Chamber and committees

Amendment 11 provides the Parole Board for Scotland with the power to reconsider its decision to release an individual on parole licence in certain circumstances. That directly responds to the points raised by the chair of the Parole Board, John Watt, when he gave evidence to the committee at stage 1. I am also aware that the committee called on the Scottish Government to find a solution to the issue in its stage 1 report.

Mr Watt expressed his concern that the Parole Board would not have the ability to review its decision to recommend the release on parole of a prisoner in the circumstance in which the board had directed that that individual be released on the new temporary release licence until their parole qualifying date and the temporary licence be subsequently revoked. In that scenario, the Parole Board would not have the power to review its original decision, and the individual would move to parole licence at their PQD.

Amendment 11 directly responds to that scenario and provides the Parole Board with the power to review its original decision to release on parole licence. The amendment goes further: it provides the Parole Board with the power to review its decision in relation to the release of prisoners under part 1 of the 1993 act generally. That power is applicable when new information is provided to the board between its decision to recommend release and the point of release and when that information is considered to have a significant bearing on the individual’s suitability for release.

In essence, amendment 11 gives the Parole Board the power to place a pause on the release of an individual in those circumstances, until it can consider the new information and decide whether to review the decision to release. As part of that review, the board could uphold the original decision to release, could uphold it but amend the licence conditions or could reverse the decision.

It is our view that amendment 11 provides an important additional safeguard. As it is intended to enable an independent review by the Parole Board, we have not set out any procedure for those reviews in the amendment. We will further consider whether any change to the Parole Board’s rules might be needed to support that as part of implementation in due course.

Katy Clark’s amendment 11A seeks to amend amendment 11 by removing references to the recall of long-term prisoners released by the Scottish ministers under proposed new section 3AB(1) of the 1993 act—that is, release of a long-term prisoner by the Scottish ministers under the temporary release power provided by section 7 of the bill.

As Katy Clark did not move her amendments to remove the Scottish ministers’ ability to release long-term prisoners on the temporary release licence provided by section 7, I urge her also not to move amendment 11A, which would remove an important safeguard and would result in an inconsistent approach to the review of recommendations by the Parole Board to release prisoners.

I move amendment 11.

I have nothing further to add.

I will begin by setting out why I think that section 8 is important.

Ensuring the security and good order of our prisons as well as the health and safety of prisoners and prison staff is absolutely critical, and it is a responsibility that I take extremely seriously. The emergency prisoner release power in the bill is intended to support that essential principle by providing a means of releasing groups of prisoners if the impact that an emergency situation is having, or is likely to have, puts the security of prisons or the safety or welfare of prisoners or prison staff at risk. That is not a power that I would ever hope to use, and that is not the reason for including it in the bill. It is in the bill because, as the pandemic showed us, we, as a Government and as a Parliament, have to be able to respond to the unpredictable. We must ensure, as far as we can, that the mechanisms are in place for us to respond immediately to emergencies when lives might be at risk. This is one of those mechanisms.

Unlike the United Kingdom Government, which has had such a power since the early 1980s, the Scottish ministers currently have no legal power to instruct early release in order to protect the security of prisons and the safety and welfare of prisoners and staff, other than specifically in response to Covid. As a result, without the provisions in section 8, we would be required to introduce emergency legislation if we needed to respond to an emergency situation in our prisons in order to protect lives—for example, in the event of a major fire in a prison.

I just want to pick up on some of the points that have been presented to Ms Mackay. First, to respond to a point that Pauline McNeill raised, further detail can be set out in the explanatory notes. Secondly, in terms of Ms Mackay’s amendments, it is with respect to people who have 180 days or less left to serve.

Will Mr Findlay outline what role victim support organisations should play in the delivery of a prisoner’s plan?

It is about delivery.

Clearly, it would be used in extremis—that is, in an emergency that had an immediate impact on, and threatened the safety and wellbeing of, staff and prisoners. I suppose that one example would be a major fire that had a major impact on a prison, resulting in its being unsafe.

We have to acknowledge that passing even emergency legislation would take time, and it would be time that we could not afford. The decision to include the power in the bill was not one that we took lightly, and we have included a number of safeguards that, I would highlight, do not exist in other jurisdictions. For example, there are statutory exclusions that prevent certain prisoners from being eligible for release under the emergency power, including those who are serving sentences for sexual offences or who have been convicted under the domestic abuse acts.

Furthermore, amendments 12 and 13, in my name, would extend the existing governor veto. Those amendments would enable the prison governor to veto the release of an individual under the emergency release power if they considered that the individual would pose an immediate risk of harm to

“an identified group of people”,

as well as to an identified individual, as provided for under the bill’s current drafting. That is in direct response to concerns raised by victim support organisations.

