Chamber and committees

As it is not my amendment, I will let Russell Findlay speak to it.

I will in a second.

Amendment 38 goes a step further. I am not necessarily saying that the Government should not have the power; all I would be doing through my amendment is providing that regulations under section 3 be subject to the affirmative procedure—full stop. There would be no exceptions to that.

For the benefit of the cabinet secretary’s understanding, the rationale for the amendment was that victim support organisations themselves had written to the committee to say that they would like to be involved in the delivery, not just in the planning. That is in black and white.

If we want to know what they think their role is, perhaps we and the Government should ask them, and then they would not have to write to us the night before stage 2 consideration. I strongly advise that either the committee or the Government speak to the three organisations in question ahead of stage 3. If they feel that there is no role in delivery but there is a role in planning, we can find a way around that.

Of course, there are other ways of amending the bill as it is. The proposed new section 34A on “Duty to engage in release planning” is a duty to engage, not a duty to deliver. That whole paragraph, which refers to statutory “persons” and their role

“in the development, management and delivery of the release plan”,

could easily be split into two sections. There could be a group of people who are statutory named persons involved in development, and another group who are involved in delivery. As you rightly pointed out, cabinet secretary, there is a difference.

There will be solutions to that issue that will not place undue statutory duties on organisations that do not want or need them, but which, equally, will reflect the views of those organisations. I am sure that my colleague and I will work on such amendments with the Government, as it is willing to do so.

I support the amendments. The additional point that I want to make before the cabinet secretary responds is that we looked at the issue quite constructively at stage 1. There is clearly an identifiable issue, historically, of prisoners being released on a Friday without access to good and proper public services. I suspect that that is the reason why we stopped releasing people on Saturdays, Sundays and bank holidays. Many of the public services that people rely on upon release were reduced on those days.

Our concern, which perhaps underlines the amendments, is that the solution to that problem is not to condense the number of days on which someone can be released. That is a technical solution to the problem, but it does not solve the problem. The problem is that we should be improving access to services upon release and not simply releasing the same number of people but to a much shorter timescale. The concern that we have heard about that is that it will put huge pressure on the very public services that we are trying to ensure are delivered to prisoners on release, including services provided by social work departments and local authorities. The capacity of such public services is already quite overstretched. If they can provide services only from Monday to Wednesday, instead of having five days to staff those services, it either means reduced access to services or some people not getting the attention that they need upon release.

I think that we all understand the Government’s intention, but do we really need to put it in primary legislation? Could the Government have been a little more ambitious and made this a short-term measure, with a view to improving services so that we can use Mondays to Fridays in the way that they are used by the wider public? We understand the Government’s intention, but the bill seems like a blanket approach to the problem—and not necessarily one that will fix it, either.

If the Government is not minded to accept the amendments, one solution might be to make the provision temporary and, if the Government is so inclined, to commit in the bill to monitoring outcomes and taking action as a result. After all, what we do not want to see a couple of years down the line is Wednesday or Thursday being seen as the new Friday and people still being failed. That is clearly not an outcome that anybody wants, and I ask the Government to reflect on that, too.

I have only one amendment in the group—amendment 99. For the record, I support all the amendments in the group.

It is notable that the group consists of three sets of amendments from three members of the committee, all of which seek to do what many organisations have asked us to do, which is to give the third sector a greater role and to ensure that there is greater consideration of victims throughout release planning, in the absence of any Government amendments to do so. I hope that, even if the Government is not willing to accept overtly any of the amendments in the group, it will at least commit to take some of them away. We will hear more about that shortly.

Section 9, “Duty to engage in release planning”, lists the persons who have a statutory duty to engage on release planning: the local authority; the health board; Police Scotland; Skills Development Scotland; and the integration joint board. To be fair to the Government, section 9 goes on to say that, in complying with that duty, those persons

“must have regard to the role which third sector bodies are able to play in the development ... of the release plan”

and “may commission services” from them.

It is widely understood that the third sector could include some of the organisations that we have referred to this morning. However, the problem is that they can be involved only if they are commissioned by any of the parties that are named in new section 34A(2) of the 2016 act—the named persons who have the statutory duty. Therefore, there is scope in that section for the Government to provide for a more direct relationship between the Scottish Prison Service and the third sector instead of third sector bodies having to go through an intermediary—in this case, the local authority, the health board, SDS or the IJB. If my interpretation of that is wrong, I am happy to be corrected. It feels as though there is a missing element there, which is why so many of us have ideas about how to amend the section.

