Chamber and committees

I am clear, as I know that others have been, that ending scheduled liberations on a Friday or the day before a public holiday is the right thing to do. It will enable more people to access on release the support that they need and that will keep them and others safe.

The policy intent behind section 6 is to increase access to those services, including housing, mental health and addiction support, and contact with justice social work. It is common sense, and the proposal itself came from a recommendation from, among others, the Scottish Drug Deaths Taskforce. However, I make it clear to members that this is not an either/or situation; we absolutely have to improve out-of-hours access, particularly to addiction services and family support. At the risk of sounding like a broken record, I think that we really need to bring all the solutions to the table, but this is one practical solution that we can put in place now.

That said, it is clear that, if Fridays and the day before public holidays are added to the existing list of excepted days, more releases will take place on a Thursday. Given that, as the member has said, we do not currently release people on public holidays or the weekend, there is already compression and pressure on Fridays that could then be displaced to Thursdays. That would increase the pressure on both community-based services and the Prison Service on that particular day of the week and would risk undermining the intent behind this provision.

To try to mitigate that impact, then, section 6 also provides that individuals whose release date would ordinarily fall on a Thursday will have their release moved to the nearest preceding suitable date. In practice, that will largely mean their being released the day before—in this case, the Wednesday—although I appreciate that there will be exceptions to that. I also note that section 6 does not seek to move any other dates.

This approach was not decided on some whim; it was—and is—intended to support the underlying principle of section 6, which is to enable people to access the services that they need on release from prison in order to keep our communities safe. Given that, taken together, amendments 68 and 69 would remove that provision, I cannot, for the reasons that I have outlined, support them, and I ask Russell Findlay not to press amendment 68 and not to move amendment 69.

Amendment 71 would require the Scottish ministers to report annually on the distribution of prison releases across the days of the week. Of course, the Government acknowledges that monitoring is important, but the amendment would also require the Scottish ministers to report on whether services were still being provided by the bodies listed in section 34A(2) of the Community Justice (Scotland) Act 2016 to deliver

“the effective release of prisoners on Thursdays.”

A number of non-Scottish Government amendments to part 2 of the bill call for various reports and reviews, and I agree that it will be important to review the impact of the provisions. I am therefore minded to lodge at stage 3 an amendment that will encompass the various asks for reviews in the different sections of part 2 to provide a more coherent picture. I therefore ask Mr Findlay not to move amendment 71.

Will the member give way?

With respect, I point out that we have to be careful not to go from the sublime to the ridiculous. I appreciate that, when providing for future-proofing powers, it is difficult to come up with precise scenarios, but our prison estate includes more than one prison, and we are talking about the operational decisions that the Scottish Prison Service would make in an emergency. If, say, a small prison such as HMP Greenock was out of use, prisoners could, of course, be moved elsewhere. However, in extremis, decisions might need to be made to release some prisoners.

I will make a final point to Ms McNeill by giving the English comparison, although I am not for one minute saying that we should not be debating what I am asking for in a Scottish context. However, by way of giving some contrast, I note that the power in England is very broad, with the secretary of state able to make decisions about the safe use of prison places, whereas the power in Scotland has been built around emergency scenarios. In relation to the limits, it would be eminently sensible to set out in the regulations who could be released in the first instance.

As we have heard, amendment 70 would end automatic early release for short-term prisoners. That would be a significant change to the justice system with associated substantial costs. A change of that level would require careful and detailed consultation and consideration. As much as debate and discussion are very important and welcome, a decision of that magnitude should not be made on the basis of a very short debate at committee during stage 2 of a bill that does not otherwise deal with when short-term prisoners should be released. Moreover, although the matter was raised during the consultation to inform the bill, there was no settled view on it.

Scotland is not alone in having a system of automatic early release; such a system also operates in England and Wales and other jurisdictions in one form or another. Of course, that does not mean that we should not debate and scrutinise our system.

Mr Findlay’s amendment raises important wider issues to do with who and what prison is for. I am most certainly not dismissing the points that he and other members have raised—I recognise that there are very strong views on automatic early release in that it is automatic and not earned or assessed—but, as other members have acknowledged, sentencing is a massive issue and it should always be considered in the round. It might also be helpful if members were aware—as I am sure that they are—that most sex offenders on short-term sentences are released on conditions.

