Criminal Justice Committee

Meeting date: Wednesday, September 29, 2021

Official Report 644KB pdf

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Subordinate Legislation

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Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment (No 2) Rules 2021 (SSI 2021/289)

Agenda item 3 is an evidence-taking session on a Scottish statutory instrument. I welcome to the meeting Keith Brown, Cabinet Secretary for Justice and Veterans; Tom Fox, head of corporate affairs, Scottish Prison Service; and Jamie MacQueen, Scottish Government legal directorate. For the committee’s information, Fulton MacGregor will have to join us online today because of travel disruption. I refer members to paper 4.

When we considered the instrument last week, we agreed to write to the Scottish Government and the Scottish Prison Service with some questions. I thank the cabinet secretary for his written response, which we received earlier this week. We thought that it would be useful to invite him to the meeting to discuss the instrument further and to answer members’ questions, and I thank him for his attendance, which is much appreciated.

I invite the cabinet secretary to make some brief opening remarks before we move to questions from the committee.

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.

Good morning, cabinet secretary, and thank you for your written submission. My question is to do with the role that the inspectorate will play under the precautionary measures that you are introducing. My concern is the human rights of prisoners, particularly in relation to purposeful activity and recreation. I seek reassurance from you on what role the inspectorate will play and on the mental health of prisoners in the light of the proposed measures.

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.

You are right to be concerned about prisoners’ human rights, Ms Stevenson. We should all be concerned about that, and the inspectorate has been diligent throughout the pandemic in maintaining as good an inspection regime as it possibly could.

During the pandemic, prisoners have shown staff a remarkable level of co-operation in what have been challenging and difficult circumstances for them. They have done that because they have seen the legitimacy of what we are trying to do, which is to preserve the health and wellbeing not only of the people who live and work in prisons but the people who come to visit. The measures that we have taken to put in place virtual visits, for example, have helped with that. The ability of prisoners to contact families by phone has also been of significant help in maintaining that legitimacy.

Please be assured that the inspectorate is on our case regularly, as it is entitled to be. It takes its job seriously, and we take seriously the comments that it makes to us and respond to them as quickly as we can. The inspectorate has been very diligent in visiting prisons. I assure you that, even when visits were not possible, it was on the case, as we would expect it to be.

Good morning—it is almost the afternoon—and thank you for coming. You will note that the committee briefly debated the instrument at a previous meeting.

I have comments and questions on two distinct areas: one concerns the process of deliberation for the instrument and the other concerns its substance. On the latter, I have sympathy with the need to extend some of the powers, for the reasons that you outlined. However, on the former, I have less sympathy with the Government on the way in which we are having to process the instrument. I will start with that.

The current powers expire tomorrow, which leaves the committee in the invidious position of having to either agree or disagree with their extension. Why, cabinet secretary, did the rules come to us only last week, given the likelihood of controversy—questions and concerns have been raised by numerous members across the political spectrum—around the content, nature and extent of some of the powers and the effect that they will have on the prison population?

12:00  

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.

The instrument is subject to the negative procedure, and it has been laid in accordance with the Parliament’s standing orders. I appreciate that it comes into force before the expiry of the 40-day period for a negative instrument, but we wanted to carry out the consultation in response to the comments of the Justice Committee in the previous session on the previous instrument, which extended the powers. Time had to be built in for that consultation. For that consultation to be effective, we had to have a position on where we wanted to be, and that took a bit of time. It was difficult to do that further in advance.

The instrument was laid in accordance with the various periods that are set out in the standing orders. It was laid on 30 August, and it has been through the Delegated Powers and Law Reform Committee. I think that it came before this committee last week, which meant that there was still time to allow further evidence to be taken at this meeting, which the committee has obviously taken the opportunity to do.

