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Meeting of the Parliament [Draft]

Meeting date: Wednesday, June 12, 2024


Parliamentary Bureau Motions

The Presiding Officer (Alison Johnstone)

The next item of business is consideration of Parliamentary Bureau motion S6M-13616, on approval of a Scottish statutory instrument.

Motion moved,

That the Parliament agrees that the Early Release of Prisoners and Prescribed Victim Supporters (Scotland) Regulations 2024 [draft] be approved.—[Jamie Hepburn]


Russell Findlay (West Scotland) (Con)

The Scottish Government constantly tells us that too many people are in prison, but it never identifies who should not be in prison, and it never identifies which sentences are wrong. Every single prison sentence is decided by the independent judiciary.

Today, the Government will seek to undermine those individual decisions by ordering the mass emergency release of up to 550 prisoners. The justice secretary says that she cannot build her way out of this crisis, and she is right to say so, but her Government should have built replacements for crumbling HMP Barlinnie and others.

That is one area of neglect during 17 years of Scottish National Party rule. Not only has it failed to build new prisons—[Interruption.]

Let us hear Mr Findlay.

Russell Findlay

The SNP has also failed to invest in meaningful community sentencing that can be trusted by the judiciary and the public. The Scottish Government has been engaged in a soft public relations campaign ahead of today’s plans.

Keith Brown (Clackmannanshire and Dunblane) (SNP)

Will Mr Findlay acknowledge that part of the reason why we have such stringent capital controls is the decisions of the Westminster Government and that, in England, the prison estate is in a far worse—[Interruption.]

Let us hear Mr Brown.

The prison estate is in a far worse condition there than it is in Scotland and there are far greater problems from overcrowding. Does he not accept some of his party’s responsibility for the current situation?

Russell Findlay

Keith Brown is a former justice secretary—there have been 17 years of neglect. This is the same man who recently said that any prisoners leaving prisons in England might maraud across the border and commit crimes here.

The SNP has not only failed to build new prisons but embarked on a soft PR campaign ahead of today’s plans. For almost a year, a procession of senior Scottish Prison Service officials have been given freedom to speak to the media about the prison crisis. If only this anti-transparency Government encouraged such candour across our public services.

Many victims of serious crimes will first hear about the measure on tonight’s news. It will cause fear and anxiety. Prisoners who are being set free will have committed serious crimes, including crimes of violence.

When the Government previously freed hundreds of prisoners in 2020, Victim Support Scotland called for victims to be automatically informed of any future release.

Will the member give way?

Is there any more time in hand for another intervention?

We have a little time. I call Pauline McNeill.

Pauline McNeill

Does the member agree that this is an unsatisfactory way of dealing with such substantive legislative issues? The process has been very rushed, and I have a chance to speak only by intervening on the member.

Does he share Scottish Labour’s concern that the rising prison population was known about for some time? Should we agree to the release of up to 500 prisoners 180 days before their due release date, there is no guarantee that that will not happen again if there is a high offending rate, and it happened during the Covid pandemic. I found it difficult to make a decision on the matter in committee this morning.

Does the member accept that victims organisations do not seem fully satisfied with the approach? Although victims will get notified if they are part of the victim notification scheme, the vast majority are not part of the scheme and therefore will not be automatically notified. Does the member share my concerns about that? Will the governor’s veto be sufficient as an extra safeguard to alleviate public concerns?

Russell Findlay

I completely agree with much of what the member says, and I share her frustrations about the speed with which this is happening and the lack of engagement that she has been able to have on the matter.

I return to automatic provision of information to victims. That will not happen, despite Victim Support Scotland asking for it; instead, victims will have to go looking for the information. They will have to ask one of four designated organisations, which are Victim Support Scotland, Rape Crisis Scotland, the ASSIST—advocacy, support, safety, information and services together—project and Children 1st. Those organisations will then need to ask the Scottish Prison Service. It seems likely that, by the time victims get an answer, some prisoners will already have been freed.

Five times this morning, I asked the cabinet secretary to clarify that simple but important point, but she failed to do so. It was only yesterday that victims groups were even given sight of the information-sharing agreement. That is shambolic, and it proves that victims’ rights are an afterthought at best.

The Government likes to take the moral high ground by preaching about smart justice, but it is not smart—it is weak. The emergency mass release will result in more crime—that is what happened last time. We cannot support that. To do so would be to fail victims and risk encouraging the Government to believe that that is the new normal.


The Cabinet Secretary for Justice and Home Affairs (Angela Constance)

I am very grateful to the Delegated Powers and Law Reform Committee and to the Criminal Justice Committee, with which I spent considerable time this morning, for their careful scrutiny of the regulations. I am also very grateful to the justice spokespeople and individual MSPs and stakeholders who have engaged with me on the matter and on the specifics of the regulations that are in front of us.

Yes, we have had to move at pace because we have an emergency that we must respond to now, but there has been parliamentary scrutiny of the regulations every step of the way. That is in contrast to the secret release plans that are taking place south of the border.

I have kept and will continue to keep Parliament updated on the position that we face in our prisons and, crucially, on the actions that we are taking to address the situation. Despite our efforts, the prison population has increased by 13 per cent since the start of 2023, with a spike since March 2024. This morning, there were 8,294 people in custody in our care. That recent sharp and unanticipated rise of 400 more prisoners in the space of a few months now places the security of prisons and the safety of prisoners and staff at significant risk.

