Official Report 893KB pdf
Sexual Offences Act 2003 (Notification Requirements) (Scotland) Amendment Regulations 2025 [Draft]
Our next item of business is the consideration of two affirmative instruments: the Sexual Offences Act 2003 (Notification Requirements) (Scotland) Amendment Regulations 2025; and the Management of Offenders (Scotland) Act 2019 and the Prisoners (Early Release) (Scotland) Act 2025 (Consequential Modifications) Regulations 2026.
We are joined again by the Cabinet Secretary for Justice and Home Affairs, and I welcome to the meeting Suzanne Lyle from the family law unit, Graham Robertson from the public protection unit and Louise Miller from the legal directorate, all at the Scottish Government. I refer members to paper 5 of the meeting papers and thank those bodies that provided additional submissions to us in relation to this Scottish statutory instrument and the next one.
I intend to allow up to 20 minutes for our consideration of the SSIs. I invite the cabinet secretary to make opening remarks on the Sexual Offences Act 2003 (Notification Requirements) (Scotland) Amendment Regulations 2025.
Thank you for the invitation to speak to these amendment regulations.
The Social Offences Act 2003 and the subsequent Sexual Offences Act 2003 (Notification Requirements) (Scotland) Regulations 2007 were introduced to make people safer and to manage and mitigate the risk that is presented by those who commit sexual offences. Those who are convicted of an offence that is included in schedule 3 to the 2003 act are subject to notification requirements. The process of notification involves meeting a prescribed set of requirements for the information that an offender must provide to the police during their notification period. That includes information such as their date of birth, national insurance number, address, passport and bank and credit card details. There are also wider risk assessment and risk management planning arrangements in place for that cohort, all of which are managed under MAPPA, the multi-agency public protection arrangements.
The proposed regulations will add a new notification requirement relating to gender recognition certificates. When an offender who is subject to notification requirements makes an initial notification to the police, they will be required to provide information as to whether they are in the application process for a gender recognition certificate, or have obtained a full gender recognition certificate since the date of conviction.
The Scottish ministers committed to that measure during the passage of the Gender Recognition Reform (Scotland) Bill. Although the Government always recognised the considered risk of public protection harm in that area to be low, and the bill has not been commenced because it could not go to royal assent, we are implementing this change as we committed to, in recognition of the bill. The information will be made available routinely to Police Scotland, which can weigh its relevance to risk accordingly.
All the existing measures that might allow Police Scotland to act in relation to the GRC applications process remain unchanged. If an application were in progress, there would be nothing to stop the police from writing to the gender recognition panel, which could consider whether the fixed criteria in the act for granting or refusing an application were met. This measure is not a barrier to anyone who is seeking a gender recognition certificate; it is an additional notification requirement for those who have been convicted of a relevant offence.
In developing the regulations, I have met Scottish Trans to seek to allay any fears that the wider transgender community may have. My officials have met Police Scotland to discuss the operational elements of policing the requirement.
I am happy to answer any questions.
Thank you, cabinet secretary. I invite questions from members.
I would like a brief clarification. Cabinet secretary, you talked about the fact that, under the notification requirements, a registered sex offender is already required to notify the police of a certain range of details—and you set out what they were. This SSI will add information on any application for a gender recognition certificate or on the issuing of a full GRC. This might be to do with the definition of the relevant start date—you talked about that being the date of conviction—but can you clarify: is the offender required to notify the police if they already have a GRC prior to the date of conviction?
Given the technical aspects of the question, I will refer to my notes, if you do not mind. Where an application is in progress, the police could write to the gender recognition panel to detail their concerns and would require to have a clear reasoning for doing so. I am not sure that that answers your question—apologies. I am checking with my officials.
I think that Mr Kerr’s question is in relation to whether a registered sex offender who is already in receipt of a gender recognition certificate prior to conviction is still required to notify the police.
Exactly.
We are on the same page. The answer to that is no. Those who have committed an offence only need to notify the police of an outstanding gender recognition certificate application. Where it has not been finally determined at the relevant date, or is made after the date, or where a full GRC is obtained on or after the date, the relevant date is set out in the Sexual Offences Act 2003 and is normally the date of conviction.
I understand. Thank you.
I think that she did say this, but I ask the cabinet secretary to reaffirm that there is no conflation at all between the general trans community and those individuals who are on the sex offenders list, and that the instrument does not concern trans people generally.