Thank you. That was a technical answer to my question. Nonetheless, the powers expire tomorrow, so the committee has very little room for movement—to take further evidence, to scrutinise matters or to interrogate any of the stakeholders who inputted into the consultation. In fact, we learned in the response that we received late last night that the consultation responses will be published in October, which is way after when the instrument will—presumably—have been agreed to and the powers extended for another six months. That does not strike me as acceptable.

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.

Thank you—that answer addresses my process queries and concerns. Those are noted on the record, and other members may have comments to make on that.

On the substance of the powers that are being extended, the cabinet secretary’s letter helpfully summarised some of the consultation responses that we have been unable to see. My impression from the three-page letter was that more concern than praise was raised, if I can put it that way.

Concerns were raised, in turn, on rule 40A, on time limits; on rule 41A, on accommodation; on rule 63A, on the suspension of visits; on rule 84A, on purposeful activity; and on rule 88A, on recreation. In effect, that covers the entirety of the powers that the Government is seeking to extend. In their substantive responses, all three organisations expressed concerns about some of the rules. Some of them even suggested potential amendments.

We cannot amend the instrument; in fact, we cannot even vote on it, which is unfortunate. However, given the context, level and nature of some of the concerns that have been raised by us and by stakeholders in the consultation process—I am sure that we can go into those in detail—why does the Government think it appropriate for the extension of the powers in their entirety as they currently exist simply to be nodded through?

The extension of the powers is not being nodded through. I acknowledge that the consultation process was limited; however, I again emphasise that the SPS did not have to undertake it, although it was right to do so. I am also not sure that it is true that the balance was critical here. Officials might have the exact details, but some who were contacted did not respond at all while others said that they had no comment to make.

You are right to say that the issues raised were significant and probably reflect those that members will raise today; indeed, they are the obvious issues of concern. As a result, the Government did not seek to have the proposed extension nodded through. We talked to the Prison Service about it and, on balance, believed—for the reasons that I gave in my opening remarks—that allowing the powers to be extended was the right thing to do.

I understand that the extension runs to 31 March next year but, as I have pointed out, the pandemic has changed in nature and, indeed, is changing all the time. I hope that, when we see the figures today, further progress will have been made. I undertake, if the nature of the pandemic changes again—and if the committee so wishes—to come back before that date next year and further discuss the need for the powers. I am more than willing to do that. However, at this point, the Government has considered the consultation responses and believes that, on balance, this is the right way to go.

Your offer and undertaking are very welcome. When we granted the Government the emergency Covid powers, we all accepted from the very beginning that they would not be in force for a moment longer than was necessary—indeed, I think that the Government itself used those same words—but despite the welcome commitment that you have just made, reservations remain that that might not happen, even with the virus’s lowering prevalence.

On that point, have you done any analysis of the Covid cases that are currently in the prison estate? Where are they? Do they involve staff or inmates? How is Covid coming into the estate? Are the numbers on the rise, levelling out or dropping? I would like to get some context.

Mr Greene, I am conscious of the time, and I would like the discussion to remain focused on the SSI. If you have any further questions in that respect, that is fine, but if not, I will move on to Mr MacGregor.

Sure.

Good morning, cabinet secretary and officials.

Like most committee members, I am minded to agree to the instrument, but my concerns, which have already been articulated by Collette Stevenson and Jamie Greene, relate to the vulnerability of a lot of our prisoners. We should all feel slightly uncomfortable about extending such powers, but we need to recognise that we are still in the pandemic and that we need to do what is necessary to keep people safe.

Given that—and perhaps going where Jamie Greene was going in his questions—I want to ask about the vaccination status of prisoners. How has that impacted on the Government’s decision to go for an extension? I know that, this afternoon, there will be another debate on the important part that vaccines play in allowing us to reopen and live with fewer restrictions. Is there an issue with staff or inmates being vaccinated? I know that the Howard League, for instance, has raised concerns about visits—there is a real human rights issue in that regard—but has vaccination status been taken into account in the Government’s decision?

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.

