New Petitions
HM Prison Kilmarnock Contract (Independent Review) (PE1241)
The first new petition is PE1241 by William Buntain. It calls on the Scottish Parliament to urge the Government to conduct an impartial and independent review of its 25-year contract with Kilmarnock Prison Services Ltd on the design, construction, financing and managing of HM Prison Kilmarnock.
I understand that the petitioners might be present. Because of the long evidence session under item 1, we did not have a chance to have a question-and-answer session with the petitioners, but we invite parliamentarians who have expressed an interest in the petition to engage with the committee on it. I welcome to the meeting Margaret Mitchell and Willie Coffey, who is the constituency member for the prison. Does Margaret Mitchell wish to make an opening statement?
Yes. I thank the committee for the opportunity to speak to the petition.
As members know, the contract for Kilmarnock prison, which Serco won, is of 25 years' duration and has operated for 10 years. In that time, aspects of the contract, such as key performance indicators, have proven to be clearly unreasonable. For example, the key performance indicators list 10 events that happen daily in prisons and over which prison officers have no control. If any prisoner self-harms, that attracts five penalty points. Each penalty point costs £400, so five penalty points equate to £2,000, which is taken from the prison's revenue.
Another indicator is entitled "Assault On Prisoner (proven) Serious Injury Assault"—an injury is deemed serious if it requires four stitches, which can be those wee plastic plasters. The Scottish Prison Service does not seem to apply common sense when monitoring such incidents or the whole contract. In a recent incident, two stitch plasters were applied but did not quite stick, so two more plasters were put on just to hold the initial plasters in place. Using four plasters automatically ratcheted the penalty up to 50 points, so the prison incurred a £20,000 penalty—that was revenue lost. Such incidents show that the key performance indicators contain unreasonable terms that could be examined.
A potential conflict of interest exists, because it is unclear where the penalties and fines that have accumulated in the past 10 years—which amount to about £1 million—have gone. If such money goes to the Scottish Prison Service, it is clear that the SPS has a conflict of interest in monitoring performance against the key performance indicators. I am not sure whether the money from penalties goes to the Scottish Prison Service; I hope that the committee will investigate that. Another issue is that the SPS monitors the contract day to day while it competes with Serco and other private contractors for prison service contracts.
Other issues give prison staff at Kilmarnock serious grievances. They do not feel that they have a level playing field with SPS prison officers when it comes to how they are treated. Prison officers at Kilmarnock are subject to a much higher training requirement. That applies at all levels—phase 1, phase 2 and phase 3. Phase 3 is the riot training, which is extremely arduous. Whereas for SPS prison officers who are 50 years or over the arduous phase 3 training is voluntary, at Kilmarnock it is mandatory. The Prison Service Union has tried to get a dispensation for staff of that age at Kilmarnock, but none has been granted.
During the past few years, there have been significant disciplinary problems. In 2004, a prison officer at HMP Kilmarnock, David Lorimer, was investigated and disciplined internally by Serco, but following the process the SPS initially refused to return his warrant badge. The SPS is responsible for issuing warrant badges, which certify prison officers and allow them to work in prisons. Quite simply, if a prison officer does not have that badge, they cannot work in the SPS. It was a little bit disingenuous of the SPS to say in its submission that, ultimately, employment matters were up to the employer at Kilmarnock prison, given that if a prison officer does not have a warrant badge and is not certified by the SPS, they cannot work in the SPS or in Kilmarnock prison.
The final issue that I want to bring to the committee's attention is the duty of care, in relation to which there have been various incidents over the years, two of which I will highlight. In one case, there was a serious incident and a prison officer was assaulted. It was found that there was a design defect with the gates and that a grille needed to be installed. It took the SPS 18 months to approve the installation, during which time prison officers and, arguably, prisoners were vulnerable and at risk.
My second example relates to PAVA spray, which is a kind of pepper spray that is used to deal with incidents in prison. PAVA spray is widely available to prison officers in the SPS, but it is not available to the officers at Kilmarnock. We are all concerned about safety in the workplace and have a statutory duty of care to provide a safe workplace for prison officers. Notwithstanding the reasons that have been given for not issuing officers at Kilmarnock with PAVA spray, the issue should be looked at with a view to rectifying the situation.
I have given the committee a whirlwind tour of some of the main grievances. I hope that members will agree that there are sufficient grounds for deciding that the contract needs to be looked at because serious fairness, safety and financial penalties issues have been raised. If the committee were to deem that an independent review should take place, a lot more information that I have not had sufficient time to go into would make interesting material for that review.