It is really important that we do not conflate the two. The trans community is a very small, minority community. As with all of us, the vast majority of those individuals will be law-abiding citizens. The notification requirement is with respect to people who have committed sexual offences and the range of information that they must provide.
As I said in my opening remarks, I had a meeting with Scottish Trans, which has come to the view that it is reasonable and appropriate for the police to be informed on whether a sex offender is applying for a GRC.
I understand that the SSI is about all the other notification requirements in relation to sex offenders. That is what we are dealing with here. Any information about that offender is vital, so that we know where they are, because that is the purpose of the register. Your answer to Liam Kerr’s question on people who already have a GRC certificate was helpful. That would be consistent with the 2003 act, which I know quite well—believe it or not, I scrutinised it at the time and actually remember it.
I have a similar question. Even if someone is not going through the process of applying for a GRC, there is the requirement to notify if there has been a change of passport. Would the same apply? It might not. My understanding is that the reason why it applies is that, under the 2003 act, you change your gender for all or most purposes, so there would not be a requirement prior to conviction. However, the notification that you have changed your passport name is not covered by the same legislation, if you see what I mean.
I will start, and Graham Robertson can continue. I want to try to keep this as simple as possible. In relation to notification requirements, there is obviously the initial notification following an offence, and people are required to submit a range of information to the police. There are also requirements for people who change their information; Graham Robertson can add to that. We are also looking at further measures in the Crime and Policing Bill. The interactions between the different kinds of legislation are quite intricate, so I will pass you over to Graham Robertson, if you do not mind.
12:15
The cabinet secretary has really answered the question. There is an initial notification when the information is provided, and then the person is obliged to let the police know if the information changes. For example, if their passport changed, they would have to notify the police.
Let us say that someone changes their documentation prior to them being put on the sex offenders register. Do they have to give the police that information?
The regulations are framed from the point of conviction, which is when a number of other risk assessment processes kick in, such as social work background reports and various other things like that. Where there is information in any offending history that is relevant to risk—again, we are not saying that this is likely to be information that is highly relevant to risk—it can be captured in those background reports and be available to all the MAPPA partners for the risk assessment and risk management planning that follows.
And that is about risk to victims and the public.
Whatever form risks take, if the fact of the gender recognition certificate is relevant to their management, it will be available so that they can be managed accordingly.
I think that I understand what you are saying about having the relevant information so that the risk can be assessed and I can only presume that the risk is being assessed because someone has been put on the sex offenders register because they pose a risk to the public, so the information is relevant to the management of that. That is the only way it makes sense to me.
All sex offenders automatically have notification arrangements, irrespective of the risk level, by virtue of their conviction.
So the risk is something else.
As a result of having notification arrangements in place, a person would be brought under MAPPA, and MAPPA processes will involve individualised assessment of the risk that is particular to that person.
So, in answer to Liam Kerr’s question, if someone has a GRC prior to them being on the sex offenders register, there is not a requirement to notify, but if it is not a GRC but just a change of documentation, it depends on the assessment that is done at the time.
The change to the regulations will cover the point from conviction before notification, so it might cover periods of time when people are in custody prior to release, for example. It is any change made prior to notification kicking in, if that makes sense.
Cabinet secretary, you said earlier that an application will go to the gender recognition panel and it could be refused if the panel has grounds for concerns. What would those concerns be and why would the application be refused?
One of the concerns about somebody changing their details when they are a sex offender is that they could go missing when people are doing checks, which is an issue that some lobby groups have highlighted. Do the regulations address those concerns?
The SSI adds a requirement for someone to notify the police if they apply for a gender recognition certificate when they have been convicted of a sexual offence that requires notification. There is a list of information that they would have to notify the police of. The SSI adds to the long list of information requirements that people have to adhere to a requirement for that person to notify the police if they apply for a GRC. The SSI is focused and specific, and I am not sure what other concerns you are referring to, Ms Dowey.
It is about what happens if somebody is doing a check for a person who has changed from a he to a she, for example. Have any lobby groups said that it would be a concern for them if somebody is getting a GRC after they have been convicted of a sexual offence? I am just wondering what the grounds for refusing the application are. You said that such an application would go to a GR panel and it could be refused if there are grounds for concern.
