Skip to main content

Language: English / Gàidhlig

Seòmar agus comataidhean

Meeting of the Parliament

Meeting date: Wednesday, January 25, 2023


Urgent Question

Scottish Prison Service (Gender Identity Review)

The Deputy Presiding Officer (Liam McArthur)

The next item of business is an urgent question. If a member wishes to ask a supplementary, they should press their request-to-speak button or indicate that in the chat function.

Russell Findlay (West Scotland) (Con)

To ask the Scottish Government whether it will provide an update on the Scottish Prison Service’s gender identity and gender reassignment policy review?

The Cabinet Secretary for Justice and Veterans (Keith Brown)

I have asked Teresa Medhurst, the chief executive of the Scottish Prison Service, for an update on the progress of the policy review, and she has confirmed that the SPS’s policy review is being conducted in five stages. The policy initiation stage and the evidence and engagement stages have now been completed, and the policy review is now moving through the analysis, recommendations and authorise, and publish stages. The SPS anticipates the updated policy being published in the coming months. Following implementation, the policy will be subject to on-going monitoring and evaluations.

The Deputy Presiding Officer

Before calling Mr Findlay, I remind members to refrain from discussing the circumstances of any specific cases, particularly any cases that are not yet concluded.

Russell Findlay

Yesterday, a double rapist was sent to a women’s prison—for the legal reasons that you have cited, Presiding Officer, I will need to be careful about what I say. That scenario is exactly what I tried to stop during the passage of Nicola Sturgeon’s Gender Recognition Reform (Scotland) Bill, but my attempt was voted down by the narrowest of margins. Even with the flawed bill in limbo, violent criminals are exploiting the system and putting vulnerable women at risk.

Can the cabinet secretary tell me why his Scottish National Party Government thinks that any rapist should be allowed inside a women’s prison?

Keith Brown

Of course, if the Gender Recognition Reform (Scotland) Bill had passed into law instead of being stopped by another Government—completely wrongly—it would not have changed the SPS’s approach to trans prisoners, which is not dependent on the possession of a gender recognition certificate. The possession of a GRC will continue to have a minimal impact on how the SPS manages transgender people. The important thing is that its process is one that is based on the assessment of risk—[Interruption.]—for the individual, for other prisoners and for prison staff. It has a tremendous track record in dealing with the management of that risk. I would suggest that the SPS is far more expert in assessing and dealing with that risk than any of us in this chamber.

This morning, I visited the SPS to discuss its management of risks in relation to serious and organised crime. The SPS is a fantastic organisation that manages risk every day of the week. It has a great track record in relation to trans prisoners and I have faith in its ability to evolve its policy to continue that track record.

The Deputy Presiding Officer

I encourage members to listen to those asking and answering the questions.

Russell Findlay

That answer was pretty much as expected: the cabinet secretary immediately tries to shift the blame on to someone else, in this case the United Kingdom Government and the SPS, whose professionalism and commitment to public service and the public interest no one doubts.

What Keith Brown knows full well is that his Government has the power to intervene and stop this situation. I suggest that he familiarise himself with the SPS’s rule 15(1), which lets him put this situation right with the stroke of a pen or one phone call. Will the Government agree today to direct the SPS to block that rapist and any others from being sent to a women’s prison?

Keith Brown

It would have made for a more illuminating discussion if Russell Findlay had listened to my answer before going on to his preset next question.

The simple fact is that, as I have said already, I trust the SPS to deal with this. It does not follow the practice in England and Wales, where the process is determined by the presence of a GRC. That is not how it is done in Scotland. In Scotland, if someone has a GRC, it does not give them the right to be transferred to the place of their choice. Here, every decision is carried out on the basis of risk. I trust the SPS to do that.

Of course, the Parliament and I will be interested in the outcome of the policy review. We can have a discussion about the review when it is published. However, as things stand, I trust the SPS, and my faith in it is borne out by its track record. When it has a case of a trans prisoner, all the appropriate assessments—including by health and possibly psychiatric services—are made. That is the right way to deal with these situations. If anyone does not think that it is, they can look at the SPS’s track record in this regard, which is exemplary, as it has ensured the safety of prisoners for many years.

Emma Roddick (Highlands and Islands) (SNP)

Can the cabinet secretary confirm whether the GRR bill changes the process of the SPS in respect of transgender prisoners?

Keith Brown

It is an important point—[Interruption.]—and it bears repetition, because it has not been taken on board by some of those who are asking questions about it and are shouting just now.

The Gender Recognition Reform (Scotland) Bill does not change the SPS’s approach to trans prisoners, which is not dependent on the possession of a GRC. The possession of a GRC will continue to have a minimal impact on how the SPS manages transgender people in its care. Decisions on placement and management are not based solely on the possession of a GRC but are based on a range of multiple factors and thorough individualised assessments. The SPS will retain the ability to place an individual in an estate that does not necessarily correspond to the gender on their GRC if it determines that not doing so would place that individual or others at risk. It is a risk-based approach.

Of course, the GRR bill is not currently in force, so it is not relevant to any current cases.

Pauline McNeill (Glasgow) (Lab)

Does the cabinet secretary accept that ordinary women and members of the public are outraged by the imprisonment of a rapist, who was convicted of two counts of rape, which is one of the most serious charges in the Scottish criminal legal system—

The Deputy Presiding Officer

Ms McNeill, I caution you to refer to the comments that I made earlier about references to particular cases.

Pauline McNeill

The fact that prisoners might be segregated in a women’s jail in the first place speaks to the fact that the very nature of the women’s prison estate is being changed to accommodate that. I agree that it has nothing to do with the GRR bill, because it is about the risk assessment. Would the cabinet secretary consider that that risk assessment is obviously failing in some way, because it is impacting on other women prisoners, who have not been consulted on how they feel about that assessment? I call on the cabinet secretary to assure me that there will be a rights-based approach, which will include the views of women, women prisoners and women who have served time in prisons; that the crime of rape remains a crime that cannot be recorded as being committed by a woman; and that he will consider whether the new risk assessment meets those requirements.

Keith Brown

In relation to the policy review and its outcome, both Pauline McNeill and Russell Findlay have the ability to question that in detail, as members of the Criminal Justice Committee as well as the Parliament.

I confirm to Pauline McNeill that a rights-based approach is taken now. The rights of everybody concerned are taken into account by the SPS. Again, the Criminal Justice Committee can go through the process of inviting the SPS in to ask it about those issues. The approach that we have taken is rights based and assesses the risks that are involved.

As well as that, during the course of the consultation that was undertaken as part of the current review, prisoners, including women prisoners, were consulted on the process, so they will have fed into the outcome of the policy review.

Therefore, I am content with the process that is there just now and I think that the SPS has a tremendous track record. Of course, I want to look at what the policy review comes back with, as will Pauline McNeill and the Criminal Justice Committee. At that point, if we remain dissatisfied, we can ask further questions. I am not dissatisfied—I trust the SPS to do what it is doing in this area, and its track record has shown that it is more than capable of assessing the risks.

The Deputy Presiding Officer

That concludes this item of business. We will have a brief pause before we move to the next item of business.