Prisoners (Early Release) (Miscellaneous Amendment and Transitional Provisions) (Scotland) Regulations 2026 [draft]
Our next item of business is an oral evidence session on a draft affirmative instrument. We are joined by the Cabinet Secretary for Justice and Home Affairs, along with Scottish Government officials Claire Martin, prison population team leader; and Ruth Swanson, solicitor. I also welcome Linda Pollock, who is the deputy chief executive at the Scottish Prison Service. I refer members to paper 3 and I thank everyone who provided written submissions to the committee. I intend to allow up to 20 minutes for this item. I invite the cabinet secretary to make some opening remarks.
Thank you, and good morning. I begin by placing on record my gratitude and appreciation to Scottish Prison Service staff, justice social work services and other partners for their on-going dedication, hard work and commitment in all that they do.
As the committee will be aware, a rising and more complex prison population is not a challenge that is unique to Scotland. The Government has taken a range of actions to tackle the situation and to create a sustainable prison population. We have optimised the existing prison estate to create 400 additional spaces compared with 2024 and we have provided the Scottish Prison Service with capital funding of £355 million this year and £458.5 million next year to continue the construction of two new prisons, which will add 464 places. The resource budget for the SPS next year will also be increased to £509.3 million—almost half a billion pounds. In addition, we have significantly increased investment in community justice, bringing the total funding for the next financial year to £169 million. That will enable the expansion of alternatives to custody, including diversion, alternatives to remand, and community sentences, which we know are more effective at reducing reoffending than short custodial sentences.
Despite our best efforts, the prison population remains stubbornly high, which poses significant risks to those who are living and working in our prisons. The prison population stands at 8,361, with 13 establishments operating above design capacity and eight at red risk status. Should the regulations be approved, they would reduce the proportion of the custodial sentence that certain short-term prisoners would be required to serve before they are automatically released from 40 per cent to 30 per cent. The change is necessary to ensure that our prisons remain safe and effective. It could result in a sustained reduction of between 239 and 312 individuals, which would better support the delivery of crucial services in our prisons, pre-release planning and the safety and wellbeing of all those who live and work in our prisons. The change would apply only to those who are serving short-term sentences, and those with sentences for sexual or domestic abuse offences will be excluded. That recognises the barriers to reporting in relation to those types of offences and the need to maintain the progress that has been made in increased reporting.
My officials and I continue to engage with partners to maximise planning and support for those who are leaving custody. Additionally, the proposed changes would not take effect until after the current emergency early release scheme ends in April. Those who are eligible for immediate release would be released in tranches to minimise the impact on community services.
I have always been clear that there is no single or simple solution to the challenge that is faced by Scotland, other parts of the United Kingdom and beyond. Although the Government has already taken and continues to deliver a range of actions to increase the availability of alternatives to custody, a long-term change in our approach is needed. We now have the evidence-based recommendations of the sentencing and penal policy commission. Our collective duty is to consider what measures would deliver an effective justice system where prisons are safe environments that are focused on rehabilitation and reducing reoffending to ensure that we have fewer victims and safer communities.
10:15
Thank you, cabinet secretary. I will open the questions. I am not sure that any of us wants to be in this situation today of again looking at a reduction in the percentage of sentence served before early release. I want to pick up on the previous early release change, which was a move from 50 to 40 per cent. I would like a wee bit more detail on the impact of that. To what extent did that change in the early release timescale ease the prison population? That is important as we consider a further change in the early release point. Where did that go? Did it have the effect that we hoped for?
With the STP40 programme, which, for clarity, was under the Prisoners (Early Release) (Scotland) Act 2025, the anticipation was that it would reduce the population by up to 5 per cent but in a sustained manner. We know from work done by justice analytical services that, between February and November last year, the short-term prison population reduced by 8 per cent. Obviously, there was an additional decrease as a result of the current emergency early release programme. If we had not taken the action that we did with STP40, it is estimated that the prison population would be higher by between 260 and 390 prisoners. It has had an impact, but we always said that it would have an impact in relation to what the population would otherwise be.
Linda Pollock, do you want to come in on that, from the Prison Service point of view?