The SSI will not change the process for obtaining a GRC. The chair of the panel, like Scottish Trans, is supportive of the SSI. If, based on the wider risk assessment, the police had concerns about someone who had applied for a GRC, they could write to the gender recognition panel, which is a UK tribunal. There are certain considerations that the panel has to assess in terms of legal requirements and issues that are germane to the individual.
As there are no further questions, our next item of business is the consideration of a motion to approve the affirmative SSI on which we have just taken oral evidence.
Motion moved,
That the Criminal Justice Committee recommends that the Sexual Offences Act 2003 (Notification Requirements) (Scotland) Amendment Regulations 2025 [draft] be approved.—[Angela Constance]
Motion agreed to.
Are members content to delegate responsibility to me and the clerks to approve a short factual report to the Parliament on the affirmative instrument?
Members indicated agreement.
The report will be published shortly.
We will have a short suspension to allow for a change of officials.
12:22 Meeting suspended.Management of Offenders (Scotland) Act 2019 and the Prisoners (Early Release) (Scotland) Act 2025 (Consequential Modifications) Regulations 2026 [Draft]
We turn to the second affirmative instrument. From the Scottish Government, I welcome to the meeting David Doris, who works on prison policy in the community justice division, and Hannah Hutchison, from the legal directorate. I refer members to paper 6.
Before the cabinet secretary gives her opening remarks, I refer members to the comments that were made by the Delegated Powers and Law Reform Committee at its meeting on Tuesday this week, when it considered the instrument. The DPLR Committee wanted to alert our committee to the fact that it has reported the instrument on the grounds of an “unusual or unexpected use” of the powers conferred by the parent statute. The DPLR Committee is concerned that the instrument makes provision for ministers to make further changes by regulations, and noted that it is unusual for subordinate legislation to grant ministers powers to make further subordinate legislation. I ask the cabinet secretary to cover those points in her opening remarks.
If any member would like to see it, we have a copy of the DPLR Committee’s report, which has just been published. I invite the cabinet secretary to make some opening remarks on the instrument.
In due course, I will take a moment to address the point that the DPLR Committee raised.
We propose to use existing legislative powers to amend legislation in order to align arrangements for the removal of foreign national offenders from prison with other release legislation in Scotland.
The Management of Offenders (Scotland) Act 2019 and the Prisoners (Early Release) (Scotland) Act 2025 (Consequential Modifications) Regulations 2026 is the first of two instruments relating to early removal of foreign national offenders. I announced our intention to introduce them during a statement on the prison population on 2 October.
On the DPLR Committee’s reflections, I agree that using consequential powers in an act to create a subordinate legislation-making power is “unusual”, and that, ordinarily, it would not be desirable. However, on this occasion, we have done so because it is one of the various measures that we are taking forward to help alleviate the prison population issue.
The purpose of the instrument that the committee is considering today is to facilitate the earlier removal from prison of prisoners who are liable for removal from the United Kingdom on immigration grounds or who have the settled intention of residing permanently outside of the United Kingdom once removed from prison.
The instrument will align the provisions that are being amended with other aspects of release legislation in Scotland, and it will help to enable the earlier removal of those prisoners, which, in turn, might help to mitigate the high prison population.
If approved by Parliament, the instrument will change the release point from which early removal arrangements work, in order to align it with the automatic early release point for short-term prisoners, as changed by the Prisoners (Early Release) (Scotland) Act 2025, which amended section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. The period in which early removal is possible will be calculated from the applicable automatic release point for short-term prisoners, which was amended earlier this year, rather than the previous automatic early release point, which was when 50 per cent of a sentence had been served.
If approved, the instrument will also add to the existing order-making power that is contained in the provisions to allow Scottish ministers to change, by order, the minimum period of sentence that must be served before a prisoner can be removed from prison for removal from the UK.
It is planned that, under that order-making power, a separate instrument will be laid in January. That instrument will propose an amendment to the number of days prior to the prisoner’s automatic release point within which the prisoner can be removed. If the instrument is approved, it will also change the minimum period of sentence that has to be served before a prisoner can be removed from prison for removal from the United Kingdom.
