Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011/331)
Item 2 is an opportunity for members to ask questions of officials on the Prisons and Young Offenders Institutions (Scotland) Rules 2011. Questions were put in writing to the Scottish Government on the instrument, but two of the questions were not answered in a way that enabled the committee to form a view. Today’s session provides an opportunity to seek further information so that the committee may exercise its scrutiny functions effectively. Those questions concern the entitlement of untried and civil prisoners to possess tobacco, and the duty on prison governors to prevent prisoners from communicating with persons who notify the governor that they do not wish to receive communications from that prisoner.
Thank you—I will be brief. I will give the committee a bit of context and background to the rules which, as members would expect, are very important to all of us in the SPS. The rules are an important safeguard for prisoners and are used daily, so they are very much a live document. They are referred to frequently by staff and prisoners throughout the working day.
I thank the witnesses for appearing before us. As you will be aware, our questions relate to our concerns about compatibility with the European convention on human rights. In particular, we are not necessarily happy with the response to questions 7 and 8 that we asked of you. Do you agree that the removal of untried and civil prisoners’ entitlement to possess tobacco appears to affect their right to peaceful enjoyment of their possessions, as guaranteed by article 1 of protocol 1 to the ECHR?
In the 2006 prison rules, rule 48 set out the right of civil and untried prisoners to possess tobacco. The 2011 rules remove that, but the removal of the right was not intended to equate to a prohibition on the possession of tobacco. There are two direction-making powers with which we intend to tackle the issue of giving prisoners the right to possess tobacco. First, rule 45, which deals with privileges, sets out that ministers may make a direction to deal with the arrangements by which prisoners can possess tobacco. Secondly, rule 47 allows ministers to specify items of property that prisoners may store in their cell.
You are telling me that all prisoners, whether tried or untried, will have a right to possess tobacco.
Yes.
Why could you not have said that in your written response, although perhaps you did?
Some of the difficulties arise because of the Tobacco and Primary Medical Services (Scotland) Act 2010.
What you said suggests that prisoners will have more access to tobacco than they do at present, because all prisoners will have tobacco in their cell—or at least all prisoners who want it, as I am sure that it will not be forced on them. However, that is not the case now, because for some prisoners it is a privilege to get tobacco, is it not?
No, it is not. What has been described reflects current practice. No distinction is made between untried and civil prisoners and other prisoners in relation to access to tobacco. That will continue.
Margaret McCulloch has the next question.
It seems to have been answered, convener, but shall I proceed?
Will you ask it, anyway, just for clarification?
The Government’s letter to the committee notes that it is
It is not the intention to do that. To answer that point and John Scott’s question, part of the problem is that the Tobacco and Primary Medical Services (Scotland) Act 2010 restates the age limits for purchase and sale of tobacco. Although purchase by and sale to under-18s are an offence, possession is not. To prohibit possession for under-18s on the face of the rules may have been going beyond what was in the 2010 act—that was the difficulty in leaving the rule in the rules. We thought that it was better to treat tobacco like every other product that prisoners can possess, such as toiletries, and newspapers and magazines, and deal with it in the direction on storage of property. The instructions that I have to draft that direction include that all prisoners, whether civil, untried or otherwise, will be allowed to possess tobacco in their cell.
That may very well be the intention, but it is not clear to us that the law says that. Can I ask you again to comment on the convention? As I understand it, in order that an interference with article 1 protocol 1 rights may be justified, it must be proportionate and strike a fair balance between the public or general interest and individuals’ fundamental rights and freedoms as secured by the convention. Do you think that that fair balance is achieved with the perceived removal of untried and civil prisoners’ entitlement to possess tobacco?
Yes, because the directions will come into force at the same time. I appreciate that the committee has not seen the directions yet, but I can confirm that the instructions are to proceed to give all prisoners the right. The position would be different if we were facing a prohibition from which exceptions could be made, but we are not. All that we have is the removal of the right from the face of the rules. We have not prohibited possession of tobacco. It is just that the right will no longer be on the face of the rules; it will be alongside other property rights in the direction on storage of property. The directions and rules, taken together, will ensure that article 1 protocol 1 rights are respected.