Would Willie Coffey like to add to what Margaret Mitchell said?
I would love to—thank you very much for the opportunity to do so.
First, I commend Stevie Farrell and Willie Buntain, the representatives of the staff at Bowhouse prison in Kilmarnock, for presenting their case to the Scottish Parliament. I have worked with them over the past few years to deal with a number of issues, most of which Margaret Mitchell has raised. When a contract has been in place for 10 years, as I understand is the case at Kilmarnock, it is inevitable that things will have moved on. We have an obligation to look at the contract afresh, to see whether improvements can be made.
I have absolutely no doubt that the intention of Stevie Farrell and Willie Buntain is to improve conditions in Kilmarnock prison on behalf of their members and the staff, to provide a good service for the Scottish prison estate. It is commendable that they have chosen to present the case to the committee, but my understanding is that the current minister's door has always been open and that he would listen to requests from the employer to vary the terms of the contract. That has always been possible—and it is the direction that the committee could take. A simple business agreement has been put in place at Kilmarnock prison to establish the operating conditions, so one party can seek to renegotiate. The simple approach is to ask for a review. As I understand the matter, the Government is willing to listen to that.
My understanding is that PAVA spray is a licensed firearm and that it is illegal to deploy it in the private sector—and that the power to change that remains with Westminster. The spray is not deployed far and wide and has never been deployed in the SPS. My understanding is that it was used in a pilot scheme in Northern Ireland but that it has not been used anywhere in the SPS to deal with incidents in the prison estate.
Margaret Mitchell has raised several issues on behalf of the team at Kilmarnock that require attention and can appropriately and properly be reviewed to the greater benefit of everybody involved. I sincerely hope that the committee takes the opportunity to press that case.
Having heard Margaret Mitchell and Willie Coffey, I believe that the committee should forward the petition. Margaret Mitchell detailed the issue of penalties and fines. At face value, it seems inconsistent that the SPS should monitor the performance of the contract in relation to those penalties. She also said that there seems to be no level playing field between prison officers at Kilmarnock and those in the SPS. Margaret Mitchell and Willie Coffey mentioned PAVA, or pepper spray. I do not know whether that issue is reserved to Westminster.
Initially, we should write to the Scottish Government asking formally whether it will conduct an independent review of HMP Kilmarnock's contract in the terms that the petitioners request and, if so, when—and if not, why. We should also ask for the Scottish Government's response to the issues that are raised in part 5 of the petition. That would be helpful. We should also consider writing to Audit Scotland to ask whether it supports an independent review of the contract and whether the contract represents value for money. That is the way of proceeding that I suggest to colleagues.
Several other questions need to be asked. I presume that Serco won the contract competitively. Does Margaret Mitchell know whether other companies tried to win the contract? Was Serco the sole bidder?
I do not know, but I assume that there was at least one other bidder.
I would like to find out how a company could enter into a contract in the full knowledge that the conditions that were being imposed were very different from the conditions in the rest of the prison service. That seems a bit of an oddity.
We are considering the contract 10 years down the line. It may well be that conditions that seemed reasonable on paper at the time have in practice proved to be unreasonable—there is no other word for it.
Things have changed in the Scottish Prison Service but those changes have not been reflected in the contract, which has been overtaken by events?
That is the case in some instances.
Kilmarnock has stood still while the rest of the world has moved on?
I offer another example of how things have moved on. There is a penalty—I cannot remember how many penalty points are incurred—for finding a mobile phone. Phones were much bigger 10 years ago; now, they are like tiny cards that can be hidden easily.
I am content that there is an urgent need for a review. Is there any concrete and independent evidence that key performance indicators are not used in a way that would minimise penalty points, for example serious injury to staff being downgraded to minor or no injury? The point about Audit Scotland has been covered. I do not know whether we need to cover any other questions, but there are many to which we need answers.
We need to understand the terms and conditions for officers who serve in Kilmarnock prison, who are employed by Serco, because they are not the same as those that operate in the SPS. The committee may have to write to the Scottish Prison Officers Association to ask its views on whether the terms and conditions that apply in Kilmarnock prison are unfair on the prison officers who serve there.
I suggest that we write to Serco for its views on existing contractual arrangements. Although the petition has been presented by staff, it would be useful to hear Serco's perspective on whether it agrees fully with those staff members or whether it can clarify on-going contractual negotiations that take place between Scottish Government officials and Serco in relation to the delivery of services at Kilmarnock prison.
Does Margaret Mitchell know whether the different training requirements are imposed by Serco or by the SPS?
