Chamber and committees

Section 10 requires the Scottish ministers to establish throughcare standards for remand and sentenced prisoners. I welcome the committee’s support for those provisions.

I recognise that, in order for the standards to be as effective as possible, they need to be informed by a range of views. That is why section 10 includes a list of bodies that the Scottish ministers must consult when preparing, reviewing and revising the standards. The amendments that I have lodged seek to extend that list.

Amendment 14 adds the Risk Management Authority in recognition of the valuable insight that it will have in ensuring that the standards sufficiently manage risk and are informed by best practice. Amendment 15 adds the Care Inspectorate, reflecting its role in the scrutiny and assurance of community justice and justice social work.

Amendment 17 requires there to be consultation with groups that focus on providing support to children, young people and families who are impacted by imprisonment, which will allow the voice of children and families to shape the standards and their specific needs to be considered. Amendment 16 is a technical amendment to allow the list to be expanded.

Amendments 18 to 20 expand the list of statutory consultees to include victim support organisations, allowing the standards to be reflective of victims’ needs and ensuring that they continue to centre on victim safety. I have lodged the amendments in direct response to calls made to the committee, including by victim support organisations.

Amendments 18 and 19 define victim support organisations in line with section 11 of the bill, and amendment 20 allows the Scottish ministers to amend part of the definition, subject to the affirmative procedure, again in line with section 11. I ask the committee to support those Government amendments.

I turn to Katy Clark’s amendments. Amendment 43 would require the Scottish ministers to consult victims of crime and victim support organisations on the preparation, review and revision of the standards. I agree that consultation with VSOs on the standards is critical, which is why I lodged amendments 18 to 20.

However, I cannot support Katy Clark’s amendment 43, for a couple of reasons. First, the definition of victim support organisations that is provided in the amendment is not consistent with the definition that is used elsewhere in the bill. The Government’s definition of victim support services goes further and encompasses organisations that provide services that are intended to benefit the health and wellbeing of victims and those that provide support for safety planning and making representations regarding prisoner release. My amendments provide the ability for ministers to amend the definition of victim support services, but amendment 43 does not do that.

Secondly, amendment 43 would require the Scottish ministers to directly consult victims on the development of the standards. I agree that it is critical that the standards are informed by the experiences of victims of crime, but it is also important that victims are consulted in a trauma-informed and supported way. My view is that that is best done via victim support organisations.

For those reasons, I cannot support amendment 43. However, I argue that my amendments 18 to 20 will achieve the same aim. I ask Katy Clark not to move amendment 43.

It appears that amendment 42 is intended to require the Scottish ministers to carry out a public consultation on the throughcare standards. I support the principle of the amendment, but, as drafted, I do not believe that it will deliver its intended purpose.

Proposed new section 34B(4) of the 2016 act already contains a duty to carry out a public consultation when preparing, reviewing and revising the standards. The throughcare standards will undergo extensive consultation, and during that period the Scottish ministers must consult a wide range of people, bodies and organisations.

In addition, the Scottish ministers may consult anyone else they consider appropriate, so Ms Clark’s amendment would have little or no effect on the current requirement in the bill to consult when the standards are prepared, reviewed and revised under section 34B(4) of the 2016 act.

However, I recognise that there is wider public interest in this area and that the Government should be open to hearing the views of communities that are impacted by throughcare. Therefore, I commit to lodging an amendment at stage 3 that would require the Scottish ministers to undertake a formal public consultation on the draft standards following the consultation and development with the listed partners. I ask Ms Clark not to press amendment 42.

Amendment 44 would require ministers to take steps to ensure that individuals who are remanded in custody can receive throughcare support and access to activities and opportunities from the start of their period in custody. I agree that it is important that remand prisoners have access to support on release. That is why both the pre-release planning duty and the throughcare standards that are provided for in the bill also cover remand prisoners.

However, I am not clear what practical effect amendment 44 would have. Remand prisoners can already access throughcare support from their local authority on a voluntary basis under the Criminal Justice (Scotland) Act 2003. The third sector throughcare services already offer support to women and young people released from remand. I recognise that that does not include men released from remand. That is something that we are considering. That would have resource implications, but it would not require legislation.

If the intention behind amendment 44 is to go further by mandating that every remand prisoner engage in throughcare support, there would be legal issues with that. It is fundamental that engagement with throughcare support is voluntary. Unless someone has been sentenced and that sentence includes supervision requirements, they cannot be forced to engage with any form of follow-on support after they are released from custody.

Prison rules do not exclude remand prisoners from work or purposeful activity, and the Prison Service will, where possible, offer access to work and educational opportunities to those on remand. Therefore, I would argue that amendment 44 would not add to current practice, so I ask Ms Clark not to move it.

First, convener, I put on record my sympathy for the Geddes family. I support the underlying intention of the amendment, which appears to be to ensure that people leaving custody are able to access support for mental health problems, should they need it.

I recognise that amendment 100 stems from a recent Mental Welfare Commission for Scotland report into the case that Mr Lumsden has raised concerns about, consistently and compassionately, for some considerable time.

