Chamber and committees

Will Mr Findlay outline what role victim support organisations should play in the delivery of a prisoner’s plan?

It is about delivery.

Clearly, it would be used in extremis—that is, in an emergency that had an immediate impact on, and threatened the safety and wellbeing of, staff and prisoners. I suppose that one example would be a major fire that had a major impact on a prison, resulting in its being unsafe.

We have to acknowledge that passing even emergency legislation would take time, and it would be time that we could not afford. The decision to include the power in the bill was not one that we took lightly, and we have included a number of safeguards that, I would highlight, do not exist in other jurisdictions. For example, there are statutory exclusions that prevent certain prisoners from being eligible for release under the emergency power, including those who are serving sentences for sexual offences or who have been convicted under the domestic abuse acts.

Furthermore, amendments 12 and 13, in my name, would extend the existing governor veto. Those amendments would enable the prison governor to veto the release of an individual under the emergency release power if they considered that the individual would pose an immediate risk of harm to

“an identified group of people”,

as well as to an identified individual, as provided for under the bill’s current drafting. That is in direct response to concerns raised by victim support organisations.

I have heard a number of times now that the provision is not necessary, as the powers already exist, but that is not correct. It is true that there is a comparable power under the 2022 act, but that is to be used only in relation to the impact of the coronavirus. Moreover, it is temporary, ending in 2025 at the latest. The release power under section 8 of the bill is designed to be used in an emergency situation that places at significant risk the security and good order of a prison or the health, safety and welfare of prisoners or prison staff.

I now turn to the rest of the amendments in the group. Amendments 90 to 92 and 94, in the name of Rona Mackay, would bring the early release provision in the bill in line with the comparable provision in the Coronavirus (Recovery and Reform) (Scotland) Act 2022 following changes made at stage 3 of the bill process, which responded to amendments lodged by Jamie Greene and Russell Findlay at stage 2 of that process. I agree that amendments 90 to 92 and 94 would strengthen the provision; therefore, the Scottish Government supports them.

Amendment 93, in the name of Jamie Greene, would remove the ability of the Scottish ministers to use the made affirmative procedure for the emergency release regulations. That would significantly impair the Government’s ability to take immediate, necessary and proportionate action to ensure the safety and security of prisons. For that reason, I cannot support it.

The Delegated Powers and Law Reform Committee rightly scrutinised the use of the made affirmative procedure in the bill, and the Scottish Government provided it with further detail to inform that scrutiny. I note that the DPLRC’s response to this committee on the delegated powers memorandum to the bill stated:

“The majority of the Committee is content with the explanation provided by the Scottish Government and accepts the power in principle. The majority of the Committee is also content that the exercise of the power will be subject to the affirmative procedure but may be subject to the made affirmative in specified circumstances and by reason of urgency.”

Therefore, I ask Mr Greene not to move amendment 93.

Amendment 38, in the name of Katy Clark, would entirely remove the Scottish ministers’ ability to direct the release of groups of prisoners in response to an emergency situation. That power is currently available to other jurisdictions in the UK, and it has been for some time. For the reasons that I have set out, I cannot support the amendment, which would remove the Scottish ministers’ ability to release groups of prisoners in response to the impact that the coronavirus has, or is likely to have, on the security and good order of prisons and the health and safety of prisoners and prison staff. Therefore, I ask Katy Clark not to move it.

Section 7 introduces a new temporary release licence for long-term prisoners. The bill does not name the licence, but the term “reintegration licence” is used in the supporting documentation, so I will use that term.

The reintegration licence is intended to operate in two circumstances. The first is in advance of the Parole Board’s consideration of a prisoner at the parole qualifying date or at a subsequent review if they are not released on the PQD. In that circumstance, the Scottish ministers would make the decision to release on the basis of risk assessment and consultation with the Parole Board.

The second circumstance is that release can be directed by the Parole Board when it has recommended that a prisoner be released on parole on the PQD. The board can direct that the prisoner be released on a reintegration licence in advance of that date.

The intention of the provision is to provide the opportunity to support the reintegration of certain long-term prisoners. For example, it will help them to link to community services and to build a relationship with their supervising officer.

In the circumstance in which Scottish ministers release an individual in advance of the Parole Board’s consideration of the case, release on the licence provides the opportunity for structured testing in the community. That will provide further evidence to the Parole Board to inform its decision making.

I will make a few points by way of intervention. I was forgetting that it is not me who will sum up for this group, so I have been sitting here taking notes.

To pick up your earlier point, in essence, the provision is about risk to life. If we had time to reconvene the Parliament, contact the committee and get on Microsoft Teams, the decision would not be one for this power.

It is imperative that we have this debate and discussion now, during peacetime—if I can use that word—as opposed to scrambling around and trying to pull together emergency actions that might or might not be underpinned by emergency powers.

As I have outlined, section 8 states that an “emergency situation” is one that places at significant risk

“the security and good order of a prison”

or

“the health, safety, and welfare of prisoners”

and staff. In essence, this is about life and limb.

On Ms McNeill’s point about regulations, we could narrow things in relation to who could be released. We will continue to engage with members and victim support organisations on that point. I hope that that is helpful.

Thank you. In relation to the operation of prisons, I appreciate that this is difficult, because we are trying to future proof without knowing what specific disasters could come down the track. However, if a prison did not have the space or capacity to safely look after all the prisoners, and if that was of significance in that there would be a risk to the health, safety and life of staff and prisoners in the event of a fire, resulting in the absolute necessity to release some prisoners, surely we would want to release prisoners who presented a lesser risk? That is part of our work to—

I am clear, as I know that others have been, that ending scheduled liberations on a Friday or the day before a public holiday is the right thing to do. It will enable more people to access on release the support that they need and that will keep them and others safe.

