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Criminal Justice Committee

The Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment (No 2) Rules 2021

Letter from the Cabinet Secretary for Justice and Veterans to the Convener, Criminal Justice Committee, 28 September 2021

Dear Convener,

I am writing in response to the Committee’s request for Ministerial views on whether the extension of powers for prison Governors in the amendment Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment (No. 2) Rules 2021 meets the Scottish Government’s latest guidance on isolation measures, and whether what is proposed is a proportionate approach to achieving the balance of keeping prisoners and prison staff safe, whilst ensuring that the human rights requirements of prisoners are met.

People in prison are disproportionately drawn from the most disadvantaged areas in Scotland. Many have poor health, with high prevalence of alcohol, drug and mental health problems. Overall mortality is three times higher than the general population. Imprisonment can compound poor health and wellbeing.

The pandemic has brought significant challenges for those delivering care to residents in prison. As a closed setting, the risk of transmission is high. This is in a population with a high prevalence of underlying co-morbidities, a recognised risk factor for adverse outcomes associated with COVID-19.

Given the unique operating environment of prisons, the high levels of infection and the uncertainty around the spread of new variants of COVID-19, we consider it necessary to take steps to retain some of the flexibility afforded by previous SSIs made during the pandemic, to ensure that prisons are prepared and able to focus on any immediate priorities that may arise. The Committee will have observed that a number of provisions contained in previous SSIs are not being sought on this occasion.

SPS’s response to the pandemic and its use of powers in response to the pandemic has always been aligned with public health advice whether locally or nationally, ensuring the safety of all those who live and work in prisons. Prison Governors work closely as part of a multi-disciplinary team and with Public Health officials to decide on the actions that need to be taken in response to an outbreak. Public Health Scotland recognise the particular requirements that the prison environment presents and their COVID-19 guidance for prison settings- published in July- provides an overview of the public health measures to be put in place to prevent the spread of COVID-19 including at page 15 of the guidance where it states that ‘in order to reduce the risk of SARS-CoV-2 transmission following admission, individual prisons can consider admission quarantine for a minimum of 10 days (14 days where possible due to the incubation period of the virus)’. This guidance rightly recognises the Rights afforded to persons under the ECHR and The Statement of Principles relating to the treatment of persons deprived of their liberty in the context of the COVID-19 pandemic issued by the Council of Europe in March 2020.

On the matter of the targeted Consultation, although asked, not all the respondents to the consultation have given their permission for their responses to be published. SPS wrote to them again following this committee’s meeting last week seeking their permission to publish their responses. SPS intends to publish the consultation and responses in October 2021.

Stakeholders were asked 3 questions. They were asked: 1) if they agreed that the proposed amendments (as now provided in this instrument) are an appropriate response to ensure SPS is able to comply with its duties of care given the continuing requirement for there to be protective measures and sensible precautions taken to suppress the current wave of Coronavirus and to mitigate against the impact of further waves of the pandemic during Autumn/Winter 2021/2022; 2) whether stakeholders considered there to be gaps in the proposed amendment; and 3) whether stakeholders had any other comments on the amendments.

Substantive responses were received from HM Chief Inspector of Prisons for Scotland (HMIPS), Howard League Scotland and Families Outside.

HMIPS commented that it believed that the amendments are a reasonable response. It stated it would be a high risk strategy to rely on speedy introduction of emergency legislation if an issue emerges. It also praised SPS and the NHS’s response to the pandemic in relation to prisons and thanked SPS for the provision of information requested by HMIPS regarding the ongoing measures in Scotland’s prisons and the impact for prisoners, staff and families.

Howard League Scotland commented that it is supportive of measures necessary to underpin the SPS’s response to the exceptional pressures facing prisons during the current and potential outbreaks of coronavirus. Families Outside commented that it understands that there is still significant risk in the prison estate that requires robust infection control measures.

HMIPS also stated that, with time to prepare, it would not like to see the retained powers used without transparent, clear and sufficient justification. It is also seeking clarity on where decisions are taken on prisoners accessing visits, purposeful activity, and recreation. Howard League Scotland noted that the flexibility afforded to governors by the rules being retained should be subject to appropriate external scrutiny. I would note that HM Chief Inspector of Prisons for Scotland provides external, independent scrutiny of prison operations. Families Outside also commented that it would be helpful to understand any specific guidance or principles the SPS is working within in order to judge whether the amendments are an appropriate response and to allow them to communicate effectively and support families.

Howard League Scotland raised concerns about the time limits in rules 40A (recommendations by healthcare professionals – coronavirus) and 41A (accommodation in specified conditions – coronavirus) which I have addressed above. Families Outside recognised that rule 40A is still required but noted concerns about it being exercised in relation to new admissions to prison. This application of the rule is necessary as governors and prison staff cannot compel prisoners to be vaccinated or take covid tests, nor can they compel them to tell them if they have been vaccinated or the result of any covid test they have taken. To protect other prisoners and staff, it is necessary to retain this rule for this particular purpose. The current policy is that a new admission who refuses a test is only required to isolate if they present with covid symptoms. Only if there is an outbreak at a prison will a prisoner who refuses a test be placed in isolation if they do not have symptoms.

In relation to the retention of rule 63A (suspension of visits), both Howard League Scotland and Families Outside raised concerns. Howard League Scotland was concerned that a decision on suspending visits is left to the discretion of a governor. Although the rule itself does not require a governor to take advice, in reality governors obtain advice from multi-disciplinary teams on the exercise of this and other powers. That includes obtaining advice from the National Coronavirus Response Group (NCRG) established by SPS to support staff and establishments with their local planning and response. The NCRG is working with senior SPS staff, Scottish Government and NHS colleagues to ensure SPS Governors have the most up-to-date information available to inform their response to the pandemic. Each establishment has a Local Coronavirus Response Group (LCRG) which is a multi- disciplinary group that includes representation from NHS and often local public health colleagues. Where there is a declared outbreak in the prison, Incident Management Team (IMT) or local Health Protection Team, which comprise of NHS and Public Health Scotland Staff will discuss and advise the governor on any protective measures which are required to be implemented and this can include restrictions on visits and regime. Governors are also required to comply with the European Convention on Human Rights (ECHR) when exercising discretion like that in rule 63A and the exercise of the discretion is also subject to potential review in Scots common law on grounds such as irrationality.

Families Outside suggested amendments to rule 63A due to concerns raised about children contacting parents in custody. We did not consider these amendments necessary. The rule as it currently stands allows governors the flexibility to only suspend visits for certain categories of prisoner or certain categories of visitor. Exceptions could be made when a decision on suspension is being taken. However, that would be a decision which is based on advice available at the time on the particular circumstances applying at a prison. Decisions to suspend visits are kept under constant review. Time limits could potentially have the effect of suspensions being put in place for longer than is absolutely necessary.

In relation to rule 63A I should also note that this rule is designed to allow a local response to the pandemic. In previous coronavirus legislation requiring individuals to “stay home” or “stay local”, prison visits were made a “reasonable excuse” for travelling beyond the limits set in legislation and guidance.

HMIPS noted that the alternatives to face to face contact such as in-cell telephony and virtual visits were an excellent response to prisoners’ article 8 ECHR rights. Mobile phones have also been issued to prisoners to provide a further means of contact with family during the pandemic.

Similar concerns on the discretionary nature of the power afforded to governors by rules 84A (purposeful activity – coronavirus) and 88A (recreation – coronavirus) were raised by Howard League Scotland as were raised in relation to rule 63A.

I hope this information is helpful to the Committee in their consideration of this SSI.


Keith Brown