come to trial, and on such a scale? What more can the Government do to encourage an increased uptake of non-custodial disposals?

That is a crucial point. It is to my great frustration that, as our sentenced population has increased, the remand population has increased, too. Normally, the remand population goes down as the sentenced population goes up. However, on any given day, our remand population sits at 1,800-plus, so we will absolutely continue to pursue work on the alternatives to remand.

I take very seriously Liam McArthur’s point. As I understand it, the legal status of remand prisoners prohibits their emergency release, but I will go back and have a look at the matter.

With the United Kingdom nations having the highest levels of prison populations in Europe, what further actions need to be taken to get the proper balance of community justice and imprisonment?

Investing, as we are, in community justice is absolutely core to our overall response. We need to follow the evidence, which tells us that the reconviction rate for someone on a robust community payback order is much lower than it is for someone who has served a short-term sentence. Therefore, we need to continue to raise the profile of and provide investment in and support for community justice services. Notwithstanding the importance of that work, which will help us in the longer term, we face an immediate challenge right now.

I can squeeze in Brian Whittle, if I can have a succinct question and a succinct answer.

As always, Deputy Presiding Officer.

The cabinet secretary has stated that the cause of the sudden increase is unclear and that the Scottish Prison Service’s ability to deliver rehabilitative regimes has been severely curtailed. How many of the new prisoners in the recent spike are repeat offenders? What action will she take to ensure that hundreds of prisoners, who might now be released early, do not fall back into reoffending and return to prison?

For the sake of brevity, I will say that there is well-established and published research speaking to the reconviction rates of particular types of prisoners, and there is also research that speaks to the reconviction rates of short-term, long-term and life-sentence prisoners. I will not infuriate the Presiding Officer any further by repeating that information at length.

Understanding the spikes is important, but we also have to understand that spikes in population are hard to predict. That means that we need to act, and we need to act now.

That concludes the ministerial statement on Scotland’s prison population. Before we move on to the next item of business, there will be a short pause to allow the front-bench teams to change positions.