The next item of business is stage 3 proceedings on the Prisoners (Early Release) (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2—that is, Scottish Parliament bill 53A—the marshalled list and the groupings of amendments.
The division bell will sound and proceedings will be suspended for around five minutes for the first division of stage 3. The period of voting for the first division will be 45 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons, or enter RTS in the chat, as soon as possible after I call the group. Members should now refer to the marshalled list of amendments.
Section 3—Power to modify timing of automatic early release
Group 1 is on the power to make determinations in relation to persons transferred to Scotland. Amendment 1, in the name of the cabinet secretary, is grouped with amendment 4.
I gave members notice of these amendments when I spoke to the amendments in group 2 at stage 2.
Amendments 1 and 4 are technical amendments to ensure that, in the event of a prisoner who is serving a sentence outwith the United Kingdom being transferred to a Scottish prison to serve the remainder of a short-term sentence, and when that sentence is for the equivalent of a sexual or domestic abuse offence, the prisoner will definitely be excluded from the change in the release point and will instead continue to be released at the halfway point in their sentence.
Such transfers are uncommon: there are currently no prisoners in custody in Scotland who fall into that category. However, I have been clear throughout the bill process that the changes that are made should not apply to those who are serving sentences for sexual offences or for domestic abuse. Amendments 1 and 4 will ensure that the bill captures every case to which those exclusions should apply.
Amendments 1 and 4 will allow the Scottish ministers to determine that any prisoner who is serving a sentence for a sexual offence or a domestic abuse offence and is transferred to Scotland from abroad will be treated, for the purposes of release, as though that offence was committed in Scotland. That determination will be carried out as part of the transfer process and will be based on information received about the facts and circumstances of the case.
The amendments include a narrow regulation-making power to enable further changes to be made, subject to Parliament’s approval, to ensure that the solution operates correctly within existing processes and is consistent with all relevant legislation.
It should be noted that amendments 1 and 4 concern prisoners who are transferred from outside the UK. Different legislation applies to prisoners who are transferred to Scotland from other parts of the UK, who would be transferred on the basis that their release is determined by the law of the part of the UK that sentenced them. As a result, no provision needs to be made in relation to those prisoners.
I again emphasise that it is not expected that the issue with regard to prisoners who are transferred from abroad will arise often. In fact, it is not relevant to anyone who is currently in custody in Scotland. However, it is important that we ensure that the provisions of the bill apply as intended and that we future proof the bill to encompass all foreseeable circumstances. I therefore urge members to support amendments 1 and 4, which ensure consistency across the bill.
I move amendment 1.
As no further requests to speak have been made, I invite the cabinet secretary to wind up.
I have wound up.
Amendment 1 agreed to.
Group 2 is titled “Statement in connection with the power to change release point”. Amendment 2, in the name of Sharon Dowey, is grouped with amendment 2A.
As I said earlier, I was disappointed that the Government did not support my amendments at stage 2. However, I am pleased that the Government has worked with me on this amendment and with Pauline McNeill on amendment 2A, which Conservative members will also support.
Amendment 2 will require that, if ministers make any changes to the regulations, they must make an oral statement to Parliament setting out the reasons for those changes. I am grateful to the minister for working with me.
I move amendment 2.
I call Pauline McNeill to move amendment 2A and to speak to both amendments in the group.
Amendment 2A amends Sharon Dowey’s amendment 2 by adding that the Scottish ministers’ statement to Parliament must say
“what information will be available to victims about the change that the draft regulations would make (if approved) and the release of prisoners under the provisions amended by the regulations”.
I said at stage 2 that we wanted more information to satisfy the public, and victims, about the changes and about the impact that those will have on communities. I recognise that the Government has been prepared to work with me and with Sharon Dowey.
I move amendment 2A.
I am pleased that Parliament approved Maggie Chapman’s amendment 21 at stage 2. That amendment requires the Scottish ministers to consult organisations providing support to victims, as well as key delivery partners, before regulations changing the release point can be made.
I said at stage 2 that I was willing to work with members to see what more could be done to ensure that the Parliament is updated about any proposed regulations under the power.
I support amendment 2 and amendment 2A. Taken together, they will require the Scottish ministers to seek to make an oral statement to the Parliament on laying the regulations that sets out the reasons for making the regulations, the consultation that has been undertaken and the information that will be available to victims about the changes that will be made, if approved. Although we would have always intended to keep the Parliament updated, that is an appropriate and proportionate approach, which will provide further reassurance on that point. I thank Sharon Dowey and Pauline McNeill for the constructive discussions that we had about how we might further strengthen the process for making regulations under the powers in the bill. I urge members to support amendment 2 and amendment 2A.
I call Sharon Dowey to wind up on amendment 2.
I have nothing to say in winding up.
I call Pauline McNeill to wind up and indicate whether she wishes to press or withdraw amendment 2A.
I will press amendment 2A.
Amendment 2A agreed to.
I call Sharon Dowey to press or withdraw amendment 2, as amended.