What percentage of our prison population is on remand? If we got through those cases more quickly, surely we would not have to release prisoners who have already been convicted.

Angela Constance

Twenty-seven per cent of the male prison population is on remand and, in any given week, the percentage of the female population that is on remand varies between 32 and 38 per cent. Our remand population is too high, and there are a number of efforts to address that, including court recovery and our investment in alternatives to remand.

I am very clear that I have a responsibility to act. My appeal to Parliament tonight is that we cannot allow our prisons to become unsafe and that immediate and urgent action is now needed to ensure that prisons can still function safely and focus on those who pose the greatest risk of harm.

I very much recognise the concerns of the public and victims about the use of the powers, and I emphasise that protecting the public remains my absolute priority. That is why I have added extra protections and safeguards to the statutory exclusions that exist in the legislation that Parliament passed last year. Only prisoners who are serving sentences of less than four years and who are due for release within 180 days following the date on which the regulations come into force will be eligible for release. Modelling suggests that the majority of those who are eligible for release will be within 90 days of their earliest date of liberation and will be serving sentences of less than two years.

Will the cabinet secretary take an intervention?

I will give way, for the last time, to Ms Chapman.

Maggie Chapman

I put on record that the Scottish Greens will be supporting the instrument at decision time, because we, too, are concerned about the safety and wellbeing of our prisoners and the people who work in our prisons.

I ask the cabinet secretary to say a bit more about the modelling. What modelling has been done on the impact of the regulations, particularly on the safety and wellbeing of women and other vulnerable prisoners?

Angela Constance

Some of the modelling that I shared with the Criminal Justice Committee—which was based on work that is dated 10 June, so it is indicative and can change—indicated that 70 women would be eligible for release, which is 31 per cent of the sentenced female population. In comparison, 11 per cent of the sentenced male population is eligible.

Further with respect to safeguards, prisoners who are subject to the sex offenders register are not eligible. Prisoners who are serving a sentence for domestic abuse offences are not eligible. Prisoners who have previously served a sentence for a domestic abuse offence, if it is unspent, are not eligible. Prisoners who are subject to non-harassment orders are not eligible either.

Further, a governor veto applies, which allows governors to prevent the release of an otherwise eligible prisoner if they consider that the prisoner would pose an immediate risk to a specific individual or group. Governors will access a range of risk-relevant information from police, social work and other partners to inform that decision.

I very much recognise that the provision of information to victims is a particular concern. Victims who have signed up to the victim notification scheme will automatically be notified, and we are working with victim support organisations to increase other victims’ awareness of how they can access information if that is what they want.

Will the cabinet secretary give way?

Angela Constance

No, thank you.

The regulations name four victim support organisations that can receive information about the release of a prisoner if the victim in that prisoner’s case has given consent. That is intended to support a more trauma-informed approach.

Using emergency release is not a decision that I took lightly. I would not be asking Parliament to approve the regulations if I did not think that this action was necessary to keep our prisons safe. I know that, at the end of the day, we all want the same thing—fewer crimes, fewer victims and safer communities. What happens in our prisons is a matter of profound public interest. Prisons are there absolutely to punish and protect, but they are also there to rehabilitate and reintegrate, and that has a direct bearing on public safety.

We have 3,000 Scottish Prison Service staff, including operational staff and prison officers. Each and every day, they put themselves on the front line for us and the communities that we seek to serve. They need to know that we have got their back; they need to know that help is coming. Members can quite rightly critique the past—believe me, I do—and we will indeed debate the future. I know very much what MSPs are against, but we now need to show, going forward, in the not-too-distant future, when we return to Parliament after recess, what we are for. The question tonight is: what are we prepared to do now?

Finally, I will remind members of the letter that I received from the Prison Governors Association Scotland, which told me that its members are

“‘only just coping’, and remain concerned that emergency action will only be taken when something goes significantly wrong.”

What we must do now is prevent something from going significantly wrong.

The Presiding Officer

The question on the motion will be put at decision time.

The next item of business is consideration of nine Parliamentary Bureau motions. I ask Jamie Hepburn, on behalf of the Parliamentary Bureau, to move motions S6M-13586 to S6M-13594, on approval of Scottish statutory instruments.

Motions moved,

That the Parliament agrees that the National Health Service (Scotland) Act 1978 (Independent Health Care) Modification Order 2024 [draft] be approved.

That the Parliament agrees that the Healthcare Improvement Scotland (Inspections) Amendment Regulations 2024 [draft] be approved.

That the Parliament agrees that the Carer’s Assistance (Carer Support Payment) (Scotland) Amendment Regulations 2024 [draft] be approved.

That the Parliament agrees that the Scottish Pubs Code Adjudicator (Duty to Publish Certain Information) Regulations 2024 [draft] be approved.

That the Parliament agrees that the Scottish Pubs Code Adjudicator (Miscellaneous Listings) Order 2024 [draft] be approved.

That the Parliament agrees that the Scottish Pubs Code Regulations 2024 [draft] be approved.

That the Parliament agrees that the Tied Pubs (Scottish Arbitration Rules) Amendment Order 2024 [draft] be approved.

That the Parliament agrees that the Tied Pubs (Fees and Financial Penalties) (Scotland) Regulations 2024 [draft] be approved.

That the Parliament agrees that the Protected Trust Deeds (Miscellaneous Amendment) (Scotland) Regulations 2024 [draft] be approved.—[Jamie Hepburn]

The question on the motions will be put at decision time.