Good afternoon. The first item of business is a debate on motion S4M-12878, in the name of Michael Matheson, on the Prisoners (Control of Release) (Scotland) Bill at stage 1.
Before I call the cabinet secretary to speak, I express my regret that he was late for proceedings—I consider that a discourtesy to Parliament—and therefore we have started late.
I begin by apologising for my late arrival, which was entirely my fault and responsibility.
I welcome the opportunity to speak in this debate at stage 1 of the Prisoners (Control of Release) (Scotland) Bill. I thank the Justice Committee, the committee’s clerks and those who gave evidence during stage 1 scrutiny of the bill.
I welcome the support for the bill’s general principles that is given in the committee’s stage 1 report. The issue of the early release of prisoners has been raised in Parliament frequently since the current system was introduced nearly 20 years ago. Section 1 of the bill will fundamentally change the system of automatic early release for long-term prisoners. A long-term prisoner is anyone serving a sentence of four years or more. Currently, such a prisoner is entitled to automatic early release if they are still in custody at the two-thirds point of their sentence.
The system operates so that there is absolutely no discretion to keep dangerous prisoners in custody beyond the two-thirds point. In our view, that is not the right system. The system’s operation has regularly brought criticism because it is difficult to explain why dangerous prisoners have to be released in that way when one third of their sentence is left.
The alternative to automatic early release is discretionary early release. That is where the independent Parole Board for Scotland considers an individual prisoner’s case and decides whether to authorise early release on the basis of an assessment of the risk that the individual poses to public safety.
The evidence is clear: the rate at which prisoners breach their licence conditions when granted automatic early release is seven times higher than the breach rate for prisoners who are granted Parole Board discretionary early release. The rate at which prisoners are recalled to custody when granted automatic early release is five times higher than the recall rate for prisoners who are granted Parole Board discretionary early release. The independent Parole Board does a challenging and difficult job well, and the bill will give it further powers to carry on its good work and to consider more individual cases in the future, rather than indiscriminate automatic early release taking place at the two-thirds point of the sentence.
We think that it is right to trust the Parole Board’s judgment by giving it that enhanced role. It will help to keep our communities safer while allowing parole release to aid a prisoner’s reintegration into the community when the risks to public safety are manageable in the community.
In early February, we announced that we would expand the bill’s reach to end the current system of automatic early release for all long-term prisoners. That is the right approach to apply our policy’s benefits to a wider group of prisoners.
If Parliament approves the bill, including our stage 2 proposals, that will mean that no prisoner receiving a sentence of four years or more will be entitled to automatic early release at the two-thirds point of the sentence. Decisions about early release will be left to our trusted independent Parole Board. Dangerous prisoners will no longer be entitled to leave custody two thirds of the way through their sentence. If a prisoner is assessed as posing an unacceptable risk to public safety, they will serve their sentence for a longer period in prison. That will help to reassure communities, reduce reoffending and protect public safety.
Concerns were expressed at stage 1 that, following our reforms, some long-term prisoners might be left in a position where they were subject to what has been called “cold release”—release without the ability to apply specific controls over the prisoner through supervision of them in the community. We have listened and responded to those concerns by committing to ensuring supervision through a period of mandatory control, which will now apply to all long-term prisoners leaving custody.
That mandatory control period will help to ensure effective assistance to reintegrate prisoners into their communities. Robust steps will also be able to be taken to bring prisoners back into custody if conditions of release are breached.
It is important to stress that the need for a mandatory control period will apply to a relatively small proportion of long-term prisoners. That is because many long-term prisoners will continue to receive Parole Board early release or will have an extended sentence in place. For those prisoners, a period of mandatory control will always be in place on release from custody, through licence conditions. However, when a prisoner does not receive Parole Board early release and does not have an extended sentence, a mandatory control period on release needs to be put in place, with the conditions set by the Parole Board.
The Justice Committee’s stage 1 report raised two important issues about the mandatory control period. First, the committee explored whether the period might be part of the sentence. It is clear that a mandatory control period after a sentence had ended would be problematic, given that the sentence has been imposed by the court and has ended. It is difficult to see how such a period of mandatory control could be effectively enforced if it was post sentence end. In line with the evidence that the committee received, we therefore consider that the mandatory control period in the community should be part of the sentence.
Secondly, the committee explored how long the mandatory control period in the community should last. Any prisoner requiring supervision through a mandatory control period will have spent, as a minimum, close to four years in custody. Our view is that the necessary period of control over a prisoner who has served close to four years is likely to be similar to that of a prisoner leaving after, say, 10 years in custody, given that both are extremely long periods to be incarcerated.
Members will be aware from the evidence that they have heard that the initial weeks and months following release are generally the most crucial for prisoners. That period after leaving custody is when prisoners have to re-establish themselves in their communities, when challenges such as those faced in accessing housing or work opportunities can be at their most acute and when a mandatory control period would be most appropriate.
At this stage, I am minded to provide for a minimum mandatory control period of six months. Such a period would seem a good balance, so that mandatory control is in place in the crucial first few weeks and months following a long period of incarceration, but it does not extend too far into the future. However, I would welcome further views in the debate about the appropriate length of the mandatory control period.
Reducing reoffending is a key justice priority for the Scottish Government. Earlier this week, we announced that the reconviction rate fell by nearly 6 per cent between 2011-12 and 2012-13 and that it is now at its lowest level in 16 years. That is welcome news. Coupled with recorded crime being at its lowest level in 40 years, that is testament to the commitment of the police, prosecutors, our courts, education and social services and other justice partners such as the Scottish Prison Service, which are working hard to address offending and its underlying causes.
Despite those significant improvements in recent years, reoffending has significant implications for public services and taxpayers’ money. Reducing reoffending requires more effective and closer links between the criminal justice system and wider public and third sector partners. A Scottish Government ministerial group on offender reintegration was established in October 2013 to address the demand for better integration between the criminal justice system and wider public services so as to facilitate a reduction in reoffending.
Individuals rely on key public and third sector services to address a range of basic and practical requirements on release from prison. Failure to address them in a timely and effective manner can hinder prisoners’ ability to turn their lives around and live a life free from crime. Section 2 of the bill will help in that important area.
In 2011-12, there were approximately 10,500 liberations of convicted prisoners, of which a large proportion—approximately 40 per cent—were released on a Friday or on the Thursday preceding a public holiday weekend. Release on the days preceding weekends and public holidays is consistently raised as a key barrier to plugging the gap between receipt of support in custody and access to wider services in the community. Access to key public services such as housing, welfare and addictions services on the day when prisoners are released can be crucial in helping them to break the pattern of offending. The problem can become even more acute when release happens immediately before a weekend or public holiday.
When there is evidence that suitable arrangements are required to address a prisoner’s reintegration needs and they cannot be addressed immediately on release, section 2 will allow the prisoner’s release to be brought forward by up to two days. I welcome the Justice Committee’s strong support for section 2.
The bill will improve the system of early release by allowing decisions about how and when long-term prisoners are released from custody to be informed by individual consideration of a prisoner, the risks to public safety that the prisoner poses and the need for effective supervision. That is the best of both worlds and ensures that dangerous prisoners do not get released automatically, while all long-term prisoners will receive a minimum mandatory control period in the community when they leave custody. That is the best way to protect communities and to reassure the public.
I move,
That the Parliament agrees to the general principles of the Prisoners (Control of Release) (Scotland) Bill.
I call Christine Grahame to speak on behalf of the Justice Committee.
14:46
Thank you, Presiding Officer. I welcome the opportunity to speak in the debate and, as you say, I speak as the convener of the Justice Committee. I will speak to the bill as introduced and therefore will not comment on the items that have been mentioned that result from our report, particularly those that might be raised in amendments at stage 2.
I thank all those who provided written submissions and gave oral evidence to the committee. In total we received 27 written responses to the call for evidence and took oral evidence across three meetings in January 2015. I also thank the Delegated Powers and Law Reform Committee for its report, which we endorse whole-heartedly. Finally, but not least, I thank my colleagues on the Justice Committee, who are a delight to chair. I look forward to that continuing.
Provisions to end automatic early release for certain categories of prisoner were previously due to have been introduced by means of stage 2 amendments to the Criminal Justice (Scotland) Bill. However, the then Cabinet Secretary for Justice wrote to the committee on 27 May 2014, advising us that the provisions would be brought forward as a separate piece of legislation. The Prisoners (Control of Release) (Scotland) Bill was therefore introduced on 14 August 2014.
Some of what I say will undoubtedly repeat what the Cabinet Secretary for Justice has said, but there we go. He referred to section 2 and the early release for community integration, which is the lesser talked about part of the bill but is a very important practical part; that cannot be said of every nook and cranny of the legislation that we pass in the Parliament.
As well as seeking to end automatic early release, the committee felt that the measures giving flexibility on the date of release will have a real impact on stopping recidivism. As the cabinet secretary has said, those people who are due for release on a Friday, and sometimes a Thursday, when key services are about to close—the benefits office, housing services, even the GP practice—can be let out when they can access those crucial services. In practical terms, the other situation was ridiculous.
The early hours—not just days—of release are crucial. Things can go wrong when the prisoner steps straight out of the prison gates into what could be called a services vacuum; that is when reoffending recommences. Having timely access to services will help a person’s reintegration and ultimately reduce the chances of them reoffending, which is in everyone’s interest. It is a positive, progressive measure.
Although much of the focus of today’s debate will doubtless be on section 1, we should not lose sight of what is an important and practical move. At the outset, I want to put on record the committee’s whole-hearted endorsement of section 2.
I turn to section 1, on the restriction of automatic early release. I use the word “restriction” as I refer again to the bill as introduced, which was just going to end automatic early release for sex offenders receiving determinate custodial sentences of four years or more and other offenders receiving determinate—that is, other than life sentences—custodial sentences of 10 years or more.
The evidence that we received on section 1 was generally sceptical of the provisions of the bill as introduced, with witnesses such as the Risk Management Authority Scotland questioning the focus on sex offenders, given that—despite tabloid headlines—that category of prisoner is statistically less likely to reoffend, notwithstanding the fact that there have been some very serious and horrible exceptions. The committee was therefore pleased to receive, on 3 February, a letter from the cabinet secretary committing to lodge at stage 2 amendments to extend the bill’s provisions to all prisoners serving four years or more, thereby addressing the concerns that had been expressed about the focus on sex offenders.
Witnesses also questioned other aspects of the bill as introduced, such as whether it would achieve the objective of improving public protection. Academics such as Professor Cyrus Tata from the University of Strathclyde argued that the provisions would simply lead to an increase in cold release. That is because, if prisoners are released at the completion of their full sentence, there is no requirement for compulsory supervision—I know that the cabinet secretary has addressed that—hence the word “cold”, as in, I suspect, doing cold turkey.
Professor Fergus McNeill from the University of Glasgow described that as an act of “storing the risky”, as the types of prisoners who will be kept inside under the provisions of the bill are, by definition, those who have not engaged with the Parole Board for Scotland and who pose the greatest risk to the public. Witnesses worried that the bill as introduced would simply kick the can down the road and store up bigger problems for later years. It could also have a perverse effect, in that some prisoners might opt to do their full whack and thus avoid any supervision on release. The committee was pleased to receive the cabinet secretary’s letter, which committed to lodging amendments to provide a minimum period of compulsory supervision in the community, as he has described today, for each long-term prisoner at the end of their sentence. I welcome the cabinet secretary’s willingness to listen to the evidence heard at stage 1 and to act accordingly.
Having said that, the committee has some remaining questions, which are rehearsed in detail in our report. We are still unclear as to how the compulsory supervision will be imported into the sentencing process, what the compulsory supervision will look like in practice and when it will apply, although we have now been told for how long. We also still have questions about the cost of the proposals and the impact that they will have on the likes of the Parole Board and criminal justice social workers, to name two of the stakeholders involved. We have therefore recommended that the Government publish supplementary financial and policy information at stage 2.