My amendment 99, on the reporting requirement, is similar to Katy Clark’s amendment 40, which I support. I suspect that the Government will say that it is looking at the wider reporting requirements that have been added into various sections of the bill. As I understand it, we heard earlier a commitment to making, in part 2 of the bill, greater provision with regard to reporting requirements.

I think that amendment 99 would be a sensible addition. In fact, I was trying to be fair to the Government; I actually thought that a year was quite a tight timeframe for producing such a report, so I kindly changed it to three years, which is why there is a separate amendment of a very similar nature. I would be content with either timeframe, and I note that, in the correspondence that we received from Victim Support Scotland yesterday, it said that it preferred one year but would be equally content with three.

I also want to put on record another interesting point that the organisation made. Although, as drafted, the persons who must comply in the development of release plans

“must have regard to the role which third sector bodies are able to play”,

Victim Support Scotland proposes that new section 34A of the 2016 act be amended to explicitly provide for victims of crime and victim support organisations to be involved and consulted in the development, management and delivery of the release plan. Some of the amendments in this group address that, and VSS understands why and, as a result, strongly supports them. I therefore hope that we get some positive responses from the Government on this group of amendments.

Amendment 9, in the name of the cabinet secretary, is the first amendment in the group. As I said in a previous intervention, we are unsure as to the technical outcome of repealing section 3AA(7) of the 1993 act. I have listened carefully to the cabinet secretary’s points. Either I do not fully understand the scenario or I am not convinced by it—I am not sure which at the moment.

My understanding—this is a by-product of how we legislate—is that we refer to the Scottish ministers making decisions. However, the cabinet secretary talked a lot about the SPS, as opposed to the Scottish ministers, making decisions. There is a big difference.

There is a lot of discussion about section 7 and the powers that ministers might or might not have in relation to interventions. We need to be quite clear with people that a decision that is made by a minister might be made for very different reasons from one that is made by the SPS. In addition, we do not know who in the SPS would make such a decision. Is there a committee in the SPS that would decide on such a matter? Would it be up to individual prison governors, who are employed by the SPS? If the latter is the case, you could argue that the amendment gives governors more autonomy in what happens to their prison cohort, acknowledging their understanding of the prisoners who are in their institution. You could argue that that sounds like an eminently sensible thing to do. Equally, however, some prisons are not operated by the SPS but might fall under its wider remit. There are questions to answer in relation to that, too.

There is a big difference between giving ministers the power to override, overrule or pre-empt decisions that are made by independent bodies such as the Parole Board and other decisions that governors might want to make. I am not convinced that the case has been made that the Government needs that power.

If we end up in a scenario in which a Government minister directs the release of someone but there is unhappiness with that decision in the prison or the SPS, or the Parole Board has reservations about it, it is unclear whether the release would go ahead or whether there is the ability to stop or appeal that decision. That is not covered, because the amendment has a blanket approach to that scenario. I do not think that the committee went into that fully, which is unfortunate, because there might be some merit in what the cabinet secretary is trying to say on why the power might be helpful in some scenarios.

Although 75 to 200 prisoners does not sound like a lot, it would be a lot if they went out and committed further offences or if they were people who the Parole Board said might not be suitable for release but ministers wanted to do it anyway. I am unsure as to why ministers would ever want to do that. Again, if we had had some evidence on this and we had talked about it at stage 1, we might have been more convinced. For that reason, I am inclined not to support amendment 9.

My amendments fall into two groups: amendments 75 and 80 seek to strengthen the consideration of victims throughout the process; amendment 89 is more of a blanket amendment.

I welcome the cabinet secretary’s comments. I will not go into great detail selling amendment 75 to the committee, but it is an amendment that Victim Support Scotland, Scottish Women’s Aid and the advocacy, support, safety, information and services together—ASSIST—project strongly support. Members will note the paper that they sent to us yesterday, listing the amendments that they do not support, support or strongly support, and I am pleased that they strongly support amendment 75.

It is often the case that members draft amendments in a certain way and then the Government is happy to look at those draft amendments. I very much welcome that, and I would be happy to work with the cabinet secretary to look at whether the existing statutory protections could go beyond

“protecting the public at large”,

as the bill is drafted, and be strengthened to include victims.