The matters that Mr Findlay has raised should, of course, be discussed, but in more detail and with context. I do not feel that we are able to do that in the time that we have today. Essentially, ending automatic early release would have significant consequences for the justice system and the prison system in particular. Moreover—I am sure that I am just stating the obvious to members—it would have a significant financial impact. Decisions on these issues are not to be taken lightly. They are deep issues that require proper discussion and consultation.

Currently, the short-term prison population is close to 2,100 prisoners. Ending automatic early release could substantially increase the proportion of the sentences that those individuals serve, which would lead to higher prison populations. By way of illustration, I note that, if short-term prisoners served on average five sixths rather than one half of their sentence, the population would be expected to rise by almost 1,400. Given that the estimated annual cost of a prison place is circa £42,000, this unfunded amendment could lead to additional annual costs of around £59 million. Significant capital costs could also be associated with expanding the prison estate to address that increase in population.

I stress that Mr Findlay has raised important points that merit further discussion, but I do not think that we should decide on such a fundamental shift in justice policy and practice without full consideration of all the consequences. There would be risks in doing so. A particular risk that I point out is that, although amendment 70 would result in short-term prisoners being released on licence, it makes no provision for how that would work in practice. It also makes no provision for what would happen if a released short-term prisoner were to breach a condition of their licence. Finally, there is no mechanism for Scottish ministers to take any action to address that; for all other prisoners released on licence, their licences can be revoked and they can be recalled to prison. Those are just some examples to show why these matters should not be decided on here today.

For all those reasons, I ask Russell Findlay not to press amendment 70.

I think that I have been clear about the Parole Board’s responsibilities in relation to the second scenario in which a reintegration licence could be considered. The first scenario that I outlined is when Scottish ministers, through the Scottish Prison Service, in consultation with the Parole Board, would consider the release of certain prisoners. Certain prisoners are excluded, and not on the basis of offence types. Prisoners who are on an extended sentence are excluded, so it is not for life-sentence prisoners or prisoners who are convicted under prevention of terrorism charges. The supporting documentation to the bill highlights that it covers a small number of prisoners—circa 75 to 200. In essence, it is temporary release by the Scottish Prison Service.

The approach that I outlined prior to Mr Greene’s intervention was supported by the chair of the Parole Board, John Watt, when he provided evidence to the committee at stage 1.

I note that Katy Clark’s amendments in the group seek to remove the Scottish ministers’ ability to release an individual on reintegration licence before their case has been heard by the Parole Board, and I am sure that Ms Clark will outline her reasons for that.

I would like to make a few points in response to Ms Clark’s amendments. First, the intention of the licence, as I have said, is to better support the reintegration of long-term prisoners and, critically, to provide structured testing. Prisoners released on the licence will be subject to conditions including curfew, which can be electronically monitored, and, importantly, supervision by justice social work. I appreciate that it is a new licence and that, understandably, there are questions about how it will operate in practice.

As members will be aware, the provision will not operate in isolation. Section 7(12) requires the Scottish ministers to prepare a statutory operating protocol to underpin the use of the licence. That operating protocol must detail the risk assessment process that will inform release on the licence and the factors to be taken into account when undertaking the risk assessments. It will also cover matters such as how prisoners will be monitored when released on reintegration licence.

In developing that protocol, the Scottish ministers must consult with a range of stakeholders with specific expertise in the area, including the Risk Management Authority and, as I mentioned earlier, the independent Parole Board.

I hope that that provides suitable reassurance to Ms Clark and that she recognises the importance of having the opportunity to test prisoners before their release, subject to risk assessments, as I have described.

Amendment 73 would remove the legal considerations that Scottish ministers and the Parole Board must have regard to when releasing a prisoner on a reintegration licence. I am not clear what the purpose of the amendment is. I note that Ms Clark’s view appears to be that the Scottish ministers should not be making those decisions, but amendment 73 would remove those legal considerations in cases in which the Parole Board directs release on a reintegration licence.

I do not support the view that the Scottish ministers should not be able to release prisoners on the reintegration licence, within the parameters that are described in the bill. I recognise that that will need to be done on the basis of clear risk assessment that takes account of all relevant factors, and the bill provides for that. I therefore ask Ms Clark not to move her amendments in this group.