The policy intent behind section 6 is to increase access to those services, including housing, mental health and addiction support, and contact with justice social work. It is common sense, and the proposal itself came from a recommendation from, among others, the Scottish Drug Deaths Taskforce. However, I make it clear to members that this is not an either/or situation; we absolutely have to improve out-of-hours access, particularly to addiction services and family support. At the risk of sounding like a broken record, I think that we really need to bring all the solutions to the table, but this is one practical solution that we can put in place now.

That said, it is clear that, if Fridays and the day before public holidays are added to the existing list of excepted days, more releases will take place on a Thursday. Given that, as the member has said, we do not currently release people on public holidays or the weekend, there is already compression and pressure on Fridays that could then be displaced to Thursdays. That would increase the pressure on both community-based services and the Prison Service on that particular day of the week and would risk undermining the intent behind this provision.

To try to mitigate that impact, then, section 6 also provides that individuals whose release date would ordinarily fall on a Thursday will have their release moved to the nearest preceding suitable date. In practice, that will largely mean their being released the day before—in this case, the Wednesday—although I appreciate that there will be exceptions to that. I also note that section 6 does not seek to move any other dates.

This approach was not decided on some whim; it was—and is—intended to support the underlying principle of section 6, which is to enable people to access the services that they need on release from prison in order to keep our communities safe. Given that, taken together, amendments 68 and 69 would remove that provision, I cannot, for the reasons that I have outlined, support them, and I ask Russell Findlay not to press amendment 68 and not to move amendment 69.

Amendment 71 would require the Scottish ministers to report annually on the distribution of prison releases across the days of the week. Of course, the Government acknowledges that monitoring is important, but the amendment would also require the Scottish ministers to report on whether services were still being provided by the bodies listed in section 34A(2) of the Community Justice (Scotland) Act 2016 to deliver

“the effective release of prisoners on Thursdays.”

A number of non-Scottish Government amendments to part 2 of the bill call for various reports and reviews, and I agree that it will be important to review the impact of the provisions. I am therefore minded to lodge at stage 3 an amendment that will encompass the various asks for reviews in the different sections of part 2 to provide a more coherent picture. I therefore ask Mr Findlay not to move amendment 71.

Will the member give way?

With respect, I point out that we have to be careful not to go from the sublime to the ridiculous. I appreciate that, when providing for future-proofing powers, it is difficult to come up with precise scenarios, but our prison estate includes more than one prison, and we are talking about the operational decisions that the Scottish Prison Service would make in an emergency. If, say, a small prison such as HMP Greenock was out of use, prisoners could, of course, be moved elsewhere. However, in extremis, decisions might need to be made to release some prisoners.

I will make a final point to Ms McNeill by giving the English comparison, although I am not for one minute saying that we should not be debating what I am asking for in a Scottish context. However, by way of giving some contrast, I note that the power in England is very broad, with the secretary of state able to make decisions about the safe use of prison places, whereas the power in Scotland has been built around emergency scenarios. In relation to the limits, it would be eminently sensible to set out in the regulations who could be released in the first instance.

As we have heard, amendment 70 would end automatic early release for short-term prisoners. That would be a significant change to the justice system with associated substantial costs. A change of that level would require careful and detailed consultation and consideration. As much as debate and discussion are very important and welcome, a decision of that magnitude should not be made on the basis of a very short debate at committee during stage 2 of a bill that does not otherwise deal with when short-term prisoners should be released. Moreover, although the matter was raised during the consultation to inform the bill, there was no settled view on it.

Scotland is not alone in having a system of automatic early release; such a system also operates in England and Wales and other jurisdictions in one form or another. Of course, that does not mean that we should not debate and scrutinise our system.

Mr Findlay’s amendment raises important wider issues to do with who and what prison is for. I am most certainly not dismissing the points that he and other members have raised—I recognise that there are very strong views on automatic early release in that it is automatic and not earned or assessed—but, as other members have acknowledged, sentencing is a massive issue and it should always be considered in the round. It might also be helpful if members were aware—as I am sure that they are—that most sex offenders on short-term sentences are released on conditions.

The matters that Mr Findlay has raised should, of course, be discussed, but in more detail and with context. I do not feel that we are able to do that in the time that we have today. Essentially, ending automatic early release would have significant consequences for the justice system and the prison system in particular. Moreover—I am sure that I am just stating the obvious to members—it would have a significant financial impact. Decisions on these issues are not to be taken lightly. They are deep issues that require proper discussion and consultation.

Currently, the short-term prison population is close to 2,100 prisoners. Ending automatic early release could substantially increase the proportion of the sentences that those individuals serve, which would lead to higher prison populations. By way of illustration, I note that, if short-term prisoners served on average five sixths rather than one half of their sentence, the population would be expected to rise by almost 1,400. Given that the estimated annual cost of a prison place is circa £42,000, this unfunded amendment could lead to additional annual costs of around £59 million. Significant capital costs could also be associated with expanding the prison estate to address that increase in population.

I stress that Mr Findlay has raised important points that merit further discussion, but I do not think that we should decide on such a fundamental shift in justice policy and practice without full consideration of all the consequences. There would be risks in doing so. A particular risk that I point out is that, although amendment 70 would result in short-term prisoners being released on licence, it makes no provision for how that would work in practice. It also makes no provision for what would happen if a released short-term prisoner were to breach a condition of their licence. Finally, there is no mechanism for Scottish ministers to take any action to address that; for all other prisoners released on licence, their licences can be revoked and they can be recalled to prison. Those are just some examples to show why these matters should not be decided on here today.

For all those reasons, I ask Russell Findlay not to press amendment 70.