We all know that the prison population is very difficult and is stubbornly high. As the cabinet secretary said, without STP40 and the emergency releases, the population would be significantly higher. It would be towards 8,780 and up to 9,000, which we could not manage in the Prison Service. Although we are sitting at a high level, without the actions that have been taken, the level would have been even higher and would have been unsustainable and unmanageable.
I have one more question, cabinet secretary. You spoke about a requirement for long-term change in our general approach and you referenced the recent report of the Scottish sentencing and penal policy commission, which makes recommendations with regard to short-term prison sentences, in so far as they are not an effective way to reduce reoffending and they often destabilise people’s lives. I know that we are coming to the end of this parliamentary session, but can you provide more detail on the next steps on the back of that report, specifically with regard to short-term sentencing?
Members will recall the statement that I gave to Parliament a few weeks ago. That was the Scottish Government’s initial response to what is a comprehensive and evidence-led report. The very nub of it is to point out that a very high prison population does not equate to a safer Scotland. There is a clear invitation to us all to do things differently.
The report is wide ranging and comprehensive, and we are looking at each of the recommendations. Decisions will, of course, be for the next session of Parliament, but I hope that, in the time that we all have between now and then, we can collectively give serious consideration to the report, as there will be decisions that need to be made or not. Given the scale of the report, we will need to look at what is deliverable and at prioritisation.
The evidence over the past two decades has been clear on the ineffectiveness of short-term sentences. I think that Ms Mackay asked a question in the chamber about the number of people serving a sentence of less than a year. If we take a snapshot on any given day, we find that the figure is about 500 people. The majority of short-term prisoners are serving sentences of two years or less. A body of evidence shows that there are better solutions, when it is safe and appropriate to use them, that make our communities safer.
There is a lot of work to do to consider the recommendations collectively and individually. I know that we are all in campaigning mode, but my plea is that we should try to find ground on which we can reach consensus. If we do not want to keep needing to make decisions that give temporary relief—which is what early emergency release measures do—we need to agree to the regulations that we are considering today, which will provide sustained relief. However, the regulations are only one small part of the jigsaw. We need to carry out more fundamental longer-term reform in order to have safer prisons and a sustainable prison population.
Thank you.
Cabinet secretary, you said that the scheme could reduce the prison population by between 239 and 312 people once it is fully implemented, but numerous previous schemes have failed to deliver a sustained reduction in the prison population. What evidence is there that this change will make a lasting structural impact, rather than it resulting in a short-term dip followed by a rebound in the population?
I remind Mr Kerr that I have always been utterly candid about the impact of each and every measure that we have undertaken. We have undertaken two early emergency release schemes, and I have always explicitly stated that, although there are advantages to such schemes, they provide only temporary relief—sometimes for up to six months; sometimes for less than that—because they are emergency measures. I have never pretended that early emergency release schemes provide anything other than temporary relief that is necessary at a particular point in time.
Reducing or changing the point of automatic release for some short-term prisoners provides a sustained reduction compared with what the prison population would otherwise be. Obviously, I am not in control of the flows into our prison system. However, as I said in response to the convener’s question, STP40 has had an impact on the short-term prison population, and the measure that we are talking about today will reduce the prison population in a sustained way compared with what the population would otherwise be. I gave the figures earlier, so I will not repeat them.
Let me be clear that there is no one solution. I assure Mr Kerr that the Government has never pretended otherwise. Bigger and more fundamental reforms are required.
The reoffending rate is currently about 44 per cent. What impact does your data—which has presumably been collated—suggest that the move will have on the reoffending rate? If the evidence—if any has been taken—shows that the reoffending rate will rise, perhaps due to there being fewer prison interventions or the fact that post-prison throughcare is voluntary, how will the move achieve a sustained reduction in the prison population?
When I gave the original statement, I made a political commitment in response to a question from the convener that we would, in due course, review STP30 if the Parliament agrees to it, in the same fashion that we have a legislative commitment to review STP40. I stand by that commitment.
The return to custody rate—which is different from the reoffending rate—for the first early emergency release programme was 13 per cent of 477 releases. I think that the exact figure was 57—is that correct, Linda Pollock?
It was 61.
Yes, it was 61. The return to custody rate for the STP40 programme was 5 per cent, which equated to 12 or 13 individuals.
