Seòmar agus comataidhean

To be honest, that question is more for the Cabinet Secretary for Finance and the Economy than it is for me. However, it is also about the nature of the borrowing that can be undertaken. We must all bear in mind the fact that the borrowing must be paid back, so there is an impact on future resource budgets. Beyond my party, there is relatively broad consensus that neither the borrowing powers nor the fiscal framework are now suitable, if they ever were. That is evidenced by the fact that the financial framework is being looked at again this year—it was due to be looked at under the previous agreement between the Governments. There is room for better distribution of resources and for capital borrowing powers that more properly reflect the Scottish Government’s range of responsibilities.

Jamie Greene made a very sensible suggestion that we should let SPICe look at that, but it is my and the Government’s position that overall funding from the Treasury is reduced in the forthcoming budget. That is absolutely my position and I am happy to defend it. If it is asked, and depending on how it is asked, I am also happy to see what SPICe has to say to that. However, that is the Government’s position.

That may have been a technical answer, but it is also a factually correct one. We have observed the standing orders of the Parliament. There is a role for the committees, if they wish to take earlier consideration. This is the second committee of the Parliament to consider the powers, and that is in the context of a pandemic. In addition, the Scottish Prison Service has undertaken a voluntary consultation exercise, which was not required. The SPS has done the right thing in that regard.

If the committee wanted to annul the instrument, it could do that, or that could be done through the Parliament, and the powers would continue until that process happened. I do not think that there is a material loss of benefit to the scrutiny process in that regard.

On the consultation responses, as I tried to explain in my response to the committee, we did not get permission from the consultees to publicise their responses. Work is being done to do that—although some of them are already known to members of the committee. As soon as those permissions have been granted, the responses will be published. You are right to say that that will be next month, but next month starts on Friday. I am not saying that the responses will be published on Friday, but next month starts on Friday, and they will be published as soon as it is possible to do so.

Given Jamie Greene’s previous question, I wonder whether it would be helpful to look at the information that we can provide. I get an update every week—sometimes more often—on vaccination rates for prisoners and staff, as well as on the presence of the virus. As Fulton MacGregor rightly said, that has implications for visiting. In addition, when people come directly into custody as part of the judicial process, there are processes in place to minimise transmission. As far as I am able to, I will get specific figures to you on that. In general terms, it is the same profile as the general population, so the same process is followed in relation to the age that people are when they get vaccinated. From memory, there is a higher incidence of refusals in the prison population but, again, I will get that detail to you.

It might provide further reassurance to say that governors have to act in consultation with health professionals. If a prison governor, for whatever reason, wanted to have a more stringent regime, they could not have one just because they wanted to. They can use the powers under the regulations only if a health professional says that that is required, and it is not likely that health professionals would insist on such measures.

We are dealing with a closed population. We have had a number of outbreaks and, as I said, the virus is currently in nine different prisons. When it bubbles up in a particular prison, the incident management team goes in and takes relevant measures. It is a very real threat, because the virus is able to spread more quickly than it can among the general population. The powers are being extended for the right reasons—and only those reasons. It would not be in a prison governor’s interest to use the powers for anything other than health reasons. I will get as much information as possible and write to the convener with that information for the benefit of members.

The officials have confirmed that.

I think that Tom Fox wants to come in on that point. The Government’s lawyers and the SPS have looked at that and are very conscious of taking a human rights-based approach. It is not a hollow threat because, if they were to be in breach of human rights legislation, they could be challenged on that by individual prisoners or their representatives.

We are asking for the powers to be extended to 31 March next year. The point that I was trying to make was that the pandemic can quickly change in nature. What if, hypothetically speaking—I have no inside knowledge on this—we saw a very benevolent decrease in the pandemic and a much smaller incidence of the virus in the prison estate and elsewhere? That would inevitably raise concerns among committee members, and in that context—or in some other context—I would be more than willing to come back to the committee to explain things or listen to members’ concerns. That is my offer at this stage.

Thank you for inviting me to come along. I will be brief.

SSI 2021/289 extends the application of certain modifications that were made to the prison rules in response to the coronavirus pandemic by the Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2020 (SSI 2020/122). The current amendments to the prison rules are due to expire tomorrow, and the instrument’s purpose is to extend the application of the changes until 31 March 2022 and to revoke others that are no longer considered to be required.