The second order will align the release provisions with recent changes that were approved by this Parliament to home detention curfew, which is not available to prisoners who are liable for removal from the UK. The minimum amount of a sentence that will have to be served will be 15 per cent, rather than one quarter, and the number of days would change from 180 to 210. These changes would provide a greater and earlier timeframe for removal from prison for the purpose of removal from the country.
I hope that the committee is content to approve the instrument, which helps to provide greater cohesion with regard to sentence management arrangements as they apply to short-term prisoners. It might also help to mitigate the high prison population, albeit in a limited way.
Thank you very much, cabinet secretary. It is regrettable that the updated information from the Delegated Powers and Law Reform Committee has been provided at relatively short notice. However, I am keen to invite questions from members, and I will bring in Katy Clark first.
12:30
I am a member of the Delegated Powers and Law Reform Committee, and we discussed the issue at great length yesterday. We were looking at it from a technical rather than a policy point of view, so my questions will relate to the technicalities rather than to the policy. It was concerning that there were a number of grounds on which issues were raised about the way that the SSI has been drafted—those were not in any way to do with the policy intent.
Given that the issue was discussed only yesterday in the Delegated Powers and Law Reform Committee, I suspect that the cabinet secretary may not have had the opportunity to read the report, because it has just been published. I do not know what discussions have been taking place behind the scenes, but it seems regrettable that the Scottish Government has drafted the statutory instrument in the way that it has done, if it was possible to obtain the same policy outcome in a different way.
The committee concluded that
“the creation by subordinate legislation of a new power to make subordinate legislation is unusual, and is generally undesirable because Parliament is unable to scrutinise and amend the proposal in the way it would if proposed in a bill.”
It also concluded that
“using an ancillary power to create a new power to make subordinate legislation is particularly unusual”.
It made that point in a number of ways at a number of points in the report in relation to different aspects of the drafting. Has the cabinet secretary had the opportunity to look at the issue properly, given the timescales?
This is not about the Scottish Government’s policy intent—it is just about the drafting. If it was possible for the legislation to be drafted in a different way, that would seem to be preferable.
I am grateful to Ms Clark. I note that she serves on the DPLR Committee, which is not a committee that I have ever had the pleasure of serving on.
I assure Ms Clark that I have had more than one discussion with my officials on what is, I admit, an unusual approach. I am not at all surprised by the DPLR Committee’s commentary.
I will not reiterate the policy intentions, because members will understand where we are with the prison population and the necessity for further action—I think that we all agree on that. There is no one solution to managing our prison population—there are many solutions—and every initiative and effort counts in that regard. In a moment, I will hand over to Ms Hutchison to comment on the more technical points.
Taking this forward through primary legislation is, of course, technically possible, notwithstanding that we are running out of time in this parliamentary session. I would be concerned about the time that it would take to make similar provision and the delay that that would cause. For me, the approach to finding a route forward for the policy change with regard to foreign national offenders is a pragmatic one. Given that we have the power to make that change through an SSI, I have chosen to use it, as it represents, in my view, the most efficient and effective way to enable the early removal of foreign national offenders from our prisons as soon as possible.
I am confident that Parliament has nevertheless been given what I would consider a meaningful opportunity to scrutinise our proposals with both this SSI and the one to follow, given that they are subject to affirmative procedure. That comes with an opportunity for the committee to take evidence, prior to Parliament being given the opportunity to approve the instruments as part of the process.
I will ask Ms Hutchison if she has anything further to add, for Ms Clark’s interest, on some of the aspects around drafting.
The drafting approach was taken to mirror what has been done for the HDC provisions, in connection with the changes under the 2019 act. If further changes were made to the HDC provisions to change the minimum period of sentence, the same could be done for the foreign national provisions, in line with that.
First, cabinet secretary, on the point that Katy Clark has just raised—and noting that we are all getting this information in real time—I want to be clear that the SSI before us creates a new power for ministers to change the minimum period of sentence served, but to do so using subordinate legislation, such that neither the power’s creation nor its ultimate use would go through full parliamentary scrutiny. That is what is happening here—is that correct?
Yes, in terms of process, but—and I say this with respect—the committee is here today to scrutinise the instrument. I accept that the process is unusual, but I have a prison population issue to address. However, what you have outlined as to the purpose of the SSI is correct.
I understand the point that the cabinet secretary is making, but the process feels uncomfortable, particularly in the context of this week, when we are addressing legislation that was fundamentally flawed when it was passed by the Parliament, even after full scrutiny. That is something that concerns me more widely, so I make that point.