During stage 1, we received evidence about the availability of prison rehabilitation programmes, with some witnesses claiming that there was a supply problem with certain programmes, as opposed to a lack of demand. The Scottish Prison Service acknowledged some of those concerns, but countered that issues around supply may relate to prisoners’ wants rather than their needs. However, we would welcome updates from the cabinet secretary and the SPS on the development and resourcing of programmes, given that the bill’s policy memorandum envisages that the provisions of the bill will incentivise prisoners to engage with programmes.
Connected to that, we were told by Professor Alan Miller of the Scottish Human Rights Commission that the bill’s human rights statement was inadequate. That concerned us, and we have called on the Scottish Government to revisit that statement. For example, if there is no access to rehabilitation programmes and that imperils a prisoner’s release, that prisoner might have a claim under the European convention on human rights.
We also have questions about the impact of the bill on the Parole Board. Professor Tata argued in evidence that the Parole Board was being set up for failure. That comment was disputed by the convener of the board, but the board subsequently wrote to the committee stating that
“it may need some support from Scottish Government to manage the impact.”
We therefore called on the Government to ensure that the Parole Board is sufficiently resourced.
Clarity in sentencing is important to the victims. Some witnesses told us that the bill muddied the waters in respect of sentencing. That was disputed by the cabinet secretary, who argued that the bill gives victims the certainty that the offender will not be released automatically two thirds of the way into their sentence.
Alternative approaches were suggested. Some witnesses suggested an alternative approach would be to commence an existing statute, namely the Custodial Sentences and Weapons (Scotland) Act 2007, as amended by the Criminal Justice and Licensing (Scotland) Act 2010.
Other witnesses believed that the bill should be delayed until the Scottish sentencing council is set up in autumn this year. On balance, committee members were not persuaded of the merits of delaying the bill. However, we call on the Government to review legislation in this area to establish which wider reforms should be taken forward.
In conclusion, an overwhelming majority of committee members welcomed the general principles of the bill. There is no doubt, from the evidence that we heard, that reform of the court service is long overdue. However, in certain areas, as I indicated, we remain to be convinced that some of the measures will achieve what they set out to achieve. On behalf of the committee, I encourage the Parliament to support the general principles of the bill at decision time tonight.
14:55
I thank the clerks and the witnesses for their efforts in bringing a lot of issues to the committee’s attention during the stage 1 process.
The Scottish National Party manifesto in 2011 stated that the party would
“remain committed to ending automatic early release once the criteria set by the McLeish Commission are met.”
However, we must be clear about the fact that the bill does not end automatic early release. As introduced, it would have affected 1 per cent of offenders; with the suggested amendments, it will affect 3 per cent of offenders. The vast majority of offenders, and perceptions of sentencing among the vast majority of victims of crime, will not be affected by the bill even as amended.
Of people receiving a custodial sentence in 2012-13, 317 offenders were serving sentences of more than four years; 47 were serving life or indeterminate sentences; and 14,084 were given short-term sentences of less than four years. The offenders who are serving short-term sentences will still be released after serving one half of the sentence and—other than sex offenders who are serving six months or more—they will not be subject to supervision by criminal justice social work.
In 2011-12, the reconviction rate for offenders serving between three and six months was 53 per cent, whereas the rate for prisoners serving more than four years was 13 per cent.
The Scottish Government is not making much progress in achieving the reduction in prison population that was recommended by the McLeish commission. The cabinet secretary cited some figures today; however, the prison population statistics go up and down. In 2011-12, for example, there was an increase in the average prison population of 4 per cent over the previous year; a 9 per cent increase in those on remand; and a 3 per cent increase in the sentenced population, with a projection—from the Scottish Government’s own figures—that the average prison population would increase to 9,500 by 2020-21. It does not look as if automatic early release will be ended in the near future or even in the medium term.
The policy memorandum to the bill states that its provisions will improve public safety, but the extent to which they will do that is debatable given that the bill legislates for the cohort of prisoners with the lowest reconviction rates. Obviously, those offenders have been convicted for much more serious crimes, and therefore their reoffending could be more dangerous.
However, Dr Monica Barry of the University of Strathclyde told the committee when giving evidence on the original bill that
“sex offenders are the most compliant of ex-prisoners you will find.”—[Official Report, Justice Committee, 13 January 2015; c 2.]
The Risk Management Authority Scotland agreed, based on Parole Board for Scotland statistics, and suggested in written evidence that the bill should refocus on
“risk of serious harm rather than offence type.”
Dr Barry also advised the committee:
“If the Government is piloting this with high-risk violent offenders and sex offenders, it is probably piloting it with the wrong people. If it is going to abolish early release, it should be going for the lower end, such as dangerous driving, which is probably a higher risk to the public than sex offenders, or common street crimes such as shoplifting, theft or breach of the peace.”—[Official Report, Justice Committee, 13 January 2015; c 6.]
One of the major concerns over the bill as drafted was that violent offenders who did not qualify for early release would be released into the community cold, with no supervision. Sex offenders are subject to the multi-agency public protection arrangements—or MAPPA—with regard to the risk that they pose on release, but although legislation permits those arrangements to be extended to violent offenders, the provisions have not yet been commenced.
There was not much to recommend the bill as drafted. Rather than improving public safety, it could have jeopardised public safety by releasing dangerous unreformed violent offenders into the community without supervision. It also singled out sex offenders serving long-term sentences, who the committee was advised are less likely to reoffend.
The Cabinet Secretary for Justice is to be commended for listening to the evidence of witnesses and subsequently proposing amendments that will extend the ending of automatic early release to all long-term prisoners and—importantly—ensure that all such prisoners are subject to supervision on release, including when they have served the full term of the sentence. However, without seeing the amendments, it is difficult to comment much further, other than to welcome the cabinet secretary’s recognition that the original bill was seriously flawed.
To what extent will the amended bill equate to a partial introduction of the provisions of the Custodial Sentences and Weapons (Scotland) Act 2007, as amended by the Criminal Justice and Licensing (Scotland) Act 2010, in introducing for long-term prisoners sentences that are composed of a part that must be served in custody and a part that will be served under supervision in the community? Witnesses in the final evidence session, which took place after the cabinet secretary had written to the committee on his intentions to amend the bill, were unclear whether the cabinet secretary was proposing to add compulsory supervision to sentences that had already been completed in custody, or the provision of compulsory supervision in the community as part of the original sentence. According to Dr Barry and Professor Fergus McNeill, the former would amount to a type of new sentence.
Scottish Labour agrees that there should be clarity in sentencing and that victims, the community and offenders should understand what the imposed sentence means in practice. Unfortunately, as things stand, it is not clear how that will be achieved. Moreover, it will be achieved only for victims of a small number of albeit serious offences.
Several witnesses expressed concerns that the bill addresses only back-door sentencing—the release arrangements—and does not consider front-door sentencing, or sending people to prison in the first place. The Howard League Scotland, Professor McNeill and Professor Tata suggested that the work of the Scottish sentencing council—which will, we understand, be set up at long last in October this year—is being pre-empted by the bill. Professor Tata told the committee:
“One of the beauties of such a body is that it can be a buffer between the judiciary, the parole board, the SPS, social work and other parts of the system that are trying to do their job and, if you like, penal populism. It can take the heat out of the situation. If a case is given to the sentencing council to be looked at, that immediately takes it away from the control of ministers and the political pressures that they are under.”—[Official Report, Justice Committee, 20 January 2015; c 9.]
We are all under those pressures, too, of course.
There are significant human rights concerns, as Christine Grahame has already said. Professor Alan Miller described the human rights impact statement as “not adequate”, and he had particular concerns about offenders’ rights if they are refused early release by the Parole Board for Scotland under circumstances in which rehabilitation programmes that may have made them eligible have not been available.
An answer that my colleague Graeme Pearson received last month revealed that, of the 900 sex offenders who were in custody, 120 had completed or were undergoing the moving forward: making changes sex offender programme and 150 offenders had been assessed as potentially benefiting from the programme. The answer that the chief executive of the Scottish Prison Service, Colin McConnell, provided said that they
“may proceed to do so according to their case management plan, their continued motivation and”—
this is important—
“as resources allow”.
He also said that 100 offenders had refused treatment.
The chief executive of the Scottish Prison Service spoke to the committee about the difference between wants and needs. That answer says that 150 sex offenders have been assessed as potentially benefiting from the programme, but they may get it only if resources allow. If any of those offenders is refused early release because they have not been able to access the MFMC programme because of a lack of resource, they may well have a human rights challenge. That really needs to be looked at.
As the cabinet secretary and Christine Grahame have said, section 2, which introduces early release for community reintegration, was welcomed by all the witnesses and, indeed, all the members of the committee, as it was seen that that would be of benefit to prisoners who may be released at the weekend without adequate services being in place for them after release.
The decision to substantially amend the bill at stage 2 means that neither the policy memorandum nor the financial memorandum is now accurate. We believe that, once the cabinet secretary has decided on the exact form of his amendments at stage 2, it will be necessary to issue supplementary memorandums that reflect the significant changes in the bill.
Had the cabinet secretary not indicated that he was prepared to amend the bill at stage 2, Scottish Labour would have voted against the bill as drafted. It would have ended automatic early release for a very small number of offenders—only 1 per cent—and would have had the unintended consequence of releasing dangerous, unreformed offenders cold into the community without supervision at the end of their sentence. Their automatic early release would have been withdrawn, but potentially they could have been of greater danger to the public at the point of release.
The original plan, of course, was to introduce the provisions as stage 2 amendments to the Criminal Justice (Scotland) Bill, which, as we know, is suspended pending the Bonomy review of any safeguards that are required by the abolition of the requirement for corroboration. Thankfully, that did not happen, because if the proposals had been brought in by way of stage 2 amendment to the Criminal Justice (Scotland) Bill, they would not have been subject to the degree of scrutiny that has been applied to the Prisoners (Control of Release) (Scotland) Bill. That scrutiny resulted in the current cabinet secretary listening to the concerns of witnesses and indicating that he was prepared to substantially amend the bill.
As the cabinet secretary has done that, we will support the bill at stage 1. We do not yet know what the amendments will be, or whether and how they will adequately address the points that witnesses made to the committee. Those are matters for discussion at stage 2 and stage 3, and we will come to our conclusions at those stages.
Scottish Labour wants to go further than the bill does on sentencing policy and on the transparency of sentencing. Even with the proposed amendments, the bill will not be enough, but we are prepared to give the Government the benefit of the doubt and to support the bill at decision time in the hope that, once it has been amended at stage 2, it will achieve—albeit to a limited extent—a better outcome than the current situation.
15:05
This stage 1 debate on the Prisoners (Control of Release) (Scotland) Bill is an important one. I thank the clerks, the convener and my fellow members of the Justice Committee for all their hard work, and I pay tribute to all the witnesses, who gave such invaluable evidence.
The bill has two main sections. Section 2 seeks to provide the Scottish Prison Service with the power to release prisoners up to two days early in order to facilitate community reintegration. That is a sensible provision that seeks to create the flexibility to ensure that appropriate throughcare, including housing and so on, is in place for prisoners on their release in an effort to deal with some of the problems that we know lead to reoffending after release.
I turn to section 1. Although I sympathise with the predicament that the new cabinet secretary has inherited, that does not alter the fact that the bill as drafted—and the proposed stage 2 amendments—is nothing short of a dog’s breakfast.
The aim of the bill is to reduce reoffending and increase public safety. That was the supposed rationale behind targeting the provision at offenders who had received sentences of more than 10 years and sex offenders who were serving sentences of four years or more. However, as witnesses pointed out, there is no logic in targeting that particular group because evidence shows that sex offenders have the lowest reoffending rates of all categories of prisoner.
In addition, the bill would apply to less than 1 per cent of offenders in Scotland. The cabinet secretary clearly recognised that the original proposals fall well short of the mark, so the Scottish Conservatives welcomed the improvement that the cabinet secretary announced when he indicated that he intends to extend abolition of automatic early release to all prisoners who are serving long-term sentences of four years of more. That means that at least we have moved from the bill covering 1 per cent of prisoners to its covering 3 per cent of them, but that does not alter the fact that 97 per cent of prisoners will still automatically be released early. As the cabinet secretary said in evidence to the committee,
“It is worth keeping in mind that we are talking about a very small number of prisoners and that it will be several years into the future before any of this will start to have an impact.”—[Official Report, Justice Committee, 3 March 2015; c 47.]