Is this going to be a seamless transition? Is the timing going to work so that there will not be a day or even a minute when the law is unclear?
The transition may be a matter of minutes because we cannot make directions under the rules until the rules are in force. Once midnight strikes on 1 November, the directions can be signed to come into force as soon as they are signed. Practically, it may be a matter of minutes if the rules are signed at midnight, but that should not cause a problem.
When did you say the directions would be in force?
They are intended to come into force on 1 November along with the prison rules.
Okay. Given your clear responses, why was this not given to us in writing?
In hindsight, it probably should have been, convener—sorry. The key point is that the removal of the rule was not intended to be a prohibition. The instructions came to me only recently. I am quite sure that they were discussed in light of the committee’s response as well.
You said that one of the intentions in drafting all this was to make it clear and accessible to the prisoners. Does putting the right in directions that are separate from the rules that are supposed to be accessible to the prisoners and explain their rights to them cause any practical difficulty?
I do not think so.
I do not think so. Prisoners are less likely to refer to the rules on this particular matter than they are about other things—for example, orderly room procedures or complaints. If we were trying to change practice, we would have had to communicate it before now; otherwise we would have difficulties on our hands. Given that the rule in question just applies the status quo, I do not think that the prisoners will refer to it.
Thank you very much.
I appreciate that all this was designed to make things clearer, but I am not quite sure that it is having that effect on me. However, I will move on and ask about rule 60, which appears to impose an absolute duty on a governor to prevent a prisoner from communicating with a person where that person has requested that communication be prevented. Is it correct to say that this is an absolute duty on the governor, or is any discretion allowed?
The duty is absolute. The governor has to take reasonable steps to prevent communication. In the light of the committee’s concerns, we have looked at the rule again. The rule certainly interferes with prisoners’ article 8 rights, but we appreciate that there are arguments both ways whether that interference is justified. To be on the safe side, the Government intends to amend rule 60 to relax the absolute ban. That amendment will be brought forward as soon as possible.
Thank you.
The rules refer to “the Governor”, yet the definition of “the Governor” needs to be clearer, as it could mean a governor or it could mean any officer. The Government’s response states that, in some cases,
That will become a question of practice. In part 8 of the rules, “the Governor” means
But should we not be trying to ensure that it is very clear what the instruction is and who can give it? I suggest that leaving it to practice could be very dangerous if a prisoner decides to challenge how he has been treated if he has been unable to communicate with his children but the matter is treated differently in another prison. How is that scenario handled?
We have yet to explore what the amendment will look like. We come across the scenario that you describe in relation to a number of decisions made in prisons and we deal with it in a number of ways. We will sometimes specify that either the governor or the deputy governor has to sign off or scrutinise the decision-making process.
Forgive me, but it is not clear who “the Governor” is. Am I right in thinking that it could be any officer?
No. In this context, we would stipulate that it is the governor in charge or the deputy governor. We sometimes put that into guidance—in the case of progression decisions, for example—so that we are satisfied that the governor, although they are not necessarily doing all the work, is bringing together all the information. We have been doing a lot of work with managers throughout the system to assist in ensuring that their decisions are proportionate and defensible. We would expect a decision on this matter to be recorded in the same way.
I have two questions. First, how would the amended rule 60 be operated compatibly with article 8 of the ECHR? Secondly, if the amended rule still constitutes an interference with article 8 rights, that would need to be clearly justifiable and in pursuit of a legitimate aim. Which legitimate aim would underpin the interference in the amended rule 60—or are you not yet confident enough of what amendment will be made to answer that?
I am a practitioner so I will answer the question according to my understanding. I am not a lawyer, so forgive me if I do not get the language correct.
Does the Scottish Government have anything to add?