I have heard a number of times now that the provision is not necessary, as the powers already exist, but that is not correct. It is true that there is a comparable power under the 2022 act, but that is to be used only in relation to the impact of the coronavirus. Moreover, it is temporary, ending in 2025 at the latest. The release power under section 8 of the bill is designed to be used in an emergency situation that places at significant risk the security and good order of a prison or the health, safety and welfare of prisoners or prison staff.

I now turn to the rest of the amendments in the group. Amendments 90 to 92 and 94, in the name of Rona Mackay, would bring the early release provision in the bill in line with the comparable provision in the Coronavirus (Recovery and Reform) (Scotland) Act 2022 following changes made at stage 3 of the bill process, which responded to amendments lodged by Jamie Greene and Russell Findlay at stage 2 of that process. I agree that amendments 90 to 92 and 94 would strengthen the provision; therefore, the Scottish Government supports them.

Amendment 93, in the name of Jamie Greene, would remove the ability of the Scottish ministers to use the made affirmative procedure for the emergency release regulations. That would significantly impair the Government’s ability to take immediate, necessary and proportionate action to ensure the safety and security of prisons. For that reason, I cannot support it.

The Delegated Powers and Law Reform Committee rightly scrutinised the use of the made affirmative procedure in the bill, and the Scottish Government provided it with further detail to inform that scrutiny. I note that the DPLRC’s response to this committee on the delegated powers memorandum to the bill stated:

“The majority of the Committee is content with the explanation provided by the Scottish Government and accepts the power in principle. The majority of the Committee is also content that the exercise of the power will be subject to the affirmative procedure but may be subject to the made affirmative in specified circumstances and by reason of urgency.”

Therefore, I ask Mr Greene not to move amendment 93.

Amendment 38, in the name of Katy Clark, would entirely remove the Scottish ministers’ ability to direct the release of groups of prisoners in response to an emergency situation. That power is currently available to other jurisdictions in the UK, and it has been for some time. For the reasons that I have set out, I cannot support the amendment, which would remove the Scottish ministers’ ability to release groups of prisoners in response to the impact that the coronavirus has, or is likely to have, on the security and good order of prisons and the health and safety of prisoners and prison staff. Therefore, I ask Katy Clark not to move it.

Section 7 introduces a new temporary release licence for long-term prisoners. The bill does not name the licence, but the term “reintegration licence” is used in the supporting documentation, so I will use that term.

The reintegration licence is intended to operate in two circumstances. The first is in advance of the Parole Board’s consideration of a prisoner at the parole qualifying date or at a subsequent review if they are not released on the PQD. In that circumstance, the Scottish ministers would make the decision to release on the basis of risk assessment and consultation with the Parole Board.

The second circumstance is that release can be directed by the Parole Board when it has recommended that a prisoner be released on parole on the PQD. The board can direct that the prisoner be released on a reintegration licence in advance of that date.

The intention of the provision is to provide the opportunity to support the reintegration of certain long-term prisoners. For example, it will help them to link to community services and to build a relationship with their supervising officer.

In the circumstance in which Scottish ministers release an individual in advance of the Parole Board’s consideration of the case, release on the licence provides the opportunity for structured testing in the community. That will provide further evidence to the Parole Board to inform its decision making.

I will make a few points by way of intervention. I was forgetting that it is not me who will sum up for this group, so I have been sitting here taking notes.

To pick up your earlier point, in essence, the provision is about risk to life. If we had time to reconvene the Parliament, contact the committee and get on Microsoft Teams, the decision would not be one for this power.

It is imperative that we have this debate and discussion now, during peacetime—if I can use that word—as opposed to scrambling around and trying to pull together emergency actions that might or might not be underpinned by emergency powers.

As I have outlined, section 8 states that an “emergency situation” is one that places at significant risk

“the security and good order of a prison”

or

“the health, safety, and welfare of prisoners”

and staff. In essence, this is about life and limb.

On Ms McNeill’s point about regulations, we could narrow things in relation to who could be released. We will continue to engage with members and victim support organisations on that point. I hope that that is helpful.

Thank you. In relation to the operation of prisons, I appreciate that this is difficult, because we are trying to future proof without knowing what specific disasters could come down the track. However, if a prison did not have the space or capacity to safely look after all the prisoners, and if that was of significance in that there would be a risk to the health, safety and life of staff and prisoners in the event of a fire, resulting in the absolute necessity to release some prisoners, surely we would want to release prisoners who presented a lesser risk? That is part of our work to—