It is therefore a real concern that, as the Law Society of Scotland stated,
“the most radical change in custodial sentencing policy for twenty-two years is to be introduced by way of a government amendment”.
Will Margaret Mitchell take an intervention?
If Mr Allard does not mind, I will make some progress.
That is not a precedent that the Scottish Parliament should set or encourage, and nor is the cabinet secretary’s piecemeal filtering down of more information as recently as yesterday, in an attempt to address the numerous unanswered questions that the proposed change has prompted, any more acceptable.
Furthermore, evidence from witnesses such as the University of Strathclyde’s Professor Cyrus Tata highlighted the fact that the proposals could result in a prisoner being released without supervision on what has been termed “cold release”. He confirmed that, in such cases, released prisoners would be more likely to reoffend.
Moreover, instead of clarifying already complicated sentencing policy, the bill—to quote Dr Monica Barry from the University of Strathclyde—merely “muddies the water”.
Victim Support Scotland wants
“greater clarity and transparency in the system, so that victims and the community are better able to understand sentencing.”—[Official Report, Justice Committee, 24 February 2015; c 14.]
That is why it supports the Scottish Conservatives’ call for the ending of automatic early release for all prisoners, which would provide clarity and honesty in sentencing.
Witnesses have also raised issues regarding the shortage of places on rehabilitation programmes in prison. With demand outstripping supply, there is—as Professor Miller confirmed—an issue about the human rights impact statements being inadequate. Therefore, the committee recommended that an independent assessment of the provision and availability of rehabilitation programmes in prison be carried out. I look forward to hearing the cabinet secretary’s response to that.
The Justice Committee’s task was to scrutinise the bill. In addition to dealing with all the flaws that I have just identified, it is being asked to form a view on a policy change that has been announced at the final hour, without having sight of a revised policy memorandum, financial memorandum or explanatory notes. That is hardly conducive to effective scrutiny. Stakeholders across the board have echoed that view, and many witnesses are calling for the bill to be withdrawn.
For those reasons, I dissented in committee from agreeing to the general principles of the bill. Those reasons are also why the Scottish Conservatives will abstain at stage 1.
15:11
I speak on the bill in my capacity as convener of the Delegated Powers and Law Reform Committee. Although the bill contains only one delegated power, the committee has concerns about how that power may be exercised. Indeed, the strength of the committee’s concerns is such that it agreed that I should take the unusual step of contributing to the debate from its perspective.
Section 3(2) provides that the Scottish ministers may, by order, bring sections 1 and 2 into force on an appointed day. Section 3(3) provides that such a commencement order
“may include transitional, transitory or saving provision.”
In considering the bill, the committee noted that a commencement order made under section 3 will not be subject to any form of parliamentary procedure, irrespective of whether it includes transitional provisions. That provision for the attachment of transitional provisions to a commencement order, combined with the lack of opportunity for parliamentary scrutiny of such provisions, has prompted me to speak today.
The committee has accepted in principle that
“transitional, transitory or saving provision”
may be required in a commencement order under the bill, but it considers that the use of such provisions could have a significant effect on certain persons who will be affected by the bill. For example, the committee noted that a commencement order that is made under section 3 could contain transitional provisions relating to the adjustment of prisoner release dates and that it may be possible for the powers to be exercised in such a way as to have different effects on different prisoners. The possibility of different effects on prisoners could, depending on the provisions, raise consideration of rights that are protected by the European convention on human rights.
The committee wrote to the Scottish Government to ask whether it would consider lodging an amendment to make the power at section 3(2) subject to parliamentary scrutiny through negative or affirmative procedure. The Government’s response explained that the powers in subsections (2) and (3) would be used to make a straightforward commencement order that would relate specifically to commencement of the bill. Therefore, the Scottish Government did not consider it necessary for the power to be subject to any form of parliamentary scrutiny.
However, on considering the response, the committee’s view remained that where a commencement order includes transitional, transitory or saving provision under section 3(3), it should be subjected to parliamentary scrutiny. Therefore, the committee recommended in its report that the Scottish Government lodge an appropriate amendment at stage 2 to make a commencement order made under section 3(2) subject to negative procedure if it contains such provisions.
However, the Government’s response to the report reiterated its view that it would not be appropriate for the power at section 3(2) to be made subject to any form of parliamentary procedure other than an order being laid before Parliament. The Government also pointed out that Parliament will be given an opportunity to express its views on a commencement order made under section 3 when it is laid.
We are not persuaded by that response. The committee’s view remains that, where a commencement order includes a transitional, transitory or saving provision that is of the potential significance of those for the bill, then such a power should be subject to parliamentary scrutiny.
Is it the committee’s view that that is not simply a matter in relation to this bill, but a principle that it wants to apply in similar circumstances in similar bills?
Stewart Stevenson’s point is absolutely fair. As a member of the DPLR Committee, he will accept that that is our concern. We have tried to bring principled arguments to bear on this bill as we would with every other bill. The point that I am making is the same one that I would make about any other bill in similar circumstances.
Merely providing for an order to be laid does not, in the committee’s view, allow Parliament sufficient opportunity to scrutinise it, nor does it offer Parliament any sanction should it have any concern about the order. Therefore, I would welcome an assurance that the Scottish Government will reflect on the matter further, with a view to amending the bill at stage 2.
15:16
In historical terms, parole is quite recent, and the Parole Board for Scotland was set up only in 1968. Parole was subject to an important review by Lord Kincraig in 1989, in which he stated:
“the proper objective of parole is to ensure that the release of all long-term prisoners takes place under such conditions and at such a time (within the overall sentence of the court) that the risk to the public may be minimised; and that decisions on the conditions and timing of release take into account, amongst other things, any changes in the offender or his circumstances and any increased knowledge of the offender since the passing of the original sentence.”
That was the position then. In my view, it remains true today.
Of course, the Conservative Government of the day put in legislation the changes that were proposed by Lord Kincraig. It is interesting to read Ian Lang’s comments from the time on what became known as the Prisoners and Criminal Proceedings (Scotland) Act 1993. He argued in support of the then new early-release provisions and in opposition to those who argued that the sentence of the court should be precisely that. Times have moved on. The modern Conservative Party appears to take a different view, although I must say that I find it rather difficult to accept that a party that is opposed to, and which believes in ending, automatic prisoner release across the board can dissent from the bill’s general principles.
On the Justice Committee’s report, it is fair to say that in the course of our evidence sessions there was disquiet that sex offenders serving four years or more, rather than all offenders serving four years or more, were highlighted in the bill. It is certainly more appropriate to concentrate on the length of sentence than on the type of offender. Therefore, I warmly welcome the proposed stage 2 amendments in that regard.
We also need to bear it in mind that the bill is in addition to existing powers that are available to the courts in relation to extended sentences in which, at the time of sentencing, offenders are thought to be likely to pose a continuing risk. Even under the likely stage 2 amendments, what we are talking about will apply only to a small cohort of prisoners—about 3 per cent of offenders receive a determinate sentence in any one year.
The full impact of the bill will be measured over several years. As has been pointed out on numerous occasions since the McLeish commission reported, until overall prison numbers are significantly reduced it will not be possible to extend provisions more widely in relation to the ending of automatic early release. However, it is a start, especially when—as the cabinet secretary has said—we know that someone who is released automatically at present is about seven times more likely to breach their licence conditions than someone who is released after a Parole Board decision.
As the cabinet secretary said in evidence, in 2012-13
“The rate at which non-parole-released prisoners breached their licence conditions was 37 per cent, compared with 5.5 per cent for parole-released prisoners.”—[Official Report, Justice Committee, 3 March 2015, c 35.]
I hope that that will enable proper focus on rehabilitative programmes, which go hand in hand with the ending of automatic early release. As the policy memorandum makes clear, the absence of automatic early release may encourage greater interest in participation in the programmes. How great an incentive it will be remains to be seen, but I am encouraged that Professor Alan Miller of the Scottish Human Rights Commission accepted that it will provide an incentive to participate.
The important thing must surely be to ensure that we have the resources available for rehabilitation. As Colin McConnell of the Scottish Prison Service said in evidence, we need to
“prioritise and sensitise the opportunities that best match the needs of the individual”,
while recognising that
“we do not always match their wants.”—[Official Report, Justice Committee, 20 January 2015; c 20.]
As the Government points out in its response, however, the Scottish Prison Service is shortly to put in hand a review of SPS programmes that is to be conducted by an external expert. Clearly, that should be a priority. Protection of the public must remain paramount. We heard in evidence concerns about what was described as “cold release”, and the Government has been wise to respond to those concerns.
In its written submission, Sacro suggested a period of compulsory supervision of three months before the end of a sentence. Colin McConnell said that, in his experience, the first six to 12 weeks after release can be extremely risky. The Government has indicated that it is minded to provide for a mandatory control period of six months as a minimum, in order to provide sufficient time to balance any necessary protective conditions with work by criminal justice social work departments in assisting the prisoner with their reintegration and rehabilitation in the community. I believe that that is a considered response to the concerns that we heard in evidence, and I warmly welcome it.
We also heard evidence about the need for clarity in sentencing, which was a particular concern of Victim Support Scotland. It is clear from the bill, however, that that is not the purpose of the legislation. Nonetheless, we should wish the new Scottish sentencing council well in its task, particularly in promoting greater awareness and understanding of sentencing policy and practice.
On section 2, which relates to the date of release, I simply echo what has already been said. Like the committee in general, I fully support the provision.
The bill will change significantly at stage 2. In my view, the Government has seized the initiative and has signalled its intentions in that respect already, which is to be welcomed. We ought to consider taking further evidence at stage 2, but I do not share the views of those who think that we should abandon the bill and that the matter is best left to others such as the new sentencing council. I believe that we need to continue to respond to public concerns and not to delay further a significant change in response to those concerns.
15:22
There is little doubt that the criminal justice system in Scotland is in desperate need of reform. The aspect of that system that the bill seeks to address—sentencing—is a contentious issue, but I think that we will find near-unanimous support in the chamber for the ending of the automatic release of the sort of offenders who are covered by the bill’s provisions.
That does not mean that the legislation and the Scottish Government’s overall approach to sentencing have been a straightforward process. That the Scottish Government attempted to squeeze the content of this important bill into a previous bill is regrettable, but we should be grateful that it listened to the recommendations of the Justice Committee to place it in a free-standing piece of legislation.
We should first examine the recent past. Scottish Labour introduced an innovative form of judicial disposal in 2007. The introduction, in the Custodial Sentences and Weapons (Scotland) Act 2007, of sentences that would comprise a custodial part plus a community part was welcomed by many in the criminal justice community as a sound and well-thought-through measure. The Scottish Government chose not to put those proposals into practice, however. In fact, it chose to heavily amend the disposals in the Criminal Justice and Licensing (Scotland) Act 2010. The new proposals have never been implemented by the Scottish Government, but we are now where we are with the bill under consideration.
The bill fails to address what we might regard as the other end of the conversation: sentencing. Scottish Labour agrees entirely with victim support groups that there needs to be clarity in sentencing. Victims, the community and offenders need to understand what the sentence that has been passed by the judge or sheriff means in practice. It is not good enough for victims of crime and their families to hear that someone is sentenced to X number of years in prison but to have no idea what that means in reality. Victims and their families should be at the centre of the criminal justice system, but the current system of sentencing fails to put them there.
The bill may increase the confusion about sentencing, however. Victim Support Scotland noted in its submission that
“ending automatic early release for only some categories of prisoners would work to further complicate an already confusing system; the proposals would in fact create another rule that needs to be taken into account when calculating the release date of an offender.”