Given the unique operating environment of the prison setting, the Prison Service considers it necessary to retain some of the flexibility afforded by previous rule amendments that were made during the pandemic to ensure the safe running of our prisons for the pandemic’s duration. The Prison Service also considers it necessary to take steps to retain some of the flexibility afforded by previous SSIs that were introduced during the pandemic to ensure that we are prepared and able to focus on any immediate priorities that might arise.

Members will of course be aware that the threat of coronavirus to the operation of the justice system remains. As at Monday this week, there were 136 positive Covid cases spread across nine prisons in the prison estate, so vigilance is vital. I should also say that the Scottish Prison Service’s track record in this area is very good compared with the record of other jurisdictions.

The SSI seeks to retain some of the powers that were taken in response to the pandemic, which gave prison governors the flexibility to introduce precautionary and responsive measures to prevent and limit the spread of the virus and, crucially, to ensure the safety and wellbeing of those who live in, work in and visit our prisons.

Among the key powers that are being retained are powers to allow governors to suspend or restrict, if necessary, in-person visits, purposeful activity and recreation in response to local outbreaks; rule 40A and the extended timescales in rule 41, which provide governors and local national health service partners with the means to comply with Public Health Scotland and Scottish Government advice in relation to the isolation of large groups or individuals who are symptomatic or who have been in close contact with a person who is symptomatic or have been identified as a close contact of a person who is symptomatic, or who are new admissions that might present a Covid-19 risk; and the ability for governors to extend the period for which a prisoner is on home leave for up to 14 days from the normal seven days where prisoners advise that they or someone in their home has coronavirus or has developed symptoms of coronavirus.

The committee will be aware that, in advance of laying the instrument before Parliament, the SPS undertook a tailored consultation in July with stakeholders such as the Howard League, Families Outside and Her Majesty’s Inspectorate of Prisons for Scotland. In addition, an operational review determined that not all amendments to the prison rules would require to be maintained, due to the majority of the estate returning to a regular two-shift model working day in October 2021, with staff attendance patterns that better support a fuller regime model.

The majority of amendments that are revoked by the instrument are related to administrative processes and associated timescales in areas such as internal disciplinary processes and requests and complaints. The rules that are being retained are intended to remain in force until 31 March 2022 but can be revoked earlier if necessary. Consistent with the wider community, the Prison Service is opening up regimes across the estate and its priority remains to continue transitioning to a full regime in alignment with public health advice.

For clarity, the powers in question are therefore proposed as precautionary measures and will be used only if they are felt to be necessary and proportionate. They will be subject to multidisciplinary input and decision making, and will be kept under review if put in place. Senior SPS headquarters staff and governors will continue to work with the Government and NHS colleagues to ensure that the most up-to-date information available is used to inform their response and contingency planning.

Given the uncertainty that exists as we approach another winter, it is essential that the Government ensures that the Scottish Prison Service can rapidly respond to all eventualities of the pandemic, whether nationally or locally. The draft rules provide for precautionary powers that are essential to the SPS’s continuing response to the pressures that prisons face during the pandemic.

I welcome any questions that members may have.

Her Majesty’s chief inspector of prisons has the powers that are set out in statute to inspect prisons and undertake various other elements of scrutiny of prisons, which Mr Fox might want to speak to.

The Prison Service carried out a human rights assessment prior to the instrument being laid. I understand the concerns that committee members have, but I will describe the way that the system has worked over the pandemic. The governors are not tyrants—I am not suggesting that that has been suggested—and they know that the best way of managing a prison is to allow the maximum possibility for purposeful activity, such as visits. That is why they have worked hard on alternatives to visits. That tends to help to make the running of prisons easier. Sometimes, it is not in governors’ interests to restrict such activities, and they would do it only because of health needs.

The safeguards are the conversations that governors have with SPS headquarters. It is possible for legal action to be taken if a governor extends their powers. Plus, there are the inspector of prisons and the European convention on human rights.

The officials might want to speak on any further powers that the inspector of prisons has on the matter.

Yes, and the powers that we seek to revoke, rather than extend, are, in large part, to do with internal administrative and disciplinary processes. You are right in identifying the ones that we wish to extend.

I note from my recent experience at committees that there have been a number of times during the pandemic when the usual expected patterns of development for measures have been curtailed, for fairly obvious reasons. It was probably not possible, even in July, to predict what stage the pandemic would now be at, although when the powers were due to expire was predictable.