The Scottish Government is carefully considering that report and the recommendations in it, and we will respond formally in the coming weeks. The Government must provide a response in full. That will be led by health ministers, but I can assure Mr Lumsden that I have a particular interest in that report. I do not want to pre-empt the content of the Government’s response, so I will not go into detail on the various recommendations, but it will highlight the particular difficulties that can arise when an individual has been released directly from remand by the court, especially in circumstances where that outcome was not anticipated. I recognise that issue and I know that the committee has considered it during its scrutiny of the bill.

We consulted on the provision for support for people released directly from court when drafting the bill. However, it was not clear that a legislative solution was the best approach. That is not to say that nothing can be done. I intend to work with stakeholders to identify policy and operational solutions before stage 3. I am doing so at the request of the convener, in her capacity as an individual MSP.

As we have discussed, the bill aims to foster a more effective, multi-agency approach to release planning. It will strengthen the role and responsibility for a range of public services to engage in pre-release planning. It will require Scottish ministers to establish statutory standards for throughcare for the first time. That covers both remand and sentenced prisoners.

However, the amendment, for understandable reasons, goes beyond the prison release process, and it would have a significant and lasting impact on mental health approaches as well as having resource implications.

Although it would not be appropriate to try to implement such a change in the context of this legislation, given that there has been no prior consideration or discussion of the issue, the matter is nonetheless significant and requires further consideration. However, we have to do that in all appropriate forums. I appreciate the member’s very close interest in the issue, and it might therefore be helpful to discuss the details of the Mental Welfare Commission for Scotland’s report separately with him.

The question of whether legislation is needed is a legitimate one, but, as I have said, I am happy to discuss the issue further with Mr Lumsden. Indeed, if he is willing to have a discussion with me in the context of this bill, I think that it will be useful to include in that discussion the health ministers, who will have the responsibility of responding, in the not-too-distant future, to all the Mental Welfare Commission for Scotland’s recommendations. There is an absolute need to discuss how we better support people direct from court. My fundamental question, though, is whether all the solution lies in this legislation.

Coming back to the matters before the committee, I have some concerns about the unintended consequences of amendment 100, which I would like to explain. The amendment seeks to place a duty on Scottish ministers to establish a post-custody outreach service for individuals released from custody, either from remand or sentence, who have previously been “detained in hospital”. I want to detail some of my concerns about the amendment, but, before I do so, I want to say that that does not mean that such an outreach service would have no merit.

From the drafting of the amendment, I am assuming that the reference to “detained in hospital” means “detained under mental health legislation”, but the amendment does not specify that. Moreover, under the amendment, that detention could have taken place at any time; indeed, it could have happened years or even decades before the individual’s release from prison, and it could have been for a reason completely separate to the reason for their being in prison—for example, for suicidal ideation or concerns about self-harm.

The amendment also requires that the proposed outreach service provide a “point of contact” for these individuals on release and then “regular contact” for a year following liberation. However, it does not specify what that contact should entail and whether the service would provide mental health support, wider social support or supervision, making it very difficult to determine the service’s purpose and potential impact. That is why I think that the amendment raises a much broader issue than that covered in this legislation, although I understand why Mr Lumsden is pursuing this course of action.

I should also say that it is not clear whether such contact would be compulsory or voluntary. That is an important point of detail, because, as I am sure Mr Lumsden will be aware, compulsory treatment is allowed only in very strict circumstances, and it is not clear how the service proposed in the amendment would fit into the wider mental health landscape.

I very much recognise the importance of holistic and well-planned support for people leaving prison; indeed, it is one of the bill’s underlying purposes and why the Government already funds local authorities and third sector organisations to deliver throughcare. In addition to my specific concerns about the scope of the amendment, I am not clear how such a service would fit into the existing landscape of support for prison leavers, particularly where it would overlap with existing services.

For that reason, I cannot support amendment 100 or the associated technical amendment 101, and I ask Mr Lumsden not to press amendment 100 or move amendment 101.

Although I resist those amendments, I am not for one moment rejecting the issues that Mr Lumsden has raised, which is why I will be happy to meet him, along with other ministers, in addition to the engagement with stakeholders to which I committed in my interactions with the convener, to see how we can move the situation forward in ways that will have a direct impact on practice and on the front line.

I understand that there is no bar on remand prisoners participating in purposeful, helpful activity. As Ms Clark outlined in her remarks, depending on the anticipated period of someone’s custodial sentence, they might not be able to take part in longer-term interventions, or priority might be given to longer-term or sentenced prisoners.

Amendment 3, which was also lodged by Ms Clark, would place a duty on the Scottish ministers to publish a report on the impact of the throughcare standards on partners, including in relation to resource implications and whether “adequate resources” were available to support implementation.

I am clear that resourcing is a critical consideration in the delivery of successful throughcare. That is why we fund local authorities and third sector organisations to deliver throughcare services. There is a risk that amendment 3, as drafted, would place further administrative burdens on partners to provide evidence of whether their resources were “adequate”. That is likely, understandably, to look very different across all local areas.