The introduction of the Scottish sentencing council was an important development in this regard. After a recommendation by the Scottish sentencing committee, which used to advise the Scottish Government on its approach to punishment and sentencing, the 2010 act provided for the Scottish sentencing council to be set up. Its stated aim is to foster greater consistency and transparency in the decisions of the courts by the creation of an appropriate framework to promote fairness and justice in sentencing. Its statutory objectives are to
“promote consistency in sentencing practice ... assist the development of policy in relation to sentencing ... and promote greater awareness and understanding of sentencing policy and practice.”
Those are all laudable and sensible objectives.
I welcome the position indicated by Lord Carloway, the chair of the council, that it will seek to take an evidence-based approach to sentencing. I am also pleased that it will reserve a position for victims’ representatives. It is important that the Scottish people have confidence in the court system and the punishments that it apportions to offenders. It is also important that we commit ourselves to doing what works. The sentencing council will provide an opportunity for a wider range of voices to be heard in the sentencing process and will make clearer to the general public the principles and policies that motivate our judges, sheriffs, stipendiary magistrates and justices of the peace when deciding on disposals.
Those are all important tasks. It is surprising and worrying, therefore, that the Scottish Government has dragged its feet for almost five years on setting up the sentencing council. The clarity and certainty on sentencing that the council will provide is desirable and necessary now.
The provision in section 2 that allows prisoners who are due to be released on Fridays to be released two days earlier in order to increase the provision of support for them is a good one. It may appear to some as a small change but, according to the Scottish Prison Service, around 4,000 prisoners are released every year on Fridays. They emerge at the weekends with limited support. We do too little to help offenders back into the community once they have served their time and that modest proposal will at least make some provision to increase the support and guidance that they receive.
At the heart of any structure surrounding the release of prisoners must be the calculation of risk to public safety. It is notoriously difficult to calculate, and it would be wholly unreasonable for us to expect the relevant authorities to calculate successfully the risk of reoffending every time they are called on to do so, but we must ensure that each offender’s risk profile is central to the debate on whether they are released early. For those who commit serious offences, it should not be an automatic process.
I agree with Victim Support Scotland and Police Scotland, which have indicated that they support the essence of the proposals because they will encourage relevant prisoners to engage with prison rehabilitation programmes and will ensure that prisoners who are assessed as still posing a high risk do not benefit from early release.
I also agree with the Howard League and other experts who have noted that an unintended consequence of the bill would be that prisoners are released cold into the community without a period of supervision from relevant authorities. As the Howard League put it in its submission,
“The current proposal fails to recognise the strong evidence that support and supervision in the community is more effective in reducing re-offending rates than time spent in custody. ... An abrupt and unsupported transition of a prisoner from the structured environment of prison to non-parole release may, in many instances, result in a reversion to pre-sentence behaviour.”
To mitigate the problem, some have suggested the extension of the MAPPA approach to violent offenders. That is an interesting proposal, but it is not good enough that we have no concrete plan on the issue. We are talking about some of the most serious offenders in Scotland’s prisons. We need more specificity when discussing their rehabilitation.
There is more that is vague than just the content of the supervision. How long will there need to be supervision, and will it be pre-release or post-release? Moreover, why has the Scottish Government produced a human rights impact statement accompanying the bill that the Scottish Human Rights Commission has described as “simply not adequate”? That, coupled with the aforementioned vagueness, means that offenders who have been refused release could make a human rights challenge if they have not been offered the necessary rehabilitation programmes.
I hope that the Scottish Government ensures that those comments are addressed as the bill is taken forward.
15:28
First, I would like to thank all the Justice Committee members and the organisations and individuals who came to give evidence. It was a long session and our chair did great work. It was very interesting to see how much the committee influenced what happened right after and how it influenced the decision of the cabinet secretary. In fact, it was the organisations and individuals who gave evidence—more so than the members perhaps—who changed the report and made it what it is.
The committee supported the general principles of the bill at stage 1. As the cabinet secretary said in his letter to the Justice Committee convener on 3 February, the
“bill provides a step towards achieving”
the aim of
“ending the current system of automatic early release of prisoners, brought in by the then UK Government in 1993.”
John Major’s Conservative Government brought in automatic early release to tackle concerns about prison overcrowding; it was under a Tory Government that criminals were let out of prison after serving only half of their sentence, no questions asked. It was an admission of many failures if ever there was one—of sending too many people to prison, of failing to accommodate them and then of failing to release them under supervision. That is the situation that the SNP Government wants to address, particularly the so-called cold release that the Conservative Government introduced in 1993. With this bill, the SNP Government is taking the first step to end automatic early release.
The bill is all about the right of prisoners to be supported when coming out of prison and the right of families of victims to know that offenders should be assessed before they are released. In other words, it is about public safety. That issue is not only at the core of section 1; section 2 will give the Scottish Prison Service the power to release prisoners up to two days early to facilitate community reintegration. How important is that? We heard in evidence that it is, in fact, very important. A couple of days can make a lot of difference. If a prisoner is released over a weekend, they will not be able to access services and might not have anywhere to stay. We must make release as easy as possible for various prisoners; in fact, we are talking about a huge number of prisoners, given that the provisions apply to all prisoners serving more than 15 days. This measure, which will certainly make a lot of difference, is only common sense, and I have to wonder why it was not introduced before.
Section 2 deals with the last few days before release, and section 1 deals with the last few weeks and months in the same spirit. It is all about supporting prisoners when released, recognising the right of families of victims and improving public safety. In his February letter, the cabinet secretary confirmed to our committee that the Scottish Government intended to lodge amendments at stage 2 to extend the provisions of section 1 and end automatic release for all long-term prisoners, regardless of category.
Let me make it clear: the quality of the evidence that we received has helped the cabinet secretary to be able to amend the bill at stage 2. I note that Elaine Murray has commended the cabinet secretary for his approach, and I think that his pragmatism is to be applauded. He recognised that this first step towards ending automatic early release of prisoners was too small, and he is acting on it by extending the remit of the bill to cover all long-term prisoners.
As paragraph 45 of the committee’s report points out, witnesses told us that prisoners might still be released into the community without mandatory supervision—what has been called “cold release”—and paragraph 46 quotes Professor Tata from the University of Strathclyde as saying:
“We need to explain to members of the public that eventually prisoners have to come out and that if someone is released cold they are more likely to reoffend.”
It is an important point, and I must thank Professor Tata for his contribution. His was one of the strong voices highlighting to committee members the danger that the bill would not eradicate all the problems of cold release. When describing the changes that could come about, he also said:
“Effective reintegration is a prerequisite for public safety.”
I certainly more than agree with that observation. Furthermore, with regard to the powers of the Parole Board and how much of a difference it can make, Peter Johnston of the Risk Management Authority said:
“The Parole Board ... has huge expertise in looking at the risk that the released offender”—[Official Report, Justice Committee, 20 January 2015; c 3, 7, 6.]
presents.
I am delighted that stage 2 amendments will address all these important concerns, because the fact is that we have been here before. In welcoming the committee’s report, the Law Society of Scotland pointed out the shortcomings of previous legislation such as the Custodial Sentences and Weapons (Scotland) Act 2007. The Law Society is right: seven years after that act was passed, the parts of it that relate to sentencing have still not come into force. The reason is simple: the expectations of the act were too high. Indeed, they were so high that it soon became apparent that it would not be possible to implement the provisions.
As Jayne Baxter has said, we are where we are. We have to move on. We have learned the lessons of the past, and the pragmatism demonstrated in the bill has to be commended.
I am sorry to interrupt the member, but my reading of what the Law Society said to members was not that the 2007 act was inadequate but that, if the bill was to go through unamended and the 2007 act was to be enacted, there would be a contradiction. That is not the same as what the member has just said.
What I said was my interpretation of what the Law Society said. As I was saying, it all comes down to implementation. If the Government has a problem with implementing the 2007 act, it is not fit for purpose. However, as Jayne Baxter said, we are not there yet and we have to move on. We learn from the past.
The Prisoners (Control of Release) (Scotland) Bill deals with the back end of our judicial system—the last few days, weeks and months before a prisoner is released. That is where we should start; it is the first step towards working on ending automatic early release for all prisoners. Alternatively, we might decide that the second step should be to deal with the front end of the judicial system, which is sentencing. I know that we have heard different views on that this afternoon but, let me be clear, the bill is not about that. We should use future bills to make sentencing more transparent and improve it.
I was surprised when Margaret Mitchell decided to dissent from the general principles of the bill, although I welcome the fact that the Scottish Conservatives will abstain today.
Our stage 1 report reflects the point that prisoners should be supported when they come out of prison, and that families of victims have the right to know that offenders should be assessed before they are released. That is what Victim Support Scotland said that it wanted. The bill is about public safety and I am looking forward to stage 2.
15:36
I apologise to members in advance, as I have a sore throat.
If automatic early release for long-term prisoners is to be abolished, the alternative must pass three key tests. The first is that the risk that is posed by an individual must determine the proportion of the sentence that they serve in prison. Secondly, it must prioritise public safety. Thirdly, it must guarantee supervision and support on release.
As it lies before us today, the bill fails the last two tests and it is fundamentally flawed. Once again, the justice secretary has had to pick up the pieces and promise to overhaul his predecessor’s ill-considered plans. As witnesses commented to the committee, making significant Government amendments at stage 2 is hardly best practice. In this instance, however, I agree with the proposals that the cabinet secretary outlined to the committee and they allow us to support the bill at stage 1 today.
Ending automatic early release for all those who are serving sentences in excess of four years is more coherent with the evidence on risk and reoffending rates. Widening the scope of the bill so that all long-term prisoners are subject to a period of compulsory supervision in the community is equally important.
There was genuine concern that the bill would fail those whom the Parole Board deemed should serve their full sentences. The Scottish Parliament information centre—the Parliament’s independent information service—concluded that
“the period of supervision in the community under licence conditions could be reduced (potentially to zero)”.
Victims organisations, the Scottish Human Rights Commission and more warned of risks to the public and increased reoffending, which would defeat the objective of the policy. Some of the analysis was scathing. Dr Monica Barry feared that the “most potentially high-risk people” would be leaving prison with no support. Howard League Scotland said that it would lead to prisoners being “spat out of prison”. It was even suggested that some prisoners would seek to max out their sentences so as to avoid restrictions on release. If they are used as fragmented workarounds, MAPPA and extended sentencing arrangements would not sufficiently ensure that someone cannot walk free completely unsupervised. That is why a minimum guarantee needs to be in the bill and I welcome the cabinet secretary’s assurance that it will be.
Some people will legitimately ask whether the introduction of post-sentence-end controls, or a mandatory control period, is automatic early release in all but name. It will be factored into sentencing decisions. Perhaps the cabinet secretary will address that concern in his closing speech. I am minded to agree that so-called end controls should last a minimum of six months, but I am also open to the possibility of their lasting nine months.
I can also confirm that Scottish Liberal Democrats whole-heartedly support section 2 of the bill. It is entirely sensible for prisoners to be released just a day or two early if it means that they get the support that they desperately need to successfully return to the community. Public and third sector services such as housing, social work and employment are simply not available 24/7.
In 2011-12, 40 per cent of prisoners—some 4,000 people—were released on a Friday or just before a long public holiday weekend. The measure in the bill is a small change that could make a big difference during the transition. It is a small change that could dramatically reduce the likelihood of thousands of people reoffending and causing any further harm.
In the short time that I have remaining, I would like to highlight some other outstanding issues. The revised proposals will, of course, have resource implications for the Prison Service. Each year, 450 more people will receive sentences under whose terms they are not eligible for early release. Before the categories were extended, the number affected was expected to be about 140.
In addition to the general costs of accommodating more prisoners, there will be increased demand for purposeful activity and programmes that address the underlying causes of offending behaviour. However, I note that the cabinet secretary has not explicitly committed to bringing forward supplementary policy and financial memorandums as the committee requested. I urge him to do so. We need to carefully consider the additional costs and demands.
There is public appetite for greater clarity and transparency in the meaning of sentencing. I would not blame the public for thinking that we were talking in riddles when discussing the various release options: automatic and unsupervised, automatic and supervised, discretionary and supervised.
