Chamber and committees

Thank you for inviting me to come along. I will be brief.

SSI 2021/289 extends the application of certain modifications that were made to the prison rules in response to the coronavirus pandemic by the Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2020 (SSI 2020/122). The current amendments to the prison rules are due to expire tomorrow, and the instrument’s purpose is to extend the application of the changes until 31 March 2022 and to revoke others that are no longer considered to be required.

Given the unique operating environment of the prison setting, the Prison Service considers it necessary to retain some of the flexibility afforded by previous rule amendments that were made during the pandemic to ensure the safe running of our prisons for the pandemic’s duration. The Prison Service also considers it necessary to take steps to retain some of the flexibility afforded by previous SSIs that were introduced during the pandemic to ensure that we are prepared and able to focus on any immediate priorities that might arise.

Members will of course be aware that the threat of coronavirus to the operation of the justice system remains. As at Monday this week, there were 136 positive Covid cases spread across nine prisons in the prison estate, so vigilance is vital. I should also say that the Scottish Prison Service’s track record in this area is very good compared with the record of other jurisdictions.

The SSI seeks to retain some of the powers that were taken in response to the pandemic, which gave prison governors the flexibility to introduce precautionary and responsive measures to prevent and limit the spread of the virus and, crucially, to ensure the safety and wellbeing of those who live in, work in and visit our prisons.

Among the key powers that are being retained are powers to allow governors to suspend or restrict, if necessary, in-person visits, purposeful activity and recreation in response to local outbreaks; rule 40A and the extended timescales in rule 41, which provide governors and local national health service partners with the means to comply with Public Health Scotland and Scottish Government advice in relation to the isolation of large groups or individuals who are symptomatic or who have been in close contact with a person who is symptomatic or have been identified as a close contact of a person who is symptomatic, or who are new admissions that might present a Covid-19 risk; and the ability for governors to extend the period for which a prisoner is on home leave for up to 14 days from the normal seven days where prisoners advise that they or someone in their home has coronavirus or has developed symptoms of coronavirus.

The committee will be aware that, in advance of laying the instrument before Parliament, the SPS undertook a tailored consultation in July with stakeholders such as the Howard League, Families Outside and Her Majesty’s Inspectorate of Prisons for Scotland. In addition, an operational review determined that not all amendments to the prison rules would require to be maintained, due to the majority of the estate returning to a regular two-shift model working day in October 2021, with staff attendance patterns that better support a fuller regime model.

The majority of amendments that are revoked by the instrument are related to administrative processes and associated timescales in areas such as internal disciplinary processes and requests and complaints. The rules that are being retained are intended to remain in force until 31 March 2022 but can be revoked earlier if necessary. Consistent with the wider community, the Prison Service is opening up regimes across the estate and its priority remains to continue transitioning to a full regime in alignment with public health advice.

For clarity, the powers in question are therefore proposed as precautionary measures and will be used only if they are felt to be necessary and proportionate. They will be subject to multidisciplinary input and decision making, and will be kept under review if put in place. Senior SPS headquarters staff and governors will continue to work with the Government and NHS colleagues to ensure that the most up-to-date information available is used to inform their response and contingency planning.

Given the uncertainty that exists as we approach another winter, it is essential that the Government ensures that the Scottish Prison Service can rapidly respond to all eventualities of the pandemic, whether nationally or locally. The draft rules provide for precautionary powers that are essential to the SPS’s continuing response to the pressures that prisons face during the pandemic.

I welcome any questions that members may have.

Her Majesty’s chief inspector of prisons has the powers that are set out in statute to inspect prisons and undertake various other elements of scrutiny of prisons, which Mr Fox might want to speak to.

The Prison Service carried out a human rights assessment prior to the instrument being laid. I understand the concerns that committee members have, but I will describe the way that the system has worked over the pandemic. The governors are not tyrants—I am not suggesting that that has been suggested—and they know that the best way of managing a prison is to allow the maximum possibility for purposeful activity, such as visits. That is why they have worked hard on alternatives to visits. That tends to help to make the running of prisons easier. Sometimes, it is not in governors’ interests to restrict such activities, and they would do it only because of health needs.

The safeguards are the conversations that governors have with SPS headquarters. It is possible for legal action to be taken if a governor extends their powers. Plus, there are the inspector of prisons and the European convention on human rights.

The officials might want to speak on any further powers that the inspector of prisons has on the matter.

Yes, and the powers that we seek to revoke, rather than extend, are, in large part, to do with internal administrative and disciplinary processes. You are right in identifying the ones that we wish to extend.

I note from my recent experience at committees that there have been a number of times during the pandemic when the usual expected patterns of development for measures have been curtailed, for fairly obvious reasons. It was probably not possible, even in July, to predict what stage the pandemic would now be at, although when the powers were due to expire was predictable.

The extension of the powers is not being nodded through. I acknowledge that the consultation process was limited; however, I again emphasise that the SPS did not have to undertake it, although it was right to do so. I am also not sure that it is true that the balance was critical here. Officials might have the exact details, but some who were contacted did not respond at all while others said that they had no comment to make.