Good morning, cabinet secretary. I reiterate what Collette Stevenson said about all of us being concerned about prisoners’ conditions and rights. Tom Fox also acknowledged that, so we are all coming from the same place.

I acknowledge the cabinet secretary’s detailed answer to the committee, which was very helpful, as was the response to the consultation. I am sure that the cabinet secretary acknowledges that, at the end of the day, whatever the rights and wrongs of the processes, the committee has a decision to make. I am sure that everyone acknowledges that we are decision makers when it comes to SSIs. I might agree with Fulton MacGregor that we should agree to the instrument. I might be minded to lend it my support, but with all the reservations that other members have given about not having the appropriate time to consider it. That is my line of thought.

Am I right in saying that the Government seeks to extend a range of powers that relate to purposeful activity, suspension of visits and detention of prisoners in cells, albeit with all the rules around health professionals and human rights?

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.

Can you confirm that you are revoking the power relating to the restriction of newspapers and reading materials? Will that provision now be allowed?

The officials have confirmed that.

Thank you. When I first read about that, I did not like to think that there was any reason for the restriction of newspapers and reading materials, particularly for prisoners who are detained.

As I understand it, there are no time limits, although there are caveats to that. Are you certain that that complies with human rights law?

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.

On the general point, it is worth saying that we are trying to begin the process of normalisation as best we can. During the pandemic, staff changed their attendance patterns at work in order to enable the maximum number of individuals to exercise and the like. As we go back to a more normal regime, many of the things that we have restricted should start to normalise over the next few months.

However, it is essential that we retain the capacity to take measures if we need to. As recently as a couple of weeks ago, we had an outbreak in HMP Perth that necessitated significant numbers of people being placed in lockdown as a precautionary measure. We would not normally seek to do that, but we need to retain the ability to take measures as and when circumstances necessitate them.

Over the next few months, prisons should return to much more normal regimes than has been the case over the past 18 months. Visits have resumed everywhere, although uptake, unfortunately, has not been as great as we had hoped. Nevertheless, that normalisation is going ahead, but we need the ability to manage exceptional circumstances as and when they arise over the rest of the pandemic.

12:15  

That was really helpful. I certainly acknowledge that the powers might well be needed, but the cabinet secretary should appreciate that we are interested in where the safeguards are. If I am to agree to the instrument today, I need to be satisfied that safeguards exist. Moreover, going back to a comment that you made to Jamie Greene, I am uncomfortable with extending the powers to next March, and the length of time that you are asking for might be reason enough for me to vote against the proposal. I accept a lot of what you have said, and you have told Jamie Greene that you would be prepared to bring the issue back to us before then, but if I am to support the instrument, I need to have that absolutely confirmed. I cannot vote to extend for six months what are quite wide-ranging powers, even with all the safeguards and caveats in place, without the matter being brought back to the committee before next March.

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.

I have a very brief question. As we know—and as the cabinet secretary confirmed in his letter to us—virtual visits have been really successful. Will they be retained and, if necessary, escalated? If so, will governors take that general approach throughout the estate?

Virtual visits are here to stay, because they are a very important addition to what is available in prisons. They have had some windfall benefits; for example, foreign national prisoners are now getting visits that they never had before, because, obviously, they have no family here. They have been a boon for people who live in Scotland’s more isolated communities, as they have been able to visit family members without having to spend two or three days travelling. They have also enhanced prisoners’ ability to contact their young families and children. We are therefore committed to continuing to provide virtual visits, not as a replacement for but as an adjunct to physical visits.

Thank you.

As members have no further questions, I thank the cabinet secretary and his officials for attending. I will suspend the meeting for a short time before we move on to the next agenda item.

12:19 Meeting suspended.  

12:29 On resuming—  

Item 4 is the committee’s consideration of the Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment (No 2) Rules 2021. Do members have any comments on the SSI?