We have not explored to the required degree how the possible amendment would look. Possible approaches could include giving the governor the right to assess the reasonableness of the request, giving the prisoner a right of appeal if a request is granted, and giving the governor a right to review his decision on request. Those are ways round the issue. The way to get round an absolute ban is to relax the absolute ban, and there are a number of ways to do that.
As it is, there appears to be an article 8 issue.
There is an article 8 issue, but I would not go so far as to say that it is an article 8 breach. There are arguments both ways but, as Rona Sweeney said, there is a balance to be struck and it may be that, on this occasion, the balance has tipped too far in favour of the victim or the person who writes in with the request. It seems sensible to address that point by making the amendment now, rather than leaving it and having to make the arguments.
If there is an imbalance that leans one way more than the other, or if there are two competing sets of rights, it places a hell of a duty on the governor to make the right call and not be subject to some sort of legal challenge for it. How does the Prison Service feel about potentially being open to such litigation? Does it feel prepared? Has the Government given it the security blanket that it needs to deal with any ramifications?
Prison governors and managers in prisons work hard to strike a balance. It is a judgment, and I am not saying that we always get it right. Yes, that can leave us subject to legal challenge. We need people to be able to make those judgments, so the advice that I give governors and senior staff is that, if they follow our procedures and if there is an audit trail of sensible decision making, we will support them in every way that we can through the legal challenge. People believe us on that.
Your job is to do what the law says.
Yes.
That requires the Scottish Government to ensure that the law is right. Are the law and your job in any way competing? Do you have any differing positions that you need to iron out behind the scenes?
No, I do not think so. As the practitioners who run prisons, we fully understand victims’ sensitivities. We understand how difficult it is for victims if prisoners write to them and do so in ways that cause harm. We do not want that. We would want to be able to protect an individual from that, albeit that that might result in our having to have a difficult conversation with the prisoner. We would do that and would put in place the necessary measures. We share the same interest as anyone would. We see that as being part of our job rather than as a particular difficulty.
I think that the committee will welcome the fact that you propose to bring forward an amendment. I think that you have already answered this, but will you give us a final assurance, on the record, that the amended rule 60 will be proportionate to all parties involved?
Yes.
The amendment notwithstanding, which of the article 8 legitimate aims were you pursuing?
The protection of others.
You have recognised that a balance needs to be struck, but what happens when a person who makes a request to the governor—this is the other side of the coin—can show that he or she has been the recipient of threatening or abusive correspondence, or has reasonable fears that they might receive such correspondence? How do you see that the respective article 8 rights have been balanced in that instance?
I suspect that it is just a question of current practice. The current practice is that the governor would engage with the person who sought that assistance and, in turn, with the prisoner, whose views they would seek. Although we recognise that rule 60 raises arguments either way, at the moment a balance is achieved by engaging with both parties to seek agreement on a way forward.
I would be grateful if the panel could explain to me what happens when the mother of a child asks the governor to stop the father, who is in jail, corresponding with the child. Surely the mother and the father have competing rights as regards access to and communication with the child.
In that setting, in my experience, the interests of the child would be predominant. We would engage social work in the prison, which, in turn, would, most likely, go to social work in the community in an effort to establish what the best solution would be. There is not an easy answer. We would engage other professionals.
That is great. We want to hear that the child’s interests are put first, but I see there being a conflict in the law between the convention rights of the father and the convention rights of the mother. Surely you cannot work in the interests of the child on a case-by-case basis if the law is not clear in supporting you.
I think that it would be difficult to set in the rules how such a situation should be dealt with.
It is very much a case of achieving a balance. I do not know that we could prescribe that in law because it would depend on the nature of the father’s offence and on a number of issues in which others would have to be involved.
The difficulty that I have is that we are talking about convention rights. You cannot operate on a case-by-case basis in the interests of the child and at the same time allow one party to hold absolute rights over the other. Do you see the conflict there?
I see that both parents and the child have rights that are potentially competing. In practice, we pay particular attention to the rights of the child, but we do that with other professionals round the table.
Will the Government commit to look at how the rule affects prisoners’ ability to raise and defend legal proceedings?