I will press amendment 2, as amended.
Amendment 2, as amended, agreed to.
Group 3 is titled “Removal of new power to change release point”. Amendment 3 is the only amendment in the group.
I do not intend to entertain—if that is the right word—members with regard to this amendment for any undue length of time, save to say that the Parliament exists as a single chamber that relies at times on either a committee or, indeed, this chamber to act as the second voice, to point out errors and omissions, and decisions that are taken here that might lead to unknown circumstances further down the line.
At stage 2, the challenge of dealing with long-term prisoners in the bill was articulated, and I do not need to add to that. I merely wish to give the cabinet secretary the opportunity to think again on the matter, given the unicameral nature of the Parliament.
I move amendment 3.
I rise to speak in support of amendment 3. There is little that I can add to my earlier remarks or to the sage analysis of Martin Whitfield of this unicameral Parliament and the importance of the process. All that I will reiterate is that, as it stands, section 3 does not serve the same purpose as the rest of the bill. What it does is reduce scrutiny—previously, a year was required by the Parliament to consider a similar provision.
In the circumstances in which we find ourselves today, the Government having only recently conducted a shortened consultation on similar proposals that were withdrawn in the face of the evidence, the bill looks less like prudent legislating and more like opportunism. The point that Martin Whitfield has made is so important that the Opposition has raised the issue at every opportunity during the process, to assist the Government in producing a competent bill. For that reason, I support amendment 3, in the name of Martin Whitfield.
I concur with the comments from Martin Whitfield and Liam Kerr. In the stage 1 debate, on Thursday last week, I made the same points as they have made. Although I accept the urgency of the situation and therefore the need for emergency legislation, what concerns me most is the far-reaching and wide-ranging powers that are being taken under section 3. For me and for my party, it is a step too far in the legislation. As Martin Whitfield has just done, I ask the cabinet secretary to think again, even at this late stage, and to support the amendment that Martin Whitfield has lodged.
I acknowledge the strength of feeling and the views that have been expressed by some members. I have already set out the reasons why I believe that it is necessary to update the current powers that Scottish ministers have to amend the point of release using subordinate legislation. The regulations would be subject to affirmative procedure, which means that they could not become law without being approved by a vote of the whole Parliament. That would also provide opportunity for committee scrutiny.
20:00As I made clear, we do not plan to make any change to long-term prisoner release until detailed work has been carried out to ensure that those who are released can be safely managed in the community.
There was support in principle among justice agencies. However, there was acknowledgement from those who have been consulted—and, indeed, from me—that there is merit in further exploration. The powers will not be used until all issues are resolved.
I have supported amendments that will guarantee that consultation is carried out and that Parliament is kept updated, in order to inform full scrutiny.
I know that not all members agree on the way forward, but, in the context of a high prison population, we need to ensure that a wide range of options is available. I consider it of vital importance that that power is now restored.
I call Martin Whitfield to wind up and to press or withdraw amendment 3.
I am disappointed that, even at this late stage, the Government has not taken the opportunity to think again on something that does not directly relate to the overcrowding or the urgency with which the bill has been presented to the chamber. However, I sense the view of the Government and, although I do not agree with it, I appreciate it. Therefore, I seek leave to withdraw amendment 3.
Amendment 3, by agreement, withdrawn.
After section 3
Amendment 4 moved—[Angela Constance]—and agreed to.
After section 4
We move to group 4: reporting on operation of act. Amendment 5, in the name of Jamie Greene, is the only amendment in the group.
I thank everyone who has helped us get through this evening, particularly our office staff and the Parliament’s legislation team, who have worked tirelessly. We owe them a huge amount of gratitude given the circumstances that we have put them in—and particularly for allowing me to submit a late amendment at stage 3.
I have been asked to keep my comments brief because Brian Whittle is desperate to get to the gym. He told me that on the way in, but I am not sure that I believe it.
Amendment 5 is on reporting on the operation of the act. I gave some hints that I might submit something of this nature, and I will explain quickly what the amendment does. It requires Scottish ministers, as soon as possible after two years of the changes being in force, to produce a report on the operation of the act and what effect it has had on the prison population, which is a point that I raised in earlier stages.
Importantly, amendment 5 also requires ministers to publish the number of individuals who have been released in each release period, breaking down that number by the offence for which they were detained in the first place. Arguably, that requirement could or should have been in the bill in the first place, but it provides any future Parliament with the bare minimum that is required to scrutinise the legislation in some way. It provides a mechanism to do so.
I should also be clear about what the amendment does not do. It is not a sunset clause, which many of us would like to have seen in the bill. It is not indicative of any analysis of harm that the bill might do to public safety. It will do nothing to analyse offenders’ rehabilitation, or the effect that the bill will have on victims of crime and, importantly, on reoffending rates, which is an issue that has been raised repeatedly. Amendment 5 is not quite enough and it does not give any future Parliament the ability to revoke the measures in the bill.