Victims and witnesses are often bemused or even angered by stories of serious offenders being automatically released part way through the sentence that was handed to them by the sheriff or the High Court, regardless of any assessment of whether they continue to pose a threat. That feeling is understandably intensified in high-profile cases or if the individual proceeds to reoffend.
The bill could help begin to enhance understanding and public confidence. However, it could have been informed by the Scottish sentencing council’s work. Improving policy, practice and understanding of sentencing is squarely within its remit but, five years after the Parliament legislated for it, it is still not up and running. The body could have played a role in considering how best to manage early release.
Indeed, there is a risk that the bill is being progressed in isolation. Other long-overdue reforms and apparently shared aspirations have stalled: the commencement of the early release provisions already backed by this Parliament through the Custodial Sentences and Weapons (Scotland) Act 2007; reducing the bloated prison population; ending senseless short-term sentences; and shifting the focus of sentencing from punishment to rehabilitation.
This short bill is therefore another example of a piecemeal approach to penal reform. Scottish Liberal Democrats are clear. Although the bill is set to be improved, and we will support it on that basis, justice policy should always be complementary and guided by the evidence of what works, not the quick pursuit of cheap headlines.
15:43
I am pleased to take part in the debate as a member of the Justice Committee.
The ending of automatic early release for prisoners is seen by a large cross-section of the public as a very important issue to which they can relate with regard to their own safety in the community in which they live.
I acknowledge that, following evidence to the Justice Committee, Michael Matheson MSP, the Cabinet Secretary for Justice, said that he would extend the provisions in the bill to cover all long-term prisoners, which is to his and the Scottish Government’s credit. He has shown leadership by listening to reasoned argument and responding accordingly. In my book, it is a good thing when Governments and ministers listen and perhaps come to a conclusion that is different from their former conclusion.
During my speech, I will aim to focus on the prisoners who commit serious sex offences and how the bill will impact on them and offer some comfort to their victims. As a former board member of Rape Crisis Central Scotland, I am sadly familiar with that aspect of crime through my work on behalf of the victims of sexual assault.
Many people in Scotland have never understood why serious sex offenders were automatically released early, before they had served their full sentence. The victims of those offences are petrified at the thought of the early release of the person who attacked them in what they understandably believe is the ultimate crime. They live in fear of one day being confronted by their attacker.
On what many of the public think about early release, a large number of those who have been victims disagree with the present system. Nonetheless, I fully support the Parole Board making the final decision on whether serious sex offenders should be released before completing their sentence. The Parole Board has the benefit of knowing how rehabilitation programmes have worked on the individual.
I particularly support the work carried out in Peterhead prison, which has introduced programmes designed to change the behaviour of serious sex offenders. The work carried out in that institution has had a tremendous record of success, and I wonder whether people tend not to reoffend as a result.
I acknowledge that prisoners volunteer for those programmes for a host of reasons. Some volunteer in order to influence the Parole Board. They want to show that they are putting some effort into changing their behaviour in the hope that they are rewarded by being granted early release. There are, however, many prisoners who volunteer because they sincerely believe that they need help, and that they need to change their behaviour, better themselves and ensure that they are never sent back to prison.
No matter the motivation, we can see the success of such a system in the fact that someone who is cold released or automatically released early is approximately seven times more likely to breach their licence conditions than someone who is released after a decision by the Parole Board.
To victims and to members of the public who are fearful of early release and the impact that it will have on them and their community, I offer this message. What is being proposed by the Scottish Government should give some comfort because the public and communities will know that tried, tested and effective rehabilitation courses will be available to offenders while they are serving their time in prison. Further, supervision in the community will also be in place, whether or not prisoners participate in rehabilitation within prison.
I would far rather that, after deliberating, considering detailed reports and assessing behaviour programmes, the Parole Board granted someone who may have, say, one year left of their sentence early release, knowing that they are unlikely to reoffend. I hope that that is some comfort to the public. That is where rehabilitation and the work of the Parole Board play such an important role. Roderick Campbell mentioned that.
Although I have focused primarily on those who have been imprisoned for serious sex offences, I would argue that the same balanced viewpoint will work across all crimes. The bill goes some way towards ensuring that the policy of ending automatic early release for all long-term prisoners will have at its heart public safety and the need for effective rehabilitation and supervision.
Section 2 is plain common sense and I welcome it. Knowing that the services were not available, it was wrong of us to send people out who really needed help not to reoffend. Section 2 will have a big effect on people when they are released and, in the long run, will help them and society to get a better understanding of how things work.
Although work is still to be done at stage 2 in committee, I feel that we are more than on the right track and I commend the bill to Parliament.
15:50
As we have heard, the bill before us—which proposes to end automatic early release for sex offenders serving four years or more and other offenders serving 10 years or more—is likely to be substantially amended by the Scottish Government at stage 2.
If the bill were to be passed in its current form, it would affect only 1 per cent of prisoners in Scotland. The Scottish Government’s proposed amendments would end automatic early release for all long-term prisoners serving four years or more, which equates to only 3 per cent of the 7,851 people who made up Scotland’s prison population, on average, in 2013-14.
As we have heard today, there are greater concerns about the sentencing policy and process in Scotland. Scottish Labour agrees with victim support groups that there needs to be clarity in sentencing; victims, the community and offenders need to understand what the sentence that is passed by the judge or sheriff means in practice. The bill does not go far enough in achieving that aim.
The amendments will also introduce a mandatory period of supervision after release. At this stage, however, the period of supervision is undefined in the bill. Furthermore, we do not yet know whether that period will be part of the issued sentence or whether it will be added on at the end of the custodial sentence. It would be helpful if the Scottish Government could clarify that point as a matter of urgency.
Section 2 of the bill, which—like others in the chamber—I welcome, would ensure that offenders who were due to be released on a Friday could be released up to two days early to ensure that proper care and support were in place before the weekend. That should improve the transition from prison back into the community. Currently, if someone is due to be released on a Friday, the proper care and support are not in place in relation to social services and housing, which can—and does—lead to issues.
Given those substantial amendments, both the financial memorandum and the policy memorandum will need to be rewritten. The SPICe briefing on the bill originally estimated that
“the eventual long-term impact would be to increase the average daily prison population by approximately 140.”
I would expect that figure to increase. The number of those affected, using 2012-13 figures, stood at 131 offenders, but the amendments would affect 473 offenders—again, based on 2012-13 figures.
An increase in demand for prisoner programmes is also expected, reflecting the fact that any early release for relevant prisoners would be based on an assessment of risk to the public. With that in mind, we must ensure that adequate rehabilitation services are in place. The Howard League for Penal Reform in Scotland states that
“it is necessary for the Scottish Prison Service to provide sufficient rehabilitation services to allow prisoners to reduce their risk of reoffending and harm. Where such services are not available, continued detention may become arbitrary and in breach of Article 5 of the European Convention on Human Rights”.
Offenders who have been refused release could have a human rights challenge if they have not been offered the necessary rehabilitation programmes, and members across the chamber certainly agree that we should avoid that.
Some of the changes will put additional strain on the prison system if proper resources are not made available. Indeed, during his evidence to the Justice Committee, Professor Alan Miller of the Scottish Human Rights Commission stated:
“You have heard from witnesses that the resources within and outwith prisons are not seen as being adequate. The legislation will increase the spotlight on whether resources are adequate.”—[Official Report, Justice Committee, 13 January 2015; c 13.]
The bill is due to go through substantial amendment, and it is difficult to discuss its full impact when we do not know the full projected costs and effects of the amendments. However, Scottish Labour will support the bill at stage 1. Despite the fact that it fails to address sentencing policy and reconviction, it is a start.
I hope that the Scottish Government will ensure that prisons and the Parole Board are properly resourced, that adequate rehabilitation services are in place and that those services can meet future demand.
15:55
I very much welcome the opportunity to speak on this important subject. We all know that control over the release of prisoners is a subject that has needed to be addressed for some time. In session 2, I had the privilege to serve as shadow deputy justice minister, with special responsibility for prisons. I ended up visiting a lot of prisons, including Saughton, Inverness and, of course, Peterhead, which is in my constituency. I was in there more often than I would have wished to be. I also visited a prison in Wales and a prison in France. When I was in Georgia, I met the Georgian Minister of Justice and talked to him about prison policies. It is clear that different jurisdictions take a wide range of approaches.
It is also clear that we need to be careful about some of the broad-brush assumptions that we may have been making. The first obvious thing to say is that each prisoner is an individual, and we need to be careful to consider each prisoner as an individual. It is therefore important that the Parole Board is particularly well resourced on the back of the reforms that we are considering. The figures that are provided in the financial memorandum accompanying the bill say that the number of cases that the Parole Board deals with will rise by 230 by 2029, which is a fair distance out. We need to have the resources in place for that.
We have been talking quite a lot about sex offenders. It is important to remind ourselves that there are two kinds of sex offender. There are those who are essentially violent criminals, who express their violence through sexual offences—rape or violence in a sexual relationship. The more insidious cases involve paedophiles and those who groom the people they are going to subject to sexual abuse. We say that reconviction among sex offenders is lower. That is factually correct. However, we must not confuse that—reconviction is lower, but reoffending may or may not be lower. It is substantially more difficult to detect many sexual offences.
Where sex offenders are concerned, we have to be particularly careful. We must ensure that the Parole Board and the other relevant bodies are well resourced to deal with that particular category of offender. The average IQ of a paedophile is a bit higher than that of somebody who is in prison for other offences. They are more cunning, they are more dangerous and they carry greater risk. We need to be careful to address that. I have confidence that we in the Parliament wish to do that, and I have confidence in the Prison Service.
In the end, our objectives in dealing with people who are serious offenders are threefold. First, there is the element of retribution—giving to the person who has offended a real sense of the opprobrium that comes from their having committed an offence against another member of society. The person who has been subject to the offence would certainly wish to see that, and that is right and proper.
Secondly, there is rehabilitation. We have talked quite a lot about rehabilitation, which is the moral thing for us to do, and it is also an economic thing for us to do. It is very expensive to put people in prison, as we know. Every time that we effectively turn someone’s life round and stop them coming back to prison, there is a huge economic benefit.
The third objective is restitution, which I have not heard mentioned in the debate, although it has been mentioned in justice debates in the past. The use of restitution is relatively limited. However, after my mother-in-law had her purse stolen, the court ordered the two individuals who were responsible to repay her the money. That is a proper part of sentencing policy. We have to be very flexible, and we must allow our judges to look at the circumstances and apply flexibility.
Not all prisoners get it. One of the visits that I made as shadow deputy justice minister was to Saughton prison. I found myself in a cell with six lifers, who were in for murder. The prison chaplain stood at the open door so that he could summon the staff if things got too heated. One of the offenders had been released on licence and had been recalled—in his view, entirely unjustifiably so. He said that he had been recalled just because he happened to be with a group of people when another murder took place—he had nothing to do with the murder; he just happened to be there. When we deal with prisoners whose attitude is thus, we realise that it is in the nature of things that it is impossible to get it right all the time. I did not feel uncomfortable about that recall, and I do not think that many other people would.
The bill could restore public confidence in how sentencing works, which is an important point. It takes the first steps, but we will have to go down the whole road in due course. We have to make sure that we have the resources when people come out and that the new arrangements for access to health, housing and other services are in place for prisoners.
I was very impressed by Saughton prison when I visited a few years ago. Peterhead, with a very different category of prisoners, did its own thing. HMP Grampian has a very good approach to working with prisoners. We now have young offenders, women prisoners and a more general prison population all on one prison campus for the first time; it is expensive to do, but it is expensive not to do it properly.
I look forward to working with HMP Grampian. It will be more challenging for the community to have to interact with prisoners as they adjust to going back out than it used to be when we had all Scotland’s serious sex offenders locked behind the walls, entirely disconnected and discharged back to communities elsewhere. That is a price worth paying and I am sure that the staff in the Prison Service will do well with that facility. What happens in HMP Grampian will inform what should happen elsewhere. It will lead to improvements in our programmes and in outcomes.
