Seòmar agus comataidhean

It is data protection. We have obligations under data protection and information governance.

Yes. Good afternoon to everybody who is present at the committee and in the public gallery.

The Scottish Prison Service has considerable experience in the management of people in its custody, as well as a duty of care for those people, and its policy upholds its responsibilities to deliver safe, secure and suitable services for all. Although the management of everyone in custody is an operational matter for the SPS, I welcome the updated policy on transgender people, which has been developed following extensive engagement and careful consideration. The policy makes it clear that a transgender woman who has a history of violence against women and girls and who presents a risk of harm will be admitted to and accommodated in the men’s estate and will not have access to the women’s estate.

I will speak briefly about each of the SSIs. The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2023 will change the prison rules to make it clearer that prison governors have discretion to allow a transgender person to be searched by an officer of their birth sex if it is necessary and proportionate to do so. That will ensure that the health, safety and welfare of the transgender individual and staff are considered in searching decisions. That is necessary to ensure that both the current SPS policy and operations on searching and the updated policy are clearly allowed for in the prison rules and that they are easily understood by those affected.

The discretion will be exercised only for the purpose of protecting the health, welfare or safety of any person or the security or good order of the prison. For example, if there is a risk to the safety of an officer in searching a transgender individual in line with their affirmed gender, the transgender individual will be searched by an officer of the same birth sex as the individual. Amendments are also proposed to make it clear that governors have the discretion to allow a transgender person to be observed by an officer of their birth sex while providing a sample for drug or alcohol testing, if it is necessary and proportionate to do so.

The Gender Recognition (Disclosure of Information) (Scotland) Order 2023 proposes to put beyond doubt that it is not an offence for staff who are involved in offender management to disclose protected information that is acquired legitimately in their official capacity and when required for the purposes of offender management. It is vital that SPS staff, justice social work services, the Parole Board for Scotland and others who are involved in the management, supervision and rehabilitation of people who are charged with or convicted of offences can, when necessary, disclose protected information, whether a gender recognition certificate has been applied for or granted, without risk of committing an offence under section 22(1) of the Gender Recognition Act 2004.

The SSIs, if passed, will come into effect on 26 February 2024, which aligns with SPS plans for implementation of the updated policy.

I am telling you about the advice that I have received since I have been in office, which has come via my officials and the Scottish Prison Service as an executive agency.

I am happy to take that question, convener, if Ms Regan is content with that.

It is vitally important to me, personally and politically, and as a Scottish Government minister, that we view the policy on managing the risks that some transgender prisoners present through the whole lens of the violence against women and girls policy, which is now mainstreamed. A ream of policies, past and present, have informed the underpinnings of the work that has been undertaken.

As a minister, I am always particularly interested in understanding lived experience. The committee might be interested to know that every female prisoner was surveyed on the policy. The survey had a high return rate—around 40 per cent—and there were a number of in-depth semi-structured interviews. What that work said to me was that women in custody were less concerned about living among transgender prisoners where it was safe to do so.

However, what really spoke to me was the fact that the women were more concerned about the Prison Service, as the executive agency, and the Government getting our risk assessment processes right and being alert to, and rigorous about, people who pose a risk. They did not want a blanket policy in that respect, either. I should point out that there is no blanket policy in the UK, by the way; the policy south of the border includes both a strong presumption in favour of the measures that it wants to achieve and measures for exceptional cases.

We must also bear in mind the learning from the report that was published last February, which sets out the challenge in terms of our needing to rebalance the focus on risk. I therefore think it imperative that the focus of the policy, which seeks to prevent people who will harm women from ever accessing the women’s estate, be that we look case by case at everybody who comes through the door and ensure that they are thoroughly and appropriately risk assessed. That is at the heart of the policy, convener: it is about ensuring that people who are at risk of harming, or who want to harm, the women who are in our care are unable to do so.

I should also make a point about the expertise of the Scottish Prison Service in the matter. It was Teresa Medhurst who developed the women’s strategy and the work on pursuing a trauma-informed approach in the women’s estate. By the way, that approach applies to prison staff, too, so we should recognise the expertise that exists not only at officer level but at senior operational level in the Scottish Prison Service. After all, for over 20 years now the service has been caring for transgender prisoners and managing the risks, where they present themselves.

The thing about the new policy that has just been published is that it retains and builds on the core protections that are in the interim policy. The purpose of the policy is to strengthen arrangements by ensuring that the risk management teams within the prison establishment—those multidisciplinary teams—are well supported. As a result of the policy, there is now a very clear and considered approach for exceptional cases.

I know that it is difficult for us all to hypothesise about such exceptional cases, but every policy—even the policy south of the border—has to acknowledge that we have to expect the unexpected and to plan and have a process for dealing with cases that fling up concerns and circumstances that have perhaps not emerged before, or where risk is very low but vulnerability is high. Any policy should have a very clear and rigorous process in respect of exceptional cases.

The policy that we now have includes a very strong presumption to prevent those who want to harm women, or have a history of harming women, from accessing the women’s estate, so we have moved forward.

That was based on advice on information governance and advice on data protection, but I am happy to check whether my colleague from the legal directorate has anything to add that would assist Ms McNeill.

Of course, everyone is free to speak as they wish. However, as you would expect me to say—you would, of course, expect this to be reflected in practice in the SPS—we endeavour, where appropriate and where circumstances necessitate, to respect people’s identities.

I will explain my view on that. Given my exposure and visits to, and involvement with, prisons, I know that people wish to live and work in an environment in which people are respectful to one another. That helps to create a more secure and safer environment for everyone, as it helps relationships.

I will give one example from my contact with prisoners and ex-prisoners. They say that, when they are referred to by their name as opposed to by their number, that small measure—or measure that might seem small—is very helpful in securing and establishing relationships.

I stress to Ms McNeill that I would not narrate this as an SPS decision as such, and I would not narrate it as a position that anybody is comfortable with, necessarily. Sometimes, as Cabinet Secretary for Justice and Home Affairs, I feel the frustration of not being able to talk in a more free and frank manner. However, the reality is that, as justice secretary and as a minister in the Government, I have to uphold the law and, if I get advice on information governance or data protection, I have to comply with that, as do public bodies.

I appreciate some of the frustrations around this issue. In many circumstances, it would be far easier, if it was desirable, appropriate or, indeed, legal, to discuss individuals—

Until the statistical release—

Yes.