Those are all things that we would like to have seen. With more time, we could perhaps have compromised further with the Government on them. However, we are where we are, and amendment 5 is the best that we could do in the circumstances.
The amendment will, interestingly, take us into the next parliamentary session with, perhaps, a new Government and a new Parliament. Might I make a suggestion to that future Parliament? Some of us who are here today will form part of that Parliament and some of us will not, but I make this plea. The bill has shone a light on the fact that somebody, somewhere needs to do a full, end-to-end piece of work on sentencing in Scotland as a means of both punishment and rehabilitation. In future debates, we might find that there is much common ground on how we tackle our prison population, how we deal with reoffending and how we keep people out of prison in the first place.
We need to stop tinkering with sentencing in the way that we are doing today, with the endless eroding and erasing of the meaning and efficacy of sentencing. The Government seems to be embroiled in a never-ending task of putting out fires without being able to identify their root causes, and that has to stop. It is not how we make good law. I want us to have a justice system that we can all be proud of and, importantly, one that meets the test of proportionality and fairness in the eyes of the public. I urge members to vote for my amendment 5.
I move amendment 5.
I join Jamie Greene and the Parliament in commending our staff, the legislation team and all those who have made this emergency legislation possible.
I have been slightly frustrated by the rushed nature of the process, because I had intended to add my name in support of the amendment. I also intended to raise the question that Victim Support Scotland asked us to raise, which was about the insertion of information about the use of the policy and the number of offenders who are released. Due to the rushed process, I was unable to do that. Despite that, however, I support amendment 5.
Like Jamie Greene, we considered that a sunset clause would be appropriate in the case of this bill because, as was said at stage 2, a crisis is a short-term issue, but this is permanent regulation. We do not know when or if it will ever come to an end, so a sunset clause would have been appropriate. However, the amendment at least allows a future Parliament to reflect on whether the policy has achieved its aims and to analyse the information that the amendment requires. I welcome that.
As Jamie Greene said, it is important that a future Parliament has a close look at the legislation to see whether it has achieved its aims, and that it looks at the analysis of which prisoners have been released and what offences they committed, so that a future Government can decide whether to revert to the policy of early release at the 50 per cent point.
I advise Mr Greene that I hope to advise Parliament in the not-too-distant future with respect to the independent review of sentencing and penal policy that I advised Parliament last year that I intended to commission.
I, of course, acknowledge some of the frustrations that Pauline McNeill has articulated, and I have absolutely no doubt that we will return to many of these issues in the weeks and months ahead. The bill is one step, but it is certainly not the final step.
I recognise the Parliament’s important role in scrutinising the impact of the bill and the significant public interest in the impact of a change to the release point for short-term prisoners. I therefore support Jamie Greene’s amendment 5, which will require Scottish ministers to lay a report before the Scottish Parliament as soon as is reasonably practicable two years after commencement. That supports our commitment to actively review the need for the changed release point as well as, more generally, the impact of the change.
The amendment will require the Scottish Government to include specific information in the report, including the prison population throughout the review period and, for the initial tranches of release, a breakdown of the offences for which prisoners were detained and the number of prisoners who have been released in each local authority and health board area.
In relation to reporting on those released in the initial tranches immediately following commencement, I agree that it is important to closely monitor the impact of those releases, which is why I am also committing to separately publishing information within two months of the end of the last tranche. That information will include how many victims were notified of release, reflecting the information that was published following emergency early release in the summer. As I have previously said, following the initial tranches of release, releases will be managed in the normal way through business-as-usual processes.
I consider that reporting requirement to be proportionate in keeping the impact of the change under review and in giving Parliament the opportunity to scrutinise the effectiveness of that change. If required, secondary legislation could then be used to make further changes to the release point, depending on the contents of the report.
I call Jamie Greene to wind up and press or withdraw amendment 5.
I thank Pauline McNeill for adding at least her verbal, if not written, support to the amendment. I share her frustrations; my office was working closely with Victim Support Scotland late into the evening, trying our best to amend the bill at this late stage. Amendment 5 was lodged 90 seconds before the deadline—we simply ran out of time. I therefore apologise directly to Victim Support Scotland. We will do our best to listen to its concerns, and I hope that the cabinet secretary will do the same in her engagement with stakeholders on the bill.
Perhaps I can end on a point of consensus with the cabinet secretary. She talked about the huge public interest in the bill—and she is absolutely right. There is huge public interest in what we are doing, and that should remain at the forefront of our minds when we vote this evening. However, I will say more about that in my closing speech.
I am happy to press amendment 5.
Amendment 5 agreed to.
That ends the consideration of amendments.
As members will be aware, I am, at this point, required under standing orders to decide whether, in my view, any provision of the bill relates to a protected subject matter—that is, whether it modifies the electoral system and franchise for Scottish parliamentary elections. In my view, no provision of the Prisoners (Early Release) (Scotland) Bill relates to a protected subject matter. Therefore, the bill does not require a supermajority to be passed at stage 3.
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