Chamber and committees

If it is no longer being used as a prison, what will happen? Will it just be demolished and remain Government property?

Does the report reflect that there is clearly positive dialogue between the two Governments, which is helpful in this scenario, given the subject matter? Clearly, there is some mopping up to do, which I do not have any particular view on; it is for the Governments to decide on that. It is clear that there has been some movement already, and some amendments have been proposed by the Scottish Government, which I think is fair and due process.

Russell Findlay made an important point. It was quite a meaty report that only appeared in our papers this week, it was followed up very late in the day yesterday with the DPLR Committee report and it is complex and technical in nature. I would request that we ask the Government to give us notice of complex LCMs, as far in advance as possible, to give members time to read what turned into “War and Peace” committee papers this week. That would be helpful and it might mean that we would spend less time in session discussing it.

I have completely forgotten what I was going to ask, but I will try to pick up the pieces and move on. I will have a second question that is linked to the one that Pauline McNeill has just asked.

My first question is on petitions to wind up limited partnerships. If I heard the minister correctly, I think that he said that the secretary of state can apply to a Scottish court with the consent or support of the Scottish ministers—I think that that was the language used—or that the Scottish ministers could raise a petition themselves. It therefore sounds as though there might be two avenues to petition the Scottish courts. What scenario planning has there been for any dispute resolution mechanism should the secretary of state intend to raise a petition but ministers disagree, or vice versa? I know that that is a minor technical point, and such a scenario might never happen, but I wonder what the process for dealing with it would be.

I am not sure that we should be reticent about making changes such as the one that is proposed in amendment 70 based on the question of how well resourced the Parole Board is. The Parole Board will need to be resourced to the level to which it needs to be resourced in order to meet the legislation that we put in place.

If the issue is about public safety or the suitability of a prisoner to be released and the likelihood of their reoffending after release, that should be the primary consideration, not the effect that the proposal might have on how much work the Parole Board has to do.

It is quite a short amendment and we are trying to get our heads around what it would do and why. Is the scenario that you are explaining that, prior to the Parole Board considering someone’s release, Scottish ministers could direct their release and that would be the end of the matter? In which circumstance would Scottish ministers want to release someone earlier than the Parole Board would decide to? It is not clear cut; the case has not been made.

I will describe what my amendment 93 would do. If members look at page 11 of the bill, they will see, about halfway down, proposed new section 3D of the 1993 act, which is about parliamentary scrutiny of regulations made under proposed new section 3C. It says:

“Regulations under section 3C are subject to the affirmative procedure, unless”

the following applies, and there is a list of situations in which that scrutiny would be removed.

My amendment takes a simplistic approach, perhaps, but it would remove the rest of section 3D down to the end and just before the beginning of proposed new section 3E on the following page. The reason for that is simple. It would remove the Scottish ministers’ ability to release prisoners under section 3 of the 1993 act without some form of parliamentary scrutiny or, indeed, a vote.

Affirmative regulations are often debated at committee, which could be an appropriate place. Indeed, over the years, this committee has given a number of Scottish statutory instruments full scrutiny and debate. Sometimes, we have even pushed an SSI back or brought it to a vote when there was disagreement. Therefore, the affirmative procedure is a suitable means of scrutinising such decisions.

I will come on to amendment 38 in a second. It clearly goes a step further. However, my amendment 93 would remove the problematic part of proposed new section 3D.

The bill states that the Scottish ministers can release prisoners under the made affirmative procedure if they

“are of the opinion that, by reason of urgency, it is necessary to make the regulations without their being subject to the affirmative procedure.”

In her comments, the cabinet secretary said that that would impair their ability to make immediate decisions.

I will make two points in response. The first is that it is entirely possible for Parliament to make laws in an emergency situation when it is necessary to do so. The sort of emergency situation in this case remains unknown, because the cabinet secretary was unable to tell the committee what situations would be suitable for use of the power. During the passage of the coronavirus legislation, we, as a Parliament, even when not sitting in person, were able to pass quite sweeping laws in very short timescales. In fact, the Government makes use of emergency protocol to pass law when it suits it. Therefore, I cannot understand the rationale behind ministers arguing that their ability to make decisions would somehow be impaired.

There is the fundamental point that Parliament should be able to scrutinise such decisions, because we do not know the volume of prisoners who could be released or the reasons that could be given. At the very least, as a courtesy to the committee or to the Parliament itself, the Government should be forthcoming with its plans to do that, even at short notice, to give Parliament some say in the matter, so that it can be properly debated. It is a very sweeping power.

There is some definition of what would constitute an “emergency situation” on page 10 of the bill. For example, it refers to a

“situation which has resulted in any prison (or part of a prison) ... being unusable”.

Half of Greenock prison is unusable—does that mean that ministers could release prisoners on the basis that there was a water leak or damp? What if, for example, the Health and Safety Executive deemed a prison to be unsuitable and breaching international human rights legislation? Would that constitute a reason for release?

The answer is, “No, probably not,” and the answer from ministers in that scenario would probably be that it would not, but the provision as currently drafted says that they could do so. That is the problem.

I indicate to Katy Clark that the Conservatives will support both amendments in the group if she presses them to a vote.

I appreciate that the circumstances are in some ways abstract. We understand that powers are needed for pandemics and other health emergencies; such provisions are common to other legislatures. More extreme unplanned situations that have arisen in other countries include a prison fire, when people needed to be released quickly. That led to huge amounts of absconding, because people never came back after they left the prison gates. It would help if the Government were a bit clearer about what scenarios might constitute an emergency that such a power might be suitable for.

We would be happy to support amendment 6.