We might, however, have some disagreement on amendment 80, which is another short amendment that is strongly supported by Victim Support Scotland, Scottish Women’s Aid and the ASSIST project—I think for good reason. I understand the argument made about that is about listing offences, but this section, ultimately, is about ministers releasing people. In fact, it says at line 15 exactly what section 7 does:

“The Scottish Ministers may release on licence ... a long-term prisoner whose release ... has not been recommended by the Parole Board.”

That is the wider issue. We cannot forget that the section is about conferring an additional power that currently does not exist. Members might have a wider view on whether or not the Government should have this power, but if the Government must have this power—and that is clearly the direction of travel—all that we can do is add in some safeguards. Amendment 80 would do exactly that by introducing a prohibition against the release of someone who, for example, is on the sex offenders register, but specifically where the Parole Board has not directed the release of that prisoner.

The cabinet secretary spoke about risk assessment. I believe that the Parole Board goes through that process robustly. Not everyone always agrees with the outcome of that, and there is then a process for that, but surely the best place for risk assessment is in the independent, arm’s-length situation of the Parole Board.

It is hard to see how there can be true risk assessment if the Parole Board is not involved, specifically for cases in which someone has been convicted of a specific sex offence, when there may be greater risk to a victim on the release of the individual, and I do not believe that the Government should hold the power to release that individual. Therefore, I would like to reintroduce the existing prohibition that is being removed by the bill. I believe that that is why the amendment is supported by victims’ organisations.

I will leave my comments at that—thank you.

I am struggling with this. I do not want to get into a tripartite debate, but if it is an emergency power that is based on risk to life, why are there exemptions? For example, there are exemptions relating to people who have been convicted of terrorist offences, those who are subject to an extradition order and those who are serving a sentence under section 210A of the Criminal Procedure (Scotland) Act 1995. Are we saying that some prisoners would be released but that others would not be released in a life-threatening situation? I know that the cabinet secretary cannot intervene on an intervention, but that does not make sense.

I want to add two further points. It is clear that if a judge deems that someone merits a two-year sentence—in other words, two years in custody—they will direct that they receive a four-year sentence, in the knowledge that automatic release will allow them to leave custody after two years. The same would be true in relation to someone whom a judge thinks merits a three-year sentence—they would give them a six-year sentence, knowing that, as the law stands, they would be out after three years anyway.

Consideration needs to be given to the practicality of the law as it is at the moment. It is unclear why there is not parity between short-term and long-term sentences. We would have found it very helpful to get an analysis of the data on reoffending relative to sentencing, which is a subject that I have always been intrigued by. I presume that there is some form of parabola or gradient—we have certainly heard about this anecdotally—around the ability to rehabilitate someone in custody.

Regardless of what your views on such sentences are, the Government has declared that very short sentences are in some ways useless and do not provide the best outcome from a rehabilitation point of view. There is academic evidence that shows that time is needed in order to rehabilitate people, and very short sentences have just as poor outcomes.

It would have been helpful to understand why the cut-off has been set in the way that it has and why the promise that was previously made to analyse and change that, if required, has not come to pass. I hope that that has nothing to do with the size of the prison population, because emptying prisons through automatic early release is not the way to address that issue. There are serious questions to be asked about how much rehabilitation can take place in a very short period—14 months, say—in custody.

In my view, the approach should be evidence and data led. Unfortunately, the committee has struggled to get data on the issue. If the statistics show us that there is a cohort of people who are released after between 12 and 24 or 36 months in custody who have a higher reoffending rate than prisoners who cross over the line of 50 per cent automatic early release, surely the Government needs to be mindful of that. Once again, though, we have struggled to get any meaningful data on that.

Given that the bill is all about changes to bail and release, it provides the Government with a good opportunity to justify the status quo, or at least to make a commitment to change it, as it has done hitherto.

There is a massive difference between automatic release and eligibility for release, and I feel that these decisions lie best with the Parole Board. The premise of the amendment is that people could still be released after serving 50 per cent of their sentence. That is not up for argument, whatever your views are on the policy—

—but it would be subject to the extra level of test that the Parole Board was comfortable with it. I appreciate that there would be implications for the Parole Board and it may be unhappy with those, to an extent, but it would add another level of scrutiny to the process.

Automatic release means that the person just walks out the door halfway through their sentence. Given the data that we have on reoffending by those prisoners, the amendment would add an extra level of check and balance to that release. Prisoners would still be eligible for release halfway through their sentence, if suitable.