I appreciate that the return to custody rate is not the same as the reconviction rate. The figure that Mr Kerr referred to is, if I recall correctly, the reconviction rate for very short-term sentences of less than four years—I think that you quoted 40 per cent, Mr Kerr.
I quoted the 44 per cent reoffending rate.
For which group?
If I may, cabinet secretary, I would like to ask you about that reoffending rate rather than the return to custody rate—to be fair, you are right to concede that they are two different things. Can you tell the committee what the reoffending rate is for those who have been released under the emergency release legislation and also since the change to 40 per cent was made, compared to the mean reoffending rate?
I do not think that we have that information. There is a plethora of statistics on reoffending, which relate broadly to short-term and long-term prisoners. The risk management authority does work on particular categories of offenders. Because there is a lag in the statistics on reoffending, I do not have the instantaneous information that Mr Kerr and others might seek. Claire Martin works on that policy, so I invite her to add to that.
As the cabinet secretary said, we have the return to custody rate for the initial releases under the 2025 act. However, we do not have a reoffending rate specific to that release process. We publish reconviction rates, but, as the cabinet secretary said, there is a bit of a lag, because we need to wait for a time period to pass before we can look at that. There will be a statutory review next year on the changes that were made by the 2025 act, and we will be able to consider the rates in more detail at that point.
Thank you. I have a quick final question. Cabinet secretary, will you confirm for the record that there is no governor’s veto in the scheme? Therefore, no matter how dangerous a prisoner may seem to the governor, they cannot prevent the release of that prisoner.
There is no governor’s veto in this scheme, in the same way as there was no governor’s veto in the STP40 programme. The reason for that is that a governor’s veto can be justified, policy-wise or legally, with emergency early release because we are undertaking a process at pace. However, when you change the point of release for a cohort of prisoners going forward, there is no scope for a governor’s veto. There are advantages and disadvantages of particular schemes. I recognise that people value the governor’s veto in the context of emergency early release, but, as I said, emergency early release does not reduce the prison population in a sustained way.
As we did with the STP40 programme, we have excluded prisoners who are serving sentences for domestic abuse and sexual offences. There is strong justification for that, because, historically, there have been barriers to reporting such crimes. We want to maintain the confidence of the public, and women in particular, to come forward and report such crimes, so there is a robust case for that exclusion.
10:30
We are not attempting to create a hierarchy of offences. As I said, as was the case under previous schemes, most short-term prisoners who will be released under the proposed scheme will be serving sentences of less than two years. It is worth remembering that the prisoners who are released earlier are people who are due to return to our communities in the not-too-distant future and who are not subject to statutory supervision. At the time of sentencing, the court makes a decision about whether someone should be subject to a supervised release order, an extended sentence or whatever. In sentencing a prisoner, the court evaluates what is proportionate, what element is punishment and what is required to manage the future risk.
I ask for succinct questions and responses, so that all members are able to ask questions.
You mentioned the two new prisons that are being constructed. Are you able to confirm that those are still on schedule?
Yes. HMP Highland is on track for the building work to be completed later this year, and the construction of HMP Glasgow is continuing as planned.
I think that you said that that will provide 460 additional spaces.
Yes, that is correct.
I have a question that relates to annex A of the helpful letter that you sent to us, which gives a breakdown by year of the number of people who receive short-term sentences. It sounds self-evident to say that the challenge that we face here is that people keep getting sent to prison, which drives up the prison population. However, the Parliament legislated for a presumption against short-term sentences. I recognise that we cannot cut across the judge’s right to make a determination in considering any particular case, but the information that you have given us shows that, for the past two years, there has been an increase across all three groups: sentences of up to three months; sentences of three months to six months; and sentences of six months to a year. Do you have any sense of why that might be the case? As I said, we cannot second-guess the determinations that are made by the courts, but do we know why that is happening?
As is the case in other parts of the UK and Europe, we are contending with a rising prison population. The presumption against sentences of less than a year is a presumption, not a ban. That has resulted in an overall reduction, but the number is still high. [Interruption.] I am sorry—I am just trying to find the annex that I sent you.
I will not give the precise figures but, basically, from 2022-23 to 2023-24, the numbers being sentenced were up, which goes against the grain of there being a presumption against short-term sentences. Do you have any insight or understanding into what is driving that?