I turn to Mr Greene’s amendments. Amendment 75 seeks to add the protection of the

“victim or victims of the prisoner, or class of persons, to whom the prisoner may pose a risk”,

if released on the reintegration licence, to the existing list of considerations that the Scottish ministers and the Parole Board must have regard to before releasing a prisoner on the licence. The bill currently lists those considerations as

“protecting the public at large,”

reducing reoffending and supporting the reintegration of the prisoner. Victim safety would be included in the definition of protecting the public at large, but I appreciate that it would be helpful to put that beyond doubt.

Therefore, I commit to lodging a stage 3 amendment that will address the issue of victim safety being one of the legal considerations that the Scottish ministers and the Parole Board must have regard to when deciding to release on reintegration licence. The Parole Board will, of course, already have taken account of victim safety concerns when deciding to recommend release on parole licence. I therefore ask Jamie Greene not to move amendment 75, and I am more than happy to engage with him further on those matters.

Amendment 80, which was also lodged by Jamie Greene, seeks to add individuals who are subject to the sexual offences notification requirements to the list of statutory exclusions from release by the Scottish ministers on the reintegration licence. The list of existing statutory exclusions in the bill does not include offence-focused exclusions, and that was deliberate.

That decision was based on feedback that we received during the consultation and from stakeholders that decisions about release should be based on risk assessment and not on offence type alone. Mark McSherry, the chief executive of the Risk Management Authority, made a similar point when he provided evidence to the committee during stage 1. He said:

“My point is that we need to understand the pattern, nature, seriousness and likelihood of such behaviours, so that we develop a proportionate response that adequately protects victims and addresses the specific risk that is identified. When we use broad offence categories—sexual offending is one example—that sometimes does not allow us to understand the risk that specific individuals might pose within that broad spectrum. Therefore, our view is that that level of”

risk assessment

understanding is required.”—[Official Report, Criminal Justice Committee, 25 January 2023; c 22-23.]

As I have highlighted, the provision has been designed with risk assessment at its core. The risks posed by all individuals being considered for release on the licence will be carefully assessed as part of that risk assessment process, regardless of the offence they have been convicted of. Statutory exclusions on the basis of offence type alone would cut across that.

It might be of interest to Mr Greene that, as I said earlier, people who are given an extended sentence are excluded from eligibility to be considered for release on the reintegration licence. If you look at the figures over the piece, you see that the majority of people who are given an extended sentence are sex offenders.

For the reasons outlined above, I ask Mr Greene not to move amendment 80.

My amendments 9 and 10 are both technical amendments. Amendment 9 repeals section 3AA(7) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, which relates to the Parole Board’s decision making in relation to long-term prisoners on home detention curfew. Section 7 of the bill removes long-term prisoners from home detention curfew, so that subsection is no longer required.

Amendment 10 corrects a minor drafting error in which the wrong subsection number was used.

I move amendment 9.

Risk assessment is at the core of these provisions, for all offence types. There are risks if we start including or excluding certain offences. Given that this provision is for long-term prisoners, thorough risk assessment procedures should be applied to all prisoners who are being considered—and, of course, they are only being considered—for release on the temporary reintegration licence. There is no automatic entitlement to that.

In the provisions, there is a clear commitment that the Parole Board and the Risk Management Authority will be consulted in relation to prisoners for whom the Scottish ministers are considering release. I appreciate that the language of legislation can be confusing, particularly in terms of who and what “the Scottish ministers” are. In some scenarios, the phrase means the Scottish ministers; in other scenarios, including in this case, it means the Scottish Prison Service. That is because of its nature as an executive agency.

It is important, when we are considering the involvement of the victim and the recognition of their need for information and security, that we look at the issue as an end-to-end journey. I appreciate that my remarks might seem quite narrow, but they are specifically in relation to the bill. We need to look across the piece. Of course, victims have a right to make representations to, for example, the Parole Board.

Again, at the risk of my comments sounding quite narrow, I am speaking to specific amendments on a specific part of the bill. The Community Justice (Scotland) Act 2016 is focused on offenders, not victims. Whether we are talking about victims or those being released from prison, any amendments on victims might not fit with that act in terms of achieving support and improved outcomes.

We have to be really clear about the detail. I am more than willing, in the time between now and stage 3, to delve even deeper into the detail. I am conscious that this is a large piece of legislation that is amending several existing pieces of legislation. However, as Mr Greene says, it is important—whether for victims or the accused—that we get all the detail right.

There are also limits on the information that can be shared about individual prisoners, and therefore it is not clear what role a victim or a VSO could reasonably play in the management and delivery of a prisoner’s release plan.