Furthermore, it should be noted that amendment 3 would require the Scottish ministers to publish the report within one year of the section being commenced. I draw members’ attention to the fact that the bill as drafted requires the standards to be developed within one year of commencement, so we could end up with partners being required to provide information on the impact of standards that had only just been published.

As I said in response to Russell Findlay’s amendment 71 in an earlier group, I am minded to lodge amendments at stage 3 that will encompass all the various asks for reviews into different sections of part 2 in order to provide a more coherent picture. That could include a review of the impact of throughcare standards. For that reason, I ask Ms Clark not to move amendment 3.

Thank you for giving way. I want to make it clear that Thursday would still be a release day for people who would have been released on a Friday, or if there is displacement from the weekend. We are going from five release days to four release days in the week, just for clarity.

The provisions are clear about who is excluded—I covered that in answer to Mr Greene. I am sure that the committee will have heard evidence on the issue from the Parole Board. Very often, when people come up for consideration for parole for the first time, there is just not enough evidence because they have not been tested enough—hence the logic behind testing some prisoners on a temporary release licence.

I will end my comments by stressing the importance of the statutory operating procedure. I give an assurance that I will pay particularly close attention to that. I am more than happy to have discussions with members to ensure that they are fully sighted on our thinking on the statutory operating procedure, because the scope of that is absolutely crucial. We will also have close engagement with victim support organisations on the statutory operating procedure.

Amendment 11 provides the Parole Board for Scotland with the power to reconsider its decision to release an individual on parole licence in certain circumstances. That directly responds to the points raised by the chair of the Parole Board, John Watt, when he gave evidence to the committee at stage 1. I am also aware that the committee called on the Scottish Government to find a solution to the issue in its stage 1 report.

Mr Watt expressed his concern that the Parole Board would not have the ability to review its decision to recommend the release on parole of a prisoner in the circumstance in which the board had directed that that individual be released on the new temporary release licence until their parole qualifying date and the temporary licence be subsequently revoked. In that scenario, the Parole Board would not have the power to review its original decision, and the individual would move to parole licence at their PQD.

Amendment 11 directly responds to that scenario and provides the Parole Board with the power to review its original decision to release on parole licence. The amendment goes further: it provides the Parole Board with the power to review its decision in relation to the release of prisoners under part 1 of the 1993 act generally. That power is applicable when new information is provided to the board between its decision to recommend release and the point of release and when that information is considered to have a significant bearing on the individual’s suitability for release.

In essence, amendment 11 gives the Parole Board the power to place a pause on the release of an individual in those circumstances, until it can consider the new information and decide whether to review the decision to release. As part of that review, the board could uphold the original decision to release, could uphold it but amend the licence conditions or could reverse the decision.

It is our view that amendment 11 provides an important additional safeguard. As it is intended to enable an independent review by the Parole Board, we have not set out any procedure for those reviews in the amendment. We will further consider whether any change to the Parole Board’s rules might be needed to support that as part of implementation in due course.

Katy Clark’s amendment 11A seeks to amend amendment 11 by removing references to the recall of long-term prisoners released by the Scottish ministers under proposed new section 3AB(1) of the 1993 act—that is, release of a long-term prisoner by the Scottish ministers under the temporary release power provided by section 7 of the bill.

As Katy Clark did not move her amendments to remove the Scottish ministers’ ability to release long-term prisoners on the temporary release licence provided by section 7, I urge her also not to move amendment 11A, which would remove an important safeguard and would result in an inconsistent approach to the review of recommendations by the Parole Board to release prisoners.

I move amendment 11.

I have nothing further to add.

I will begin by setting out why I think that section 8 is important.

Ensuring the security and good order of our prisons as well as the health and safety of prisoners and prison staff is absolutely critical, and it is a responsibility that I take extremely seriously. The emergency prisoner release power in the bill is intended to support that essential principle by providing a means of releasing groups of prisoners if the impact that an emergency situation is having, or is likely to have, puts the security of prisons or the safety or welfare of prisoners or prison staff at risk. That is not a power that I would ever hope to use, and that is not the reason for including it in the bill. It is in the bill because, as the pandemic showed us, we, as a Government and as a Parliament, have to be able to respond to the unpredictable. We must ensure, as far as we can, that the mechanisms are in place for us to respond immediately to emergencies when lives might be at risk. This is one of those mechanisms.

Unlike the United Kingdom Government, which has had such a power since the early 1980s, the Scottish ministers currently have no legal power to instruct early release in order to protect the security of prisons and the safety and welfare of prisoners and staff, other than specifically in response to Covid. As a result, without the provisions in section 8, we would be required to introduce emergency legislation if we needed to respond to an emergency situation in our prisons in order to protect lives—for example, in the event of a major fire in a prison.

I just want to pick up on some of the points that have been presented to Ms Mackay. First, to respond to a point that Pauline McNeill raised, further detail can be set out in the explanatory notes. Secondly, in terms of Ms Mackay’s amendments, it is with respect to people who have 180 days or less left to serve.