They were laid down in the original contract and are now way beyond any of the standards that are applied in the rest of the Scottish Prison Service. Following on from what John Wilson said, one question is whether Kilmarnock prison officers are deemed to be Crown servants. That is unclear, despite the fact that they have an extra level of training that far exceeds that in any other equivalent establishment in the prison service. For example, they provided mutual aid when there was a major incident in Edinburgh prison in 2004. I do not think that we can have it both ways—Kilmarnock officers are either on a level playing field with SPS staff or they are not.
That point should be clarified if we are writing to the Scottish Government about the petition.
It is probably unreasonable to ask the Government to hold an independent review—I do not know whether it is sensible to expect a Government to have an independent review of its own contract—but we can ask it whether it will review what it is doing.
The people whom we can expect to be independent are at Audit Scotland. I know that the Government will not tell Audit Scotland what to do—we cannot do that—but we should ask Audit Scotland whether it will look at the situation. It is a classic case of where it can bring an independent and professional view.
I do not disagree with Nigel Don. We could phrase our request, "Will the Scottish Government set an independent review in train?" In that way, we could get over the problem that he raised.
The petition specifically asks for an independent review, so we have a dilemma—although, in a sense, it is a matter of interpretation. The point is that we want to ask the Scottish Prison Service, the Scottish Government, Serco and the Scottish Prison Officers Association a series of big questions. We want to pull all that together before we decide what to do next.
The petition calls on the Parliament to urge the Government to
"conduct an impartial and independent review".
You do not have to do that yourself; you can simply set it in train.
I thank committee members for their comments, which have been very fair. If it is found that there are unreasonable aspects to the contract, perhaps the Unfair Contract Terms Act 1979 would kick in, which would address the problems to which Nigel Don referred. I thank the committee for giving the petition a fair hearing.
The onus should lie squarely with the contract holder—the employer. If it wishes to renegotiate the terms of the contract, it is entirely appropriate for it to make representations to the Government to seek to negotiate, rather than the other way around. It would be up to the employer. The staff have done a great service to their members by raising these issues in the hope that they can be highlighted, but the onus is on the employer to make the move to seek to renegotiate. I think that there is an open door there.
I thank the petitioners for lodging the petition and I thank the elected representatives for the area for their contribution. I hope that you have heard from our discussion a willingness to explore in detail some of the fundamental issues. I hope that we can arrive at a conclusion that is satisfactory for everyone involved in the process. We will explore these issues. The petition will come back to the committee and Willie Coffey and Margaret Mitchell will have an opportunity to interrogate the issue and participate in the discussion. Thank you for your time.
Schools (Health Promotion and Nutrition) (Scotland) Act 2007 (PE1244)
PE1244, by Donna Mathieson, on behalf of Aberlady primary school parent council, calls on the Scottish Parliament to urge the Government to revise the regulations and guidance under the Schools (Health Promotion and Nutrition) (Scotland) Act 2007 to allow schools to provide full-fat milk where the child and the parents have indicated that that is their wish. We have the papers on the petition in front of us. Do members have any comments?
We could usefully write to the Scottish Government to ask whether it will consider revising the regulations and accompanying guidance under the 2007 act; if so, when that will happen and, if not, why not. We could also ask for its response to the eight specific points that the petitioner has made. There seems to be contradictory evidence as to what full-fat milk is. The petition quotes Dr Rafe Bundy as saying:
"Full fat milk is actually a low fat food."
I do not have expertise on that, but I am sure that somebody in the Scottish Government will be able to say which of the experts is correct.
There is a serious issue about tackling obesity and whether it is necessary to have semi-skimmed milk and so on. We will see. We should ask the questions.
I do not disagree for a moment with what Bill Butler said, but perhaps we have to try to encourage the Government to give some reasons for its advice as well as just stating what its advice is. Now is not the time to go into nutrition—I have done research on some of this. I have very little doubt that the advice is good and that it is given for good reasons. However, if those reasons are not known to anybody other than professional nutritionists, the Government has failed to communicate properly.
As well as the questions that Bill Butler suggested, we need to ask the Government to justify its guidance in such a way that we, as laymen, can understand it and can communicate it to the petitioner and to the many other people who will be asking similar questions.
Can we also ask NHS Health Scotland for its view on the matter? It has a major role in child health.
Members suggest that we should seek further clarification on the guidance that stems from the 2007 act, on the whole issue of parental choice in that process and on the existing evidence base. We can perhaps explore those issues with the various agencies that we know have responsibility for such matters. We will keep the petition open until we get further information.