This is a good, useful one-page bill, which takes us forward on the road that we need to be travelling. I congratulate the cabinet secretary and the Government on the progress that they have made, but I, along with others, will continue to challenge the Government to do substantially more when it is able to do so.
16:02
I am not, and never have been, a member of the Justice Committee, but looking back over the eight years that I have spent in the Parliament and the debates on justice that I have taken part in, I notice that usually I have a personal or professional interest in the work that the Justice Committee is doing. It is important work, which we expect to be done, because we want to live in a safer society.
My background in social work took me to many households, local area teams, support groups and support centres, where I saw some amazing work going on. When we see people who have been, in a sense, victims of the justice system, in as much as how they ended up there, and how they are rehabilitated out the other end, we cannot fail to realise the fantastic work that is being done by professionals in that field. They need every tool in the toolbox to help them to do that work.
I have said it before, but I will say it again: the safety of the public is our absolute priority. However, rehabilitation and support for people who have been through the justice system are just as important in building the safe society that we all want.
The question is, how best do we achieve that result? I know that it is not going to be done in one great leap, but these debates—the number that I have taken part in is probably a drop in the ocean compared with the number for some others in the chamber—are a way to highlight some of that, and I believe that this particular bill takes us a small but important step forward.
One of my interests as co-convener of the cross-party group on men’s violence against women and children is obviously what happens to people who are victims of domestic violence or sexual abuse. We might see a convicted criminal sentenced for 10 years, and his victim might heave a sigh of relief, but she—and in most cases it is a she—will be well aware that the likelihood of that perpetrator being released early and of her not knowing about it is very high indeed.
I supported the Clare’s law pilot, and I am happy that the Scottish Government has taken that forward. It allows someone who has suspicions about their partner to get the information that they need. That is an important way of providing people with relevant information where appropriate.
There are questions about transparency, and I see that transparency and clarity are a key theme in the stage 1 report. People’s rights, and some prisoners’ rights, have to be clear and transparent too. They are two sides of the same coin, in my opinion. Knowing what the real, rather than theoretical, outcome is going to be is just as important to prisoners as it is to victims, and transparency is a hallmark of this Government. We live and operate in a real world, rather than behind the gated entrance of Downing Street.
The bill is a move towards greater transparency. Rather than vague assumptions about early release, it will introduce proper controls that will improve the system by allowing decisions about when and how people are released to be the most important element. Those decisions will be taken and informed by individual consideration of a prisoner, taking into account public safety and the need for effective supervision. In that way, it addresses both sides of the coin: it ensures that dangerous prisoners do not get released automatically, while bringing in a mandatory period of control through supervision for all long-term prisoners leaving custody. Long-term support and control are something that I absolutely agree with.
I suppose that doing that successfully will always be something of a balancing act. I spent some time working with criminal justice social workers, so I know that it is sometimes difficult to make that judgment call. That is why they need the best tools to hand.
We are thinking about not petty criminals—people on three or four-month sentences—but people who are serving much longer jail terms and who should remain in jail for the sentence that they have been given. No prisoner serving time for serious offences would be automatically released on licence after two thirds of their sentence, for instance. We already know that a prisoner on automatic release is seven times more likely to breach their licence conditions than someone released after a decision by the Parole Board. The reason is obvious: when individual consideration is applied, people are likely to respond more positively.
When the Government decided to close down Cornton Vale women’s prison, that was one of the realities that the cabinet secretary recognised. Prison of itself is not curative. What works is small units such as the 218 centre, where women prisoners are managed in a far more constructive way. Although by far the majority of women in prison are there for minor offences, women can and do commit violent crime, and society should be protected from them.
Dame Elish Angiolini’s report pointed out that women commit different types of crimes for distinctly different reasons. Drug abuse, a dysfunctional or deprived family background, being victims of violence themselves, or confused desperation can all colour their motives. She pointed out:
“While the proportions of the male and female populations in prison for violent offences are similar (about 35 per cent as at 30 June 2010), proportionally more women are in prison for ‘other’ crimes”.
The current system is—much like Westminster, in my view—not working for Scotland, but we have the foresight and intelligence here to find ways to manage criminals better. The elements that I have highlighted indicate how right Dame Elish Angiolini’s recommendations are.
I am talking about the women’s prison because I believe that the recommendations from that report could apply across the board. One-stop shops such as the 218 centre and the Willow project can be used to deal with all prisoners. There is scope to develop that idea across the entire prison regime, and I hope that the cabinet secretary will think about that.
Support services such as those that have been described, and the greater clarity on release arrangements for which the stage 1 report calls, can only help to ensure that we reduce reoffending and give the professionals the teams and tools to do the job properly. Victim Support Scotland has called for more clarity, and I am sure that the cabinet secretary will step up in that regard.
It is clear that the Government and members want to move forward with innovative responses in order to find a more effective and meaningful direction than the current system can offer. That can only be good for us all.
16:11
As an MSP who is not a member of the Justice Committee and is therefore not as familiar with the systems and processes that are involved in our application of criminal justice, it has always seemed to me that the sentencing of those who are convicted of crimes is an area in which greater clarity and more work to explain the system are needed.
Nowhere has that been more the case over the years than in the debates that have taken place on ending automatic early release. I had hoped that the reforms that we had been promised by the Scottish Government would help to provide clarity to do that, but my reading of the bill and the report by the Justice Committee suggest that that is not the case. In my view, the proposals in the bill do not go far enough in providing protection for our communities.
I am speaking about the bill as it is currently drafted, but we are in a rather strange position today, given that we are debating at stage 1 a bill that will be fundamentally different by the time it emerges from stage 2 consideration. Having said that, I applaud the cabinet secretary’s willingness to lodge the amendments that he has outlined today because I think that they will help to make the situation better and clearer. I am sorry that he has found himself in a position in which that has been necessary; I am sure that the problem is not of his making, but he certainly seems to be stepping up to the plate and trying to resolve it.
It seems that we are looking at only one part of the system in the bill, certainly as it is currently drafted: the end point when a prisoner is released. However, we also need to consider the point at which a prisoner is sentenced to ensure that our sentencing policy itself is correct and transparent.
The fact that the sentencing council, which was legislated for in 2010, will not begin its work until the last quarter of this year seems to me to be wrong. It would surely have been better to allow the policy proposals that are contained in the bill to be part of a comprehensive package of measures that could have been influenced by the sentencing council. I am not suggesting that there should necessarily be a delay in putting forward the provisions, but I believe that they would have benefited from consideration by a sentencing council had it been introduced prior to this point.
The Law Society of Scotland, in its briefing to members, makes the valid point that the most significant—indeed, as Margaret Mitchell highlighted, I believe that the society used the word “radical”—change to custodial sentencing policy in more than 20 years will be introduced by way of a stage 2 amendment to a bill that is already before Parliament.
The Law Society contrasts that with the situation in 1993, when significant changes were last made. At that time, as we know, the changes were made only after the careful consideration of two reports on the matter, one of which had benefited from 14 months of consideration and much discussion within the legal profession and elsewhere.
Does the member accept that the Justice Committee will have the opportunity to take evidence on what might be substantial amendments at stage 2 if it wishes to do so and that the Law Society of Scotland among others will have the opportunity to challenge those amendments?
I absolutely accept that, but it is still quite a strange way to legislate. The committee and Parliament should really have had those materials at stage 1 if the committee was to do the job that we all expect it to do. I have no hesitation in saying that I know that the Justice Committee, under the convenership of Christine Grahame, will do a fantastic job, but it should not have to do it in that way.
Victims and communities need to know that, if a sentence of four years is handed down, the prisoner will be in prison and communities will be protected from that individual for that length of time. I do not disagree at all with the Scottish Government on that point, but victims and communities also need to know that when that person has been released from prison, everything possible has been done and will continue to be done to prevent them from reoffending.
The bill must put in place systems to help to manage the transition that every prisoner has to make back into their community at the end of a sentence that they will have served in full. The offender has to leave prison equipped with enough skill and self-awareness to be able, with support, to find a productive role in society once again. I acknowledge entirely that that is the difficult part. Rehabilitation is not easy, but it must not be seen as an add-on; it must be seen as an essential part of a successful justice system. If rehabilitation is to work, it must surely continue as tailored support when a prisoner is released.
I congratulate the Justice Committee on its work on the bill and its carefully considered report. It was right to ask for clarification of the Scottish Government’s intentions. It is also right to want to know what the minimum period of supervision upon release will be and that any guaranteed minimum period will be sufficient to allow effective post-release work with the offender to take place. That must be accompanied by continuous risk assessment.
In his opening comments, the cabinet secretary quite understandably asked for views on the length of the mandatory period. It is clear that he is still considering that, and that is to be welcomed. My view is that the period must surely depend on the nature of the crime and that it must be proportionate to the sentence. I am not sure that we can say that six months or nine months is right. I think—perhaps the Justice Committee’s evidence will prove me wrong; I am happy to be proved wrong on this one—that it should be tailored to the individual, the pattern of their offending and the sentence that they have served. However, time will tell what the outcome of those deliberations is.
As we have heard, continuous monitoring will, of course, bring additional pressure to bear on the parole service and other community-based services. The question of how they are to be resourced must be properly addressed. The committee is right to press for a supplementary financial memorandum and an updated policy memorandum.
The prospect of allowing release to take place up to two days earlier to avoid a clash with the weekend makes absolutely perfect sense to me. Like many members, I am sure, I have had phone calls not just on Fridays but earlier in the week—I have had letters in advance, too—from people who were being or had been released from prison and were looking for support because they were worried about what would happen to them when they were released and about the effect on their behaviour. I very much welcome that aspect of the bill.
16:19
The decisions that we make as the bill goes through Parliament will affect our prison communities. A prison community is much more than the prisoners; the staff, wardens and support and counselling services all form part of that community, and any changes that we make with the bill must ensure that no damage is done to community cohesion in our prisons. The long-term safety of the public and public service workers must be paramount.
I am not a member of the Justice Committee, but I have listened to the debate with interest. I do not have a professional background in this area, although I served as a substitute member on Lanarkshire community justice authority and, as such, am familiar with MAPPA. I am convinced that the safety of the public is the Government’s absolute priority. Although progress has been made in recent years, the reform that the bill will bring about will ensure that, in the future, no long-term prisoner will be eligible for automatic early release after serving just two thirds of their sentence.
I believe that the bill will improve the system of early release by allowing the decisions that are taken about when and how people are released from prison to be informed by individual consideration of the prisoner, of public safety and the need for effective supervision of that prisoner. As well as ensuring that dangerous prisoners will not be released automatically, the bill provides for a mandatory period of control that will mean that all long-term prisoners who leave custody will be supervised.
As I said, the bill will improve the system of early release by allowing decisions about when and how people are released from prison to be taken in an informed manner. It has already been mentioned that section 2 should ensure that no one comes out of prison on what has been termed “cold release”.
We cannot consider the bill in isolation from previous bills and previous reports on what has been happening. I believe that, as was stated in 2008 in the report of Henry McLeish’s independent Scottish Prisons Commission, fundamental changes to the operation of the current system of early release can be taken only once prison numbers are established at a longer-term lower-trend level, so that capacity is available in the prison estate to deal with the short to medium-term impact of the changes.
We need to remember the context of the bill, which is that recorded crime has fallen for the seventh year in a row and is now at a 40-year low. The Government continues to maintain its commitment to providing 1,000 extra police officers to tackle crime in our communities.
Many members have mentioned the need to ensure that rehabilitation programmes are available and properly funded. The eventual impact on prisoner courses of the policy of ending automatic early release will be felt some years in the future, but I am sure that the cabinet secretary will work with the SPS to ensure that prisoners will have appropriate access to the support that they need in order to be rehabilitated.