On the SSI that is before us, we have received submissions—from the likes of Victim Support Scotland—which, as ever, have been very helpful. Based on that, I will put a couple of questions to you. Will prisoners in the cases concerned be included in the victim notification scheme? If so, what information will be available to the eligible victims?
Yes, under the victim notification scheme, victims can be notified about the release of prisoners. It is my understanding that, as removal from the UK is a reserved matter, victims would not be notified of the actual removal from the country. However, Mr Kerr and others will remember the amendments on the governance of the victim notification scheme in what is now the Victims, Witnesses, and Justice Reform (Scotland) Act 2025, which will better allow those responsible for the removal to work with the Scottish Government to help victims receive more meaningful information, to the extent that that is possible under devolved law.
There are currently limitations, and we will try to address the issue as far as we can, within our powers and under the legislation that we have recently passed, while seeking to engage the UK Government on it. I accept that being notified of partial information will be deeply unsatisfactory. If someone receives a notification that the perpetrator in their case has been released, that may well cause anxiety, and that anxiety would be unnecessary if the person knew that the perpetrator was subject to other procedures that meant that they were being removed from the country.
I call Jamie Hepburn, to be followed by Pauline McNeill.
Going back to the issue that has been flagged up to us by the Delegated Powers and Law Reform Committee, I seek some clarification of what Hannah Hutchison has just said about the intended purpose of the regulations. They are fairly narrowly defined and, if I have understood them correctly, they seek to ensure a consistency of approach between UK and foreign nationals. Is that right? Have I understood that correctly?
Foreign nationals who are liable to removal from the country are not entitled to HDC. So, in that sense, yes, because foreign nationals who are liable to removal cannot get HDC.
That was helpful.
Clearly, this is a novel process, although it is not without precedent. I do not particularly like the terminology, but it is an example of the Henry VIII powers stuff that we have previously debated more widely. I, too, have not been a member of the Delegated Powers and Law Reform Committee, but I have had the pleasure of appearing before it, and have discussed many of these issues.
Notwithstanding the fact that this might be a novel way of creating a delegated powers-making process, can you clarify that any changes that might be sought would still have to come back to Parliament, and that, if they were more substantive, they would be subject to the affirmative procedure; otherwise, they would be subject to the negative procedure, under which the instrument in question could still be annulled? Will Parliament be able to accept or reject any changes in the usual way?
That is my understanding. It has happened before with other SSIs in which I have brought forward action in relation to the prison population. Parliament has exercised its right to send instruments to the chamber, to be debated and voted on.
You asked about home detention curfew. I appreciate that this is confusing, because we are talking about alignment with other legislation and other early release provisions, such as the short-term prisoner 40 programme and home detention curfew. This measure is essentially about the removal of foreign nationals; therefore, the alignment does not connect in a real-world way, because foreign nationals are not eligible for, say, home detention curfew. It is all about alignment in relation to calculating eligibility for early removal from our prison estate.
I understand and appreciate that, but the bottom line is that nothing is being done here that will create a new process whereby the Government can just put in place a rule without any recourse to Parliament. Parliament will still have the ultimate say.
That is right.
Good afternoon. I know that you have answered a lot of questions, but I have to be honest and say that I do not know whether I have understood all of this.
I think that I am right about this, but when you met and had a conversation with the Opposition parties about prison numbers, you mentioned a figure of about 600 foreign nationals, or thereabouts, in Scottish jails. I suppose that that is a significant number.
Are you looking for an update?
If you have one, yes.
There is a significant number of foreign nationals in our prisons—the latest figure that I have is 723. However, not all of them will be eligible for the early removal scheme, given that it applies only to those serving less than four years. The figure for those in the short-term population who might be eligible—after all, there are various statutory exclusions—is around 119.
Ah. Right.
We have talked about this before, but when you get into different categories of prisoner, you are talking about a whole different process. Today is perhaps not the day to be going into extradition arrangements and country-to-country negotiations.
Are those 119 prisoners eligible for early release now or not?
12:45
That will depend on their offence. There are exclusions—
Is it the same as—
It is the automatic early release point that is relevant to the individual prisoner, which relates to their offence or existing statutory exclusions. If the automatic release point is 50 per cent or 40 per cent, we are not changing that—that legislation has been passed.