I am concerned about the potential consequences of Ms Clark’s amendment 39 and how it would interact with the existing processes under the victim notification scheme. For that reason, I cannot support amendment 39 and ask Ms Clark not to move it.

On amendment 95, I think that Mr Findlay and I probably have a completely different view about what the amendment would achieve. The amendment seeks to include victim support organisations in the list of public bodies in proposed new section 34A(2) in the 2016 act that have a duty to comply with a request from the Scottish ministers to engage in the development, management and delivery of a prisoner’s release plan. As with amendment 39, I am not clear what role VSOs could appropriately have in the development, management and delivery of a prisoner’s release plan. In the light of that, I cannot support amendment 95 and ask Mr Findlay not to press it.

The proposed definition for victim support services in amendment 98, which is intended to bring in organisations that provide support services, does not work, as there is no corresponding definition in proposed new section 16ZA of the Criminal Justice (Scotland) Act 2003, to which Mr Findlay’s amendment cross-refers. Further, on the basis that amendment 98 is dependent on amendment 95, which I have urged Mr Findlay not to press, I do not think that it would be necessary to pass amendment 98, so I ask Mr Findlay not to move it.

The specific intention of amendments 96 and 97 is not entirely clear from the text alone. It would appear that, taken together, the intention of amendment 97 is to include victims in the definition of a “relevant individual” for whom release planning can take place, alongside individuals on remand or serving custodial sentences.

As I discussed previously, the intention of section 9 is to require earlier engagement in a prisoner’s release planning by the universal services that they will need on release to reduce their risk of reoffending. Victim safety will be a key part of that planning. Prisoner release planning is not the same as victim safety planning and I fear that amendments 96 and 97 risk conflating the two. I therefore cannot support them, and I ask Mr Findlay not to move them.

Amendment 41, which was lodged by Katy Clark, would require Scottish ministers to carry out a review of release planning for women within two years of the section coming into force, and to publish a report on its findings. The Scottish Government and the Scottish Prison Service recognise the specific needs of women in custody. That is why we are taking a different approach to the women’s estate and why the strategy for women in custody is so important.

As I said in response to Russell Findlay’s amendment 71 in an earlier group, I am minded to lodge a stage 3 amendment that will encompass all the various asks for reviews of different sections of part 2 to provide a more coherent picture. That could include a focus on release planning for women. In the light of that, I ask Ms Clark not to move amendment 41.

Before I address the amendments lodged by Katy Clark and Russell Findlay, I will speak to the amendments in my name.

Section 11 allows victims to nominate a victim support organisation to receive information regarding the release of a prisoner in their case. That is intended to enable a more trauma-informed approach to the information sharing and to allow victims to be better supported in release planning.

During stage 1, concerns were raised that the bill as drafted would have the unintended consequence of allowing a victim support organisation to request information on behalf of a victim when that victim had not given consent. We have lodged amendments 21, 24 and 105 to address that concern, so that VSOs will be required to secure a victim’s consent before requesting any information about a prisoner on behalf of a victim that they are supporting. Amendments 21 and 24 will require consent for information in relation to prisoners with sentences of 18 months or more, and amendment 105 is an equivalent amendment in relation to victims of prisoners whose sentences are under 18 months.

Amendments 22, 23 and 25 to 27 will extend section 11 to victims when the perpetrator is a patient in the forensic mental health system. When a perpetrator is subject to a compulsion order and a restriction order, amendment 23 will enable victims to nominate a VSO to receive the information that the victim is entitled to and will give VSOs the right to ask for that information. The Scottish ministers will provide the information if they are satisfied that the victim has consented to the VSO making the request.

Amendment 25 will give a VSO that is nominated by a victim the right to be told about certain decisions. As with amendment 23, VSOs will be able to request the information when they have consent to do so.

Amendments 22, 26 and 27 are technical amendments to the 2003 act in consequence of amendments 23 and 25.

Over 2010-11 to 2019-20.

I will speak to amendments 28 and 29 and then to other amendments in the group.

Although concerns have been expressed about resourcing the role of justice social work, the bill requires only that the courts give justice social work the opportunity to provide information relevant to the question of bail; it does not place a duty on justice social work to do so. We deliberately framed the provisions in that way to ensure that local authorities will always have the opportunity to provide information but that it will be for them to decide whether to do so in any individual case.