Yes. If the absolute ban is causing the problem, relaxation of the ban will allow the governor discretion to take into account situations such as those that the previous speaker suggested. In that situation, prisoners will have the right to raise and defend legal proceedings.
Do you have any idea of the timescale for the amendments?
The intention is that the amendments will come into force along with the rules, so it might mean a breach of the 28-day rule.
So we will be hearing from you again on the matter.
Yes.
In your response to the committee, you undertook to correct the errors in rule 4(1)(f) and the errors relating to the Court Martial Appeals Act 1968. Do you intend to meet that commitment before the instrument comes into force on 1 November?
I do not think that that is strictly necessary. There will be another amendment instrument coming through in January. Both amendments are required, but they do not cause a problem for the instrument, if I can put it in that way.
All right. Unless we have any last-minute questions, I thank you all for your time.
Just one point, convener—
Very briefly, Chic.
I will try to be brief, convener.
That would be nice.
I return to my earlier question about consistency and compatibility. What is the catch-all beyond the governors stage? Who makes the consistency decision? Is there a higher court of authority if there is any doubt?
I am not sure what the amendment will look like. I am line manager for the governors of the large establishments and I have a colleague who line manages those of the smaller establishments. We have monthly operational meetings at which we talk about consistency of practice. If governors are uncertain about an area of practice or there is something new, we offer briefing, training or advice sessions, and they phone and ask.
Thank you.
Thank you for your time.
I reconvene the meeting to resume consideration of SSI 2011/331. The legal brief notes a doubt as to whether the instrument is intra vires in so far as it relies on section 3A of the Prisons (Scotland) Act 1989, as prospectively inserted by section 110 of the Criminal Justice and Licensing (Scotland) Act 2010, as an enabling power. That provision is not yet in force. It is doubtful whether the exercise of power that will be conferred by section 3A(5) can be necessary or expedient for the purpose of giving full effect to the provision in the 2010 act, which inserts that power into existing legislation. It appears to fall outwith the scope of section 4 of the Interpretation and Legislative Reform (Scotland) Act 2010, which permits the exercise of powers before commencement and on which the Scottish Government seeks to rely. Given the doubt about whether the instrument is intra vires, does the committee agree to draw the rules to the Parliament’s attention on reporting ground (e)?
Two concerns about defective drafting have also been expressed. First, the drafting of rule 2(3)(e) appears to be defective, in that it erroneously refers to a procedure that has been abolished. That means that the condition that requires to be met cannot be met, which defeats the intention that a prisoner who appeals against conviction or sentence under section 8 of the Court Martial Appeals Act 1968 is deemed to be an appellant from the time when the prisoner takes steps to commence appeal proceedings.
The legal brief suggests that the drafting “appears to be defective”. It does not appear to be defective—it is defective.
That is a matter of judgment, Mr Brodie.
The legal brief also notes four matters that the committee might wish to draw to the Parliament’s attention on the general reporting ground.
As the Scottish Government proposes to produce an amendment to rule 60 by 1 November 2011, does the committee agree to recommend that the Scottish Government take the opportunity to correct the other errors in the instrument at the same time?
Rule 48 of the Prisons and Young Offenders Institutions (Scotland) Rules 2006 (SSI 2006/94) currently entitles untried and civil prisoners to keep tobacco in their possession. The new rules will remove that entitlement and will put those prisoners in the same position as convicted prisoners. All prisoners will now have to earn the right to keep tobacco as a privilege under rule 45(3)(d). The removal of the entitlement appears to interfere with untried and civil prisoners’ rights under article 1 of the first protocol to the European convention on human rights. However, the Scottish Government has explained that the directions that are made under the rules will permit all prisoners to keep tobacco in their cells. Those directions are expected to be made on 1 November 2011, when the rules will come into force. Taken together, the Scottish Government considers that the rules and directions address the issue with article 1 of the first protocol to the ECHR. The committee accepts that explanation, but would welcome sight of the draft directions to inform its scrutiny further.