I will perhaps ask officials to put this into plain English, but if, for example, someone is due to be released at 40 per cent of their short-term sentence, we will be able to release them earlier, back to their own country. Is that right?
Yes.
Is that in plain English enough?
Yes.
Our papers say that inclusion is
“subject to the requirement that they are liable for removal”
with the
“intention of residing permanently outside the United Kingdom”.
Who establishes their stated intention?
Some of that will be due to their legal status.
There are two categories: prisoners who are liable to removal on immigration grounds; and prisoners who are eligible to be released early because they have the settled intention of residing permanently outside the UK. The second category can include British prisoners, if they do not intend to come back to the country.
How do you establish their stated intention? I presume that you have to do that.
We will need to write to the committee about that.
That seems to me to be tied in. You are releasing them, but somebody has to check their stated intention to reside permanently outside the UK in order to establish that, do they not?
There has to be an assessment process, in the same way that assessment processes underlie the vast majority of decisions in the justice system. I do not know whether David Doris can add to that on an operational level.
It is a joint piece of work between the Scottish Prison Service and Home Office immigration enforcement colleagues. There will be an exchange of information.
It is also important to point out that the scheme in Scotland, at the present time at least, is based on consent. Individuals have to agree that they want to be removed, after which the engagement would happen. There are two parts, almost: there is the agreement about early release from prison; and then there is the removal part, which goes through the UK process. It is covered through a guidance arrangement for prison governors that is in place but which would be refreshed and updated.
Presumably, there would be transfer arrangements. Somebody could say, “I am not going to stay in the UK,” and you would release them, but I presume that there is a process, in case they changed their mind.
The power that we have is to transfer prisoners. This is stating the obvious, but I do not have the power to remove them from the UK.
When they leave prison, is there a process to transfer them somewhere else?
Yes. They are not liberated to make their own way to an airport or a UK immigration detention centre, or anything like that.
These are short-term prisoners, I suppose, but I am thinking of the victims of the crimes that they have committed. I do not know what the range of crimes might be, but I suppose that they are medium to low-level crimes. For the sake of completeness, is it the case that they would go back to their home country and that that would be the end of the matter?
There are automatic exclusions. Examples of such exclusions include: if the prisoner does not consent; if they are subject to notification requirements under part 2 of the Sexual Offences Act 2003—that is, if they are a registered sex offender; if they are subject to an extended sentence; or if they are subject to a supervised release order. Those exclusions are to ensure that, where the court has decided that there is an elevated risk and a short-term prisoner needs a supervised release order once they are out, such prisoners are subject to an extended sentence or have to be part of sex offender notification—
You would have no control over that if they were—
No. They are automatically excluded.
Thank you.
Katy Clark wants to come back in.
I have a final question. The cabinet secretary said that she had the full opportunity to consider the Delegated Powers and Law Reform Committee’s report. One point that was raised relates to the Scottish Government’s policy intention behind the introduction of the new power, which is to enable the time periods for release on home detention curfew or for release for removal from the UK to be fully aligned. However, the DPLR Committee has raised the issue that that is not necessarily how the proposed new power has been drafted, because it is not limited to enabling that alignment. Has the cabinet secretary considered whether the drafting of the legislation is wider than the policy intent? Has she taken advice on that? That point was made in the DPLR Committee’s report.
As I said earlier, officials proactively came to me to discuss the content of the DPLR Committee’s report. I have not looked in detail at the concerns to do with the drafting of the instrument, although officials have certainly raised all those issues with me.
I will ask Ms Hutchison and other officials to answer any questions on drafting. I am not a lawyer—I am all about the policy and the intent. I have a prison population that I need to address and, if you will forgive me, that is my priority, notwithstanding the importance of the issue.
If concerns are being raised with the drafting and, indeed, with the legality of the SSI and whether there is a gap between the policy intent and the drafting, it is appropriate that the Scottish Government—
I am not—
Is that something—
I am not conceding that point. The information and advice that I have had is that, although the DPLR Committee and members have raised concerns, I am not aware of any suggestion that we are acting outwith our legal competence or are engaging in any illegality.