You are right to say that the issues raised were significant and probably reflect those that members will raise today; indeed, they are the obvious issues of concern. As a result, the Government did not seek to have the proposed extension nodded through. We talked to the Prison Service about it and, on balance, believed—for the reasons that I gave in my opening remarks—that allowing the powers to be extended was the right thing to do.

I understand that the extension runs to 31 March next year but, as I have pointed out, the pandemic has changed in nature and, indeed, is changing all the time. I hope that, when we see the figures today, further progress will have been made. I undertake, if the nature of the pandemic changes again—and if the committee so wishes—to come back before that date next year and further discuss the need for the powers. I am more than willing to do that. However, at this point, the Government has considered the consultation responses and believes that, on balance, this is the right way to go.

I will be brief. Thank you for the invitation to committee. Last week, we both appeared before the Criminal Justice Committee for a similar session. Given that the minister’s portfolio responsibilities cover civil justice, I imagine that you will look to talk to her over the coming months, but I will, as ever, be happy to come and answer any questions on the wider issues.

I will take up one point that the minister has made already about the impact of public health measures on court business. It is an important point because, in discussions about court backlogs—which, as you can imagine, are substantial—some people may have been looking at the issue purely as a criminal justice matter. However, we need to recognise that resources that are essential to our recovery work, such as the judiciary, court staff and court buildings, cannot be stretched in one area without that having an effect on the work in the other area. It is essential that we look at the criminal and civil justice system as one in relation to that, rather than as two distinct issues.

From my part of the portfolio, recent laws on hate crime and protection from domestic abuse orders that were passed in the previous session each in its own way demonstrates ways in which criminal law impacts on our civil legal system. Parliament has taken the decision to split the justice portfolio between two committees, but we know that such a split can never be entirely clean or absolute when we cleave apart the criminal and civil justice system. We will see that over the coming months and years, when we discuss manifesto commitments such as legal aid or the register of judicial interests, which the minister touched on and which come into both areas.

Last week, as I said, the minister and I appeared before the Criminal Justice Committee to discuss our priorities. We both expressed our willingness to work collaboratively with members of that committee when taking forward our proposals for reform. I reiterate that commitment to build consensus where possible to the Equalities, Human Rights and Civil Justice Committee. Together, I believe that we can reform for the better the way in which civil justice works for the people of Scotland.

When the minister and I met the Faculty of Advocates, it expressed a similar concern. Even when putting a case to somebody who is very accustomed to a courtroom, there is the issue of being able to read body language and, to an extent, to lip read what people are saying. There are two sides to it.

As the minister said, there are benefits to remote hearings in certain circumstances. The Faculty of Advocates also raised with us the fact that there should not be a practical logistical reason for somebody not being able to participate. We talked about the provision of additional keyboards and iPads for some people, and what we can do to help with that.

As we go forward, there will have to be awareness of both forms of participation. I do not know about the situation in other parties but, in my political party, we will not be dispensing with the use of online fora, because they enable people to make meetings that they could not otherwise make. Therefore, there will have to be a blend.

The Lord President has a very good and refreshing attitude, in that he is very keen to learn from and to keep the best of what we have done during Covid, but to be aware of some of the shortcomings, one of which Pam Gosal mentioned.

Given that the portfolio is split and that civil justice rests with the minister, I ask whether she may speak first. I will come in after that, if that is okay.

The legal professional organisations will be taking the lead in future recruitment for their professions. I think that I am right in saying that we are seeing record numbers of people going to universities to seek qualifications. However, part of it is down to how the legal professions can increase the numbers given the demographic that you mentioned.

The points about remand are well made. We have made no secret of the fact that we do not want to see as many people on remand. We understand that remand can be detrimental, especially if, at the end of it, the person is found not guilty. However, none of those things is by design. The pandemic is real and we cannot wish it away. It has implications for the justice system and, unfortunately, it has given rise to the higher number of people on remand.

I go back to what I said in my opening remarks about the fact that I cannot be too specific in advance of the publication of the programme for government, but we are looking to take early action in relation to remand, not least for some of the reasons that Mr Greene mentioned. We are very conscious of both the human rights of those who are involved and also, particularly for those who have never experienced a justice system before, the impact that it can have on the person, their family, their employment and all sorts of other things. We are very seized of that. However, the situation arises from the pandemic. Like many other jurisdictions, we want to do the best that we can to mitigate the effects of that.

The Scottish Police Authority will hold the police to account for its performance in relation to that. As you would expect, however, I have had conversations with the police about the issue.

There is a public concern and the situation requires further attention. It is vastly better than it was in the past, with the legacy forces, when people would call the numbers—I am talking not about 999, but about the equivalents to 101—and they would ring out, with no record being kept of the unanswered calls. Nobody knew the extent to which that was happening. I am told that that is very much the case now in other parts of the United Kingdom, and it cannot be satisfactory.

It is right that 101 is a triage service that directs people to the right place, because people sometimes call for reasons that are nothing to do with the police, and it is right that the police have a way of clearing those calls. However, it must be improved. I spoke this week to the chair of the SPA and senior officers, and they are seized of the need to improve on the figures.