My colleague Stewart Stevenson talked about sex offenders. This week, there was a programme on Radio 4 that was both informative and, at times, challenging to listen to. It was a documentary called “Inside the Sex Offenders’ Prison” that was made by the documentary film maker Rex Bloomstein. He had unprecedented access to HMP Whatton in Nottinghamshire, which is the largest sex offender prison in Europe. He sought to investigate how its inmates are rehabilitated for release. In the programme, it was noted that in Whatton no distinction is made between prisoners according to the type of sex offence that they have committed. There is an absolute focus on recognising that all the crimes have victims and on getting prisoners to take responsibility for their actions.
Lynn Saunders, who is the prison’s governor, said:
“Whatton’s a great leveller ... We’ve got everybody here you could imagine”.
She mentioned that
“vicars, teachers, airline pilots, police officers, prison officers, doctors ... people with learning disabilities, who have low IQ and complex mental health problems”
are all represented in the prison community.
Approximately half the prisoners are on determinate sentences and know their release date; the rest do not. Whatton has become known as a specialist treatment centre for rehabilitation. It offers a wide range of sex offender treatment programmes—indeed, it offers more such programmes than any other prison in the United Kingdom. The overwhelming majority of the prison’s inmates have accepted their crimes and are working to address them.
The offences that the prisoners at Whatton have been convicted of vary considerably. Dave Potter, who is one of Whatton’s most experienced facilitators, said:
“What we do at Whatton is to try and get them to understand the harm done to others, the harm done to themselves, and ways of identifying that warning sign when they get out, that they are on the path to offending again.”
As I said, it was a challenging documentary at times and not an easy listen. It addressed issues such as how the prisoners’ negative emotions of shame and guilt are a huge barrier to the treatment process and how staff must work through them to build prisoners’ self-esteem.
The documentary maker frequently addressed the paradox that Elaine Murray mentioned, which concerns the societal pressures and the pressures on us as politicians regarding how we view offenders and how they should be dealt with. We want sex offenders to be profoundly remorseful about their crimes, but rehabilitation demands that they go far beyond that in order for reoffending to be addressed and prevented.
Many members have talked about the low rate of reoffending by sex offenders. Governor Saunders of HMP Whatton noted that the rate among them is only 6 per cent compared to more than 50 per cent for the general prison population.
HMP Whatton seems to have had great success. I highlight that because rehabilitation programmes and their resourcing are a big challenge to the Government. I look forward to the cabinet secretary’s discussion of how he might approach the matter. It is vital that rehabilitation be at the core of what we do in prisons so that society as a whole can be satisfied that the bill represents progress.
I commend the bold approach that the cabinet secretary has taken. He has listened to the evidence and reacted to the stage 1 deliberations. His decision not to build a women’s prison at Greenock is testament to his absolute commitment to prison reform.
16:26
I, too, thank the many people who gave the evidence that formed the basis of the Justice Committee’s report. I will quote straight away from one of them, Professor Fergus McNeill of the University of Glasgow, who said:
“To put it crudely, simply ‘storing the risky’ for a little bit longer doesn’t in fact serve to reduce it—the key issue for public safety is the condition in and conditions under which people are detained and then released, not how long they serve. How long they serve is principally a matter of ‘just deserts’ or proportionality of punishment to the offence.”
Professor McNeill also encouraged us to raise the level of debate. For that reason, I welcome the change to the initial restriction of the bill to sex offenders and prisoners serving more than 10 years. That restriction might have been popular, but it was certainly not evidenced by the reoffending rates that we heard about.
Although some people still want to talk tough, I would sooner talk just and effective. The debate has been wide-ranging and has stretched beyond the stage 1 report. As other members have done, rather than be critical of the approach that the Scottish Government has taken, I say that it is commendable that the Government has listened and responded accordingly.
I will quote another contribution that the committee received:
“Recalibration of sentencing—so that when a sentence is announced or laid down in court it relates to a real time, rather than its being something that has been chopped and changed around—would be very helpful indeed for everybody involved, from the perpetrator who has been convicted, to the victim. A huge amount of clarity is required, but we have the potential to join things together and to come up with something coherent, which we do not have at the moment.”—[Official Report, Justice Committee, 24 February 2015; c 37.]
That was said not by a Conservative politician but by Pete White of Positive Prison? Positive Futures. It is important that we have clarity. The policy memorandum talks about reducing offending and improving public safety. Surely everyone can go along with that. It also talks about the minimum period of compulsory supervision in the community.
We must understand again what the purpose of prison is. It is not only to punish, but to improve public safety—on more than one occasion, we heard the cabinet secretary talk about dangerous prisoners. However, crucially, the purpose of prison is also long-term re-integration—or, I suggest, integration because many of the people who find themselves to be the subject of custodial sentences have never really been integrated into society in the first place.
It will be years before the effects of the bill kick in and there is an opportunity to see reintegration. That will be the gauge of the proposals’ effectiveness and will determine how they are judged, but it will be some time in the future.
We must look outwith the prison walls, too. I commend the outward-looking approach of Colin McConnell, the SPS chief executive, and his staff. They have welcomed the proposed guaranteed minimum release period. As has been said on more than one occasion, it is important that we continually assess the risks and put in place measures to address those risks, which includes the two-day early release. The Scottish Prison Service also has outreach workers who can facilitate the integration that we all want to see happening.
Integration will partly be about the effectiveness of management programmes in the prisons. There are challenges around that. We have heard from the Scottish Prison Service that the programmes are resource intensive and require specialist delivery skills. We have also heard that the SPS delivers them at the most appropriate time in a prisoner’s sentence, taking into account their willingness and readiness to engage and, crucially, the availability of programmes, which has been a concern for us all.
It is important to say that prisoners are not a uniform group. Therefore, individual assessment must be made of individuals’ needs.
The purposeful activity review that was undertaken by the Scottish Prison Service has been mentioned. The Scottish Government’s response talked about developing learning and employability skills in order to build life skills and resilience and to motivate personal engagement with the prison and community-based services. That was welcomed by Positive Prison? Positive Futures.
The Parole Board for Scotland’s role has been mentioned. I absolutely agree with the cabinet secretary: I trust its judgment. We know that it welcomes the proposed post-release period.
The cabinet secretary sought views on the minimum period. The figure of six months has been mentioned. My suggestion is that the issue is not about the quantity or the length of the period; rather, it is about its quality. It will also be important to have in place robust mechanisms to support people when they have been released.
The Scottish Human Rights Commission has been mentioned. I hope that the Government will respond positively to its comments.
Early release has been frequently talked about. That is beyond the gift of this chamber. Housing is a challenge, but so, too, are benefits. Therefore, having the Department for Work and Pensions on board for anything that is done would be helpful.
I want to see a move to end short sentences and I want robust community disposals. Social Work Scotland has talked about a review of sentencing guidelines. I also want to see the Scottish Government do more than simply note the suggestion of extending MAPPA. If we want to enhance public safety, that would, ideally, take in violent offenders and not just sexual offenders.
An issue that is frequently mentioned is co-ordination across the criminal justice system. It is key. The Scottish Government’s initial approach was challenging, but I welcome the reforms that are being suggested. However, rather than talk tough, let us talk just and effective.
16:32
The debate has revealed a conundrum. People either support or oppose automatic early release. Those who support it want it; those who oppose it do not want it at all.
My party alone has a distinguished record in this Parliament of consistently opposing automatic early release. As members have said, more than 20 years ago, a Conservative Government introduced automatic early release. It was also a Conservative Government that, recognising that automatic early release failed victims, judges and the public, passed legislation to abolish it. That legislation was never implemented by the incoming Labour Government of 18 years ago.
Since 1999, it has been this Parliament’s responsibility to deal with the issue. My party has been unequivocal in its criticism of automatic early release. Since 1999, I have spoken in various debates condemning it; my party has frequently lodged amendments to end automatic early release, only to be defeated by all the other parties.
Will the member give way?
Let me just expand my argument.
As a political principle, my party’s credentials could not be clearer on the issue. In 2007, it was heartening to find that we had acquired a political ally. In both its 2007 and 2011 Scottish election manifestos, the SNP committed to abolishing automatic early release of offenders.
In 2007, the SNP said:
“The SNP believes there should be an end to the automatic release of offenders. We support the recent legislation in this area and in government will drive forward this important area of reform.”
It echoed that in 2011, when it said:
“We will build on the work already done and involve the sentencing council in further action to address unconditional early automatic release.”
It seemed that our arguments had won over a new adherent to the principle of ending automatic early release. However, in politics principle is not enough; it needs to be married with policy to deliver what is pledged. It is disappointing that, eight years on, we have from an SNP Government a proposal not to abolish automatic early release but to introduce a partial and heavily qualified abolition.
According to SPICe, the bill as introduced would have applied in 2012-13 to 107 people convicted of sexual crimes and 24 people convicted of other crimes and offences. That total figure of 131 offenders would have represented less than 1 per cent of all people receiving a determinate custodial sentence. So, we have an abandonment of the principle and a divergence from those earlier manifesto commitments.
I make it clear that I do not disagree with the statement that introducing the abolition of automatic early release is not straightforward—it is not. As many members have said eloquently, there is a need to address prison capacity, whatever issues confront the prisoner—be they drug addiction, alcohol dependency, illiteracy or innumeracy—and to prepare the prisoner for release. However, those are issues of management that should neither intrude on nor detract from the kernel principle that we either have automatic early release or we do not.
Will the member take an intervention?
I ask the member to bear with me.
What we currently have from the Scottish Government is a proposal to scrap automatic early release for a tiny percentage of prisoners. It would not affect short-term prisoners and it would affect only some long-term prisoners. In my opinion, that is not good enough.
Sensitive to perceived shortcomings in the bill, the Scottish Government proposes to lodge significant amendments at stage 2. However, in my opinion, those proposals do not address the fundamental shortcomings of a partial end to automatic early release although they certainly raise issues of process for the Parliament. The new proposals would apply to approximately 450—just 3 per cent—of all people who received a custodial sentence in 2013-14. Furthermore, the Justice Committee is now being asked to form a view on those proposals as part of its stage 1 report without sight of a revised policy memorandum, a financial memorandum or explanatory notes on the bill. That is not conducive to scrutiny.
Is the member ready to take an intervention now?
I give way to Mr Stevenson.
Although I accept that the member is correct to point to the small percentage of prisoners who would be affected, I wonder whether she accepts that it is a very much larger proportion of the increased prisoner nights that will be derived, because it is the longest sentences that are being lengthened—therefore, it is appropriate to proceed in a way that ensures that we do not lose the principle through difficulties in implementation.
I expected an intervention, not a dissertation. What Mr Stevenson does not address is the fundamental intellectual conundrum. In my opinion, we either believe in ending automatic early release or we do not.
We do.
Then why not deliver it? It is not being delivered.
Numbers.
Can members stop shouting across the chamber, please, and allow Ms Goldie to continue?
Thank you for your protection, Presiding Officer.
That is a fundamental conundrum, and it is why the bill, even with the Government’s proposed flourishes, does not end automatic early release. Nobody can pretend that it can—Labour members have been honest about that. They have been quite frank in revealing their sense of a paradox, feeling that the bill does not go far enough but still wanting to support it.
In the opinion of my party, the bill as structured and proposed does not provide victims, their families or judges with the simplicity and clarity that they need and to which they are entitled when a sentence is imposed. For that reason, my party will abstain in the vote tonight.
16:39
I start by echoing some of the comments that have been made about the role of the cabinet secretary. I congratulate him on trying to do the best he can to make something sensible out of what is, frankly, an incoherent and unacceptable bill. I think that he is showing good will to the Parliament in trying to sort out a mess that he has inherited.
This is a bad way to make legislation. It actually undermines the credibility of this Parliament. When the Parliament was set up, we prided ourselves on how we would be different—how we would make good legislation, how we would listen and how we would then reflect the advice that we had heard in our strong and powerful committees. That has not happened and is not happening in this case. It is ridiculous, Presiding Officer. We are having a debate about a bill at stage 1 in the full knowledge that what will be considered at stage 2 will be completely different.
Does what the member says not precisely prove the point that there has been robust scrutiny?