Thank you for your forbearance, convener. I also thank the cabinet secretary and his officials for attending. That is unusual for a negative instrument but, given the nature of the SSI, it was helpful.

12:30  

I do not propose to lodge a motion to annul the negative instrument, but I would like to note it. It will therefore come into force tomorrow, subject to the rest of the committee’s agreement, but with the caveat that concerns were raised not only by committee members but throughout the consultation process.

I have two caveats. First, when the consultation responses are released to the committee and the wider public in October, if it becomes clear that there are wider, substantive problems with the powers that we are extending tomorrow, we reserve the right to request that the cabinet secretary, the Scottish Prison Service and perhaps Her Majesty’s inspectorate reappear at the committee to respond. Secondly, given the length of the extension, it would be prudent for the committee to review it at a midway point—perhaps in January next year—and determine whether we are still comfortable or whether concerns remain.

I appreciate that that does not change the outcome of today’s proceedings, but it is important to put on the record that the committee and wider stakeholders had concerns with the extension of the powers. However, given the cliff-edge nature of the extension and the invidious position that we are in of having to approve or not approve the powers today, we are where we are.

That is helpful and will be noted.

I also do not intend to move a motion to annul but I have significant concerns about the statutory instrument and the length of time that the extension would be in place. Therefore, if circumstances were to change, I would want the Scottish Government to come back.

I also have concerns about the practical implementation of the substantial powers that governors will have under the instrument. The committee should be kept advised on that to satisfy itself not only that individual prisoners’ human rights are respected but that the approach is consistent with health guidance that is in place outside prisons.

The committee would have preferred it if the instrument had been in force for a shorter period. It is unfortunate that the Scottish Government does not feel able to do that on this occasion. For that reason, the committee should be kept closely advised of how it is implemented.

I agree with what has been said and will try not to repeat those points.

I would have been minded to support a motion to annul but I am content with what has been said. I note that the SSI includes the power to suspend purposeful activity and visitation rights and to detain prisoners in their cells if a health professional has said that there is cause for concern around coronavirus. I acknowledge that there are reasons to have those powers but I agree with Jamie Greene and Katy Clark that the committee needs to keep a watchful eye on the length of time for which the powers are in force and the consistency of governors’ decisions. As the cabinet secretary has indicated to the committee that he would be happy to return to the matter, I am content to do nothing other than to note the instrument.

I agree broadly with everything that has been said. As Jamie Greene noted, we are where we are. We were given only a partial picture a week ago and it took the committee agitating for some answers to reveal a much more complex picture. In future, if we can, we should ensure that the authorities with which we are dealing are a bit more forthcoming in respect of such issues, especially when we are on a precipice and there is not much that we can do other than note our concerns.

I agree with the comments that have been made, so I will not repeat them. Does Mr MacGregor wish to add anything?

I have nothing to add to what I said when the cabinet secretary was before us. My points have been summarised well by colleagues. I have concerns, but on balance and with the safeguards that have been mentioned by others, I am happy to note the instrument and acknowledge the cabinet secretary’s offer to come back to us if required.

For clarity and to recap, the SSI has been laid under the negative procedure, which means that there is no requirement for us to endorse the SSI or vote for it to come into force. The SSI will come into force unless Parliament agrees a motion to annul.

However, we have shared some concerns about the provisions in the SSI. I suggest that the minute of the meeting states that the committee makes no recommendation on the SSI but notes that some committee members have expressed concerns about certain provisions of the SSI and notes that those concerns are set out in the public record in the Official Report of the meeting.

Are members content with that?

Members indicated agreement.

The concerns are not only about the provisions of the SSI but the nature by which we are being asked to deliberate them.

Okay. Thank you very much.

In light of our discussion, I propose that we write in due course to the cabinet secretary and the Scottish Prison Service to raise additional points, and that we invite the cabinet secretary back to provide further updates on the situation in relation to the provisions of the SSI.

We should also write to the inspectorate.

We will also write to the inspectorate.