My first question earlier on, however, was to ask whether you had the opportunity to consider what the DPLR Committee report said. My understanding is that you feel that you have had that opportunity. I am now asking whether you have had the opportunity to consider the particular point that was made about the drafting being wider than the policy intent. I am quite happy for an official to be brought in on that technicality, if that would be helpful.
I take advice from officials on drafting. Ms Hutchison, do you have anything to add?
Given the nature of the issue, it would be helpful to get on record the Scottish Government position.
We have mirrored the position that is in section 3AA to provide the same order-making power. Should that be exercised again, it would be possible to do the same here.
When you refer to section 3AA, are you referring to the instrument or to the 1993 act?
I am referring to section 3AA of the 1993 act.
I understand. Okay—that is fine. That did not go through a full scrutiny process, because it was a later amendment. You are satisfied that you are simply mirroring the previous legislation.
I will make a small additional point. The cabinet secretary has made clear the policy intention for the second SSI, so we are making clear the scope of the planned change in relation to that. Although there is a mirroring component, the policy intention for what the change would be in practice has been spelt out in advance of the second SSI, which will be forthcoming.
Before we move on to consider the motion, I am conscious of the fact that we find ourselves in a rather unusual position, in that we have had very short notice of the DPLR Committee’s report in which it outlines its views on the technical aspects of the SSI.
I am content, on the basis of the information that was provided in the papers, and from the questions and answers today, that the policy content of the SSI is sound. However, before we proceed to considering the motion, it is appropriate that I ask whether members wish to continue to do that now. Are members content with what we have discussed and heard in the responses from the cabinet secretary? If not, we would have to defer consideration of the motion to a later date.
In any case, it would clearly be appropriate that we include our views on the DPLR Committee’s consideration of the SSI in the report that we prepare following our consideration of the motion.
As I said, I am content to proceed to consider the motion, but I ask members to indicate whether they, too, are content. I ask members who are content to proceed to raise their hand. I see five members who are in favour of proceeding to consider the motion; the other three are opposed to doing so.
I am broadly content in my understanding of what the SSI is about, and I am happy with the cabinet secretary’s answers to my questions. However, I confess that I feel as though there is too much happening in a short space of time to satisfy myself that I understand everything that is going on here. The home detention curfew issue, for example, is not explained properly in our papers—for me, anyway; I am struggling to get my head around that. Due to the Delegated Powers and Law Reform Committee’s report, we as a committee need to be satisfied that we are not setting a precedent that we cannot justify.
I am in two minds about this, but other members are not so minded, so I am not too upset about that. I just feel really uncomfortable, as Liam Kerr did at the beginning of our consideration of the SSI, about getting to a point at which I am scrambling around saying, “Have I ticked all the boxes here?”.
I am not trying to give us more work. What has been said does make sense, but I am left thinking that I would have liked to have understood the home detention curfew alignment issue before I arrived at the meeting, without having to spend the whole time thinking it through in my head. For the purposes of being cautious, I would have preferred to defer, but I accept that that is not the view of most members.
Thank you. That is helpful, and it is on the record.
On the basis of members’ views and the opportunity that we have to express our views on the DPLR Committee’s report, I am content to continue and to move to consideration of the motion. However, we will very clearly set out the concerns of the committee with regard to the more technical aspects of the process.
Our next item of business is consideration of the motion to approve the affirmative SSI on which we have just taken oral evidence. I invite the cabinet secretary to move motion S6M-19681 and to make any brief additional comments that she wishes to make.
13:00
In moving the motion, I want to put on record my appreciation of the committee’s time and scrutiny of the policy and the issues that have been raised by the DPLR Committee. I have listened carefully. I know that members around this table have an understanding of the gravity of the situation that is faced in our prisons, and that they also understand that the Scottish Government is working hard to pursue as many initiatives as possible so that we have a full range of action to alleviate the very stressful position in our prison service today.
Motion moved,
That the Criminal Justice Committee recommends that the Management of Offenders (Scotland) Act 2019 and the Prisoners (Early Release) (Scotland) Act 2025 (Consequential Modifications) Regulations 2026 [draft] be approved.—[Angela Constance]
Motion agreed to.
Are members content to delegate responsibility to me and the clerks to approve a short factual report to the Parliament on this affirmative instrument?
Members indicated agreement.
The report will be published shortly.
13:01 Meeting continued in private until 13:05.Air ais
Pre-budget Scrutiny 2026-27