The member fails to understand what I am saying. I am not criticising the committee. It is because we have one of the best committees in the Parliament looking at the bill that we will be able to make substantial changes. My criticism is of a Scottish Government bringing to the Parliament a bill that in many senses is not fit for purpose.
Scottish Labour will support the general principles of the bill at stage 1 tonight, but we do so with severe and significant reservations, because we are having to have a debate in the abstract. We support the principles, but we do not have a clue about what will come before us at stage 2.
Presiding Officer, I share your aspirations about the way in which the Parliament and its committees need to change. However, maybe one of the things that we should all collectively do is reflect on the process that this bill demonstrates. We are being asked to make significant decisions with an absence of detail and of clarity. It does not do anyone any good trying to make a decision on that basis. It does not help the public, and it does not help the victims.
We know what the principle is, and we can sign up to it. In a sense, it is a shame that, because of a lack of substance in the bill, some of the debate this afternoon has veered into a wider debate about sentencing, prison policy and rehabilitation. That is a debate that the Parliament needs to have at some point, and I hope that we will get that opportunity, but this is a specific bill about early release and not about wider prison policy. It is a specific bill about a very specific thing, yet we are not seeing any detail. The cabinet secretary is not able to tell us today what is in the detail.
We are voting today simply on the general principle of ending automatic early release for long-term sentences. As Hugh Henry is well aware, there is every opportunity at stage 2 for a substantive amendment to fall, as indeed there is at stage 3. That is not the best way forward, but the Justice Committee has followed procedure at stage 1 and will do its utmost at stage 2 to make good legislation.
I have every confidence in Christine Grahame and her committee, and I am thankful that it is the Justice Committee that will consider the bill, but that does not excuse the failure of the Scottish Government to bring something coherent to us today to consider. It is not good practice to say that we will press our buttons today to vote for a principle without knowing the detail of what we are voting on.
By all means, let us change, amend and improve bills, but we are taking evidence from people and then saying to them, “Actually, do you know something? What we are going to do once we get to the detail might be different from what we debated and discussed at stage 1.”
Will the member give way?
No.
Michael Matheson, Christine Grahame and others have commented on the Parole Board, but it was Stewart Stevenson who hit the nail on the head. We cannot make these changes unless we are prepared to invest resources in making the Parole Board work effectively. Jayne Baxter, Margaret McDougall and others talked about the need for clarity for victims. At the bottom of any argument on this issue must be the fundamental principle that, when it comes to sentencing, victims should be given the clarity that they deserve, and we should be ensuring that our judges have the wherewithal to do that properly.
However, as Elaine Murray has pointed out, we now have a policy document that is not fit for purpose and a financial memorandum that is based on something completely different. We will vote for that memorandum today, but the fact is that we do not know whether the one that will come later will be anything like the financial memorandum that we have just now, because the bill itself will be completely different.
This is not the way to make good legislation. That comment has nothing to do with party politics; it is an observation about the way in which the Parliament is working. The bill is a poor example. I am not being critical of the cabinet secretary, because he is doing his best to sort out this mess but, as many members including Elaine Murray, Margaret Mitchell and even Roderick Campbell have pointed out, the bill will be totally different at stage 2 from what is under consideration this afternoon.
Nigel Don is absolutely right: there is a need for parliamentary scrutiny. However, we cannot scrutinise if we do not have the information. In that sense, stage 2 is going to be critical because, as Christine Grahame rightly pointed out with regard to inviting evidence, we are going to have to do the job that should have been done before stage 1 and go back into all the detail. We are going to have to look at evidence not just on the amendments but on some of the fundamental principles.
A number of members have talked about the sentencing council, but the fact is that we have got that whole process back to front. The sentencing council, which was promised long ago, should already have been set up and have been able to make recommendations to ensure that the bill fitted into the council’s own deliberations. Instead, we will be setting up the council after the bill goes through.
I want to finish by referring to Christina McKelvie’s comments about the broader policy, which is an issue that I touched on earlier. I think that the issue of women’s reoffending and Dame Elish Angiolini’s recommendations are pertinent to the wider debate, but we need to fit this bill into that wider debate. We need to get out of the party politics of this. We hear that the SNP does not want to spend money on prisons, because it is not seen as the right thing to do; we hear that Labour will not come forward with proposals to spend more money on the criminal justice system, because they might not play well; and we hear that the Conservatives, the Liberal Democrats and the Greens want to do their bit. We are all hesitant about doing something that might well be the right thing, so we need to have a debate on whether we are willing to spend more money on prisons—by which I mean more but smaller prisons—or on the rehabilitation that has been mentioned time after time. If we do not, we will be investing in failure and in the surety of having to spend more money in the future. We need to have a debate about our prison system, about our justice system and about the way in which prisoners are prepared for release, but in the end, we need to remember that it must come down to having safer communities and justice and clarity for victims. As long as we keep dancing around each other, playing party politics—[Interruption.] I am not going to engage in that—I do not have the time.
You must come to a close, Mr Henry.
If the Parliament does not address some of the fundamental improvements that are needed and if we keep introducing bills in this cack-handed way, we are never going to advance the arguments at all.
I now call the cabinet secretary to wind up. Mr Matheson, you have until about 5 o’clock.
16:49
This has been a useful debate. There have been a range of different contributions about the content of the bill. As John Finnie correctly said, the debate has gone much wider than the bill does, which, in my practical experience, is not unusual for a stage 1 debate. Individual members often raise issues that relate to the legislation but are issues of concern or experiences that they feel are relevant to the debate.
As I mentioned in my opening speech, I fully recognise the Justice Committee’s detailed scrutiny of this particular piece of legislation. As someone who served on the Justice Committee for almost seven years, I am well aware of the type of detailed scrutiny that the committee does. I would expect any committee of the Parliament to identify areas in the legislation that need to be improved and to highlight issues of concern that have been raised during evidence sessions by witnesses, orally or in written form, in its stage 1 report. That is one of the real strengths of the Parliament.
I am a little confused about some of the suggestions that what the Government is now doing is, in some way, not acceptable. I am trying to respond to some of the concerns—
Will the cabinet secretary take an intervention?
Can I finish the point that I want to make first?
I am trying to use the stage 1 debate to respond to some of the concerns and issues that committee members and witnesses have raised. That is why I responded to the stage 1 report prior to today’s debate, and set out how we will approach some of those concerns and issues. I see that as a mature and reasonable way of conducting this type of debate. It would be inappropriate for the Government not to set out at stage 1 how it will deal with such issues and to push on, irrespective of what the committee has heard, and not respond to the issues.
The cabinet secretary is absolutely right; that is the mature way to deal with the bill, and I congratulate him on doing the right thing. The problem is that, at stage 2, we will have a fundamentally different bill from the one that was introduced. The failure is in the way that the Government prepared and introduced the bill in the first place. That is what we have got to examine.
Saying that the bill will be fundamentally different is probably overegging it slightly, but I see the point that the member is trying to make, clearly not for political purposes. I recognise that we are bringing in amendments at stage 2 and, as I experienced in different committees of the Parliament, it is not unusual to take further evidence at stage 2 based on the amendments that the Government lodges. I also experienced that during the previous Administration. It is an important element of the process. I have set out the approach that we will take and I fully expect the committee to take further evidence at stage 2 to consider the issues.
As I said, the debate has gone wider than the remit of the bill itself. It has gone into penal policy, sentencing policy and a range of other matters. When it comes to penal policy, I hope that every member in the chamber agrees with the McLeish commission’s view. It said:
“The evidence that we have reviewed leads us to the conclusion that to use imprisonment wisely is to target it where it can be most effective—in punishing serious crime and protecting the public.”
The approach that the Government will take is intended to achieve that in a range of different ways.
Members have raised a range of issues relating to penal policy. The first one that I want to address is the delivery of programmes in the prison estate. Elaine Murray legitimately raised the point about access to such programmes. She will be aware of the purposeful activity review that was undertaken of how activities are delivered in the prison estate. Work is now being done to implement the recommendations that came out of the review.
We will now go into an independent review of programmes, including psychological programmes, that are delivered within the Scottish Prison Service estate. Once we have that report, the SPS will be able to look at how it can build on the programmes that it has at present. Broadly, there are seven strands of programmes that the SPS takes forward, along with a range of other activity mechanisms. The review, which will be conducted by an independent person from the SPS, will consider all those issues.
When I attended the committee, I also said that while there is an anxiety about access to these types of programmes within the prison estate, a significant amount of resource within our prison estate is drawn into dealing with short-term offenders and the churn of short-term offenders within our prison system. If members are serious about dealing with the whole issue of more effective resourcing of rehabilitation programmes within our prison system, they must also be serious about dealing with the churn of short-term offenders. To do otherwise is to completely miss the point and to be entirely unrealistic about dealing with the issue effectively.
I am more than happy to have that debate. The approach that I intend to take will be to ensure that we use our resources in a way that is much more evidence based. Hugh Henry raised the point about whether we should invest in prisons and the political perceptions of that. As a Government, we have spent more than £0.5 billion since we came into office in investing in our prison estate to improve it and the quality of what it can provide.
Christina McKelvie mentioned dealing with women offenders. The cheap option was to build Inverclyde prison, but we as a Government have set out an approach that is much more evidence based. The design of that approach will be more costly to us, but we are mindful that the outcomes will be better and that safer communities will be delivered as a result.
I do not in any way disagree with what the cabinet secretary is saying, but surely he is demonstrating the point that my colleague Hugh Henry was making. These discussions have to be removed from the party-political battle. We have to discuss this in a sensible way, not by having a go at each other. We will not resolve many of these issues if they become a political football.
I am not entirely sure about the political football stuff, because the group that we have established is made up of a range of different stakeholders who will advise on how we move forward with the female prison estate and how we manage it; and we had the Elish Angiolini commission and the McLeish commission, which were independent of Government and set out clearly the measures that we should take in a non-party-political way. That is how we will continue to approach the matter.
I turn to the Conservatives’ position on automatic early release. I have tried in the course of the debate, as I tried when I read the stage 1 report, to deal with the “intellectual conundrum” that Annabel Goldie highlighted: the logic of the Conservative Party not supporting the ending of automatic early release for our most serious criminals. As Annabel Goldie stated in her contribution, the Conservative Party has a distinguished history on this issue—a very distinguished one, as it introduced automatic early release for all prisoners. The logic that it is not supporting a bill to end automatic early release for our most serious prisoners because it does not also do it for short-term prisoners is, I am afraid, beyond me.
When Annabel Goldie made the point that this change in policy affects only 3 per cent of prisoners, I was mindful of what the UK Government has said on the issue. Chris Grayling, the Conservative member who is responsible for this area of policy in England, said:
“I’ve got limitations in the number of prison places I’ve got, so I have to start with the most serious offenders.”
That is exactly what we are doing here in Scotland. He went on to state:
“It’s not something I can change overnight, but it’s something I’m going to change step-by-step and I’m starting with the most dangerous and unpleasant people.”
That is exactly what the Scottish Government is doing. If it is good enough for the Conservatives in Westminster, why is it not good enough for the Conservatives here in Scotland?
Will the cabinet secretary give way?
You will have to be brief, Ms Mitchell.
I will be very brief.
Given that this is a devolved issue, I am puzzled about why the cabinet secretary should be looking at what is happening in England. Our position is quite clear: we are in favour of the ending of automatic early release for all prisoners. The bill does not do that. We will abstain at decision time in the hope that the radical changes that the cabinet secretary has been forced to make to the bill can be looked at again, so that we have some common sense here and so that, at stage 2, the bill is amended effectively to abolish automatic early release, not for 3 per cent of the prison population but for 100 per cent.
Cabinet secretary, you need to be brief.
I will be brief.
The position of the Conservative Party is that it wants to maintain automatic early release for long-term prisoners. By voting against the bill or abstaining in the vote, that is the message that the Conservatives will send out. They introduced early release and, tonight, it looks as if they are seeking to preserve it.
The bill is an important step forward in ending automatic early release. We set that out in our manifesto at the last election and we are taking it forward in legislation. I would call on all members to support the general principles of the bill tonight.
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