The situation is patchy. In some areas of the country, we see regular and consistent use of community disposals and an increase in electronic monitoring. All that is absolutely welcome.
The independent Scottish Sentencing Council undertook some research to help us understand what is happening with regard to the use of very short-term sentences. That will be helpful.
From my perspective—this is perhaps less than scientific—I consider it vital that we continue to bolster confidence in alternatives to custody and in community payback orders, because the evidence shows that community payback orders lead to better outcomes in terms of reoffending. They are focused on individual needs and risks and on upskilling people.
I have found the figures that Mr Hepburn referred to. In 2014-15, 4,103 people received short-term sentences of up to three months; in 2023-24, that figure was 2,658.
We have to concede that, sometimes, prison is an expensive way of making things worse. That would be my fundamental point, and we need to have a hard conversation with ourselves as a country about that. The figure that I gave for 2023-24 is still a relatively high number, and there is a higher figure for sentences of three to six months. Although I will absolutely never overstep the mark in terms of the independence of the judiciary, I contend that we can invest money to get better outcomes, because, as I said, prison is an expensive way of making things worse.
Good morning. I am clear about the reasons why you are taking this approach, so I will not go into that.
In response to Liam Kerr, you mentioned a reduction in the prison population due to the change to people having to serve only 40 per cent of their sentence. If you had the projected figure for what would happen if there were a further reduction to 30 per cent, that would be useful.
You said that there would be no supervision of people who were subject to early release. Could those prisoners be released even earlier on home detention curfew? Apologies if you have answered that before, but I just want to be clear. Will they still serve that 30 per cent of their sentence in prison, or are there any circumstances in which they could be in prison for even less time than that?
When we embarked on the emergency early release programme, the cohort of people who were eligible to be assessed for home detention curfew fell. Although we have been using home detention curfew increasingly over the past few years, the numbers of people being granted HDC fall when we are doing emergency early release. They would also remain comparatively low if we were doing STP30, because that would involve a similar cohort. Forgive me; I do not like talking about focused cohorts but I will use that word for the sake of simplicity.
You asked for a figure for the projected sustained decrease in the prison population under the regulations. That figure is up to 312, and the baseline figure is 239 to 312.
So, someone who is serving 30 per cent of their sentence will serve it in prison.
People will still be eligible for home detention curfew if they meet the eligibility criteria. We will still be operating home detention curfew as well, but, as you know, there are criteria for reaching the approvals for that. I can send details of that position to you, if that would be helpful.
It would be, because, as I have said in the chamber before, the public will find the proposal very difficult to accept and understand. I am not starting a different conversation about alternatives to custody in the longer term, because I support that notion. What we are talking about is trying to get the public’s head around someone who has been given a four-year sentence serving only whatever 30 per cent of that would be—maybe you could do the maths for me on that; it would be easier if I had said three years.
We need to be clear about how much of their sentence people are going to spend in jail. However, I think that the answer to my question is that some people might not even serve 30 per cent of their sentence in jail, if they meet the criteria. Would you agree that that is the difficult bit for the public to accept? Under the proposals, we are just not clear how much time people will spend in jail in every case.
If I can take those three elements, I will try to be brief—
I do not want to rush you, but I ask you to be as succinct as possible, cabinet secretary.
Absolutely, I accept that.
There is a general point about people not understanding how sentencing works now—that is evidenced by work that has been done by the sentencing and penal policy commission and the Scottish Sentencing Council. Many people are surprised by the fact that people are eligible for release on parole or non-parole licence, or about the proportion of their sentence that a short-term prisoner will spend in custody. There is an issue that needs to be addressed in terms of public discourse. As I said, there will certainly be fewer people going out on home detention curfew—the number is down to around 40 per cent today.
It is 35 per cent.
That is much lower than it has been in previous months.
I am sorry that there is not a shorter, more direct answer to Ms McNeill’s question, but the issue is complex. Although someone must serve a minimum of 15 per cent of their sentence before they are eligible for a home detention curfew, there are other eligibility criteria and a requirement that the period of HDC cannot be more than 210 days. That means that the reality is that most people on HDC are not getting out after serving 15 per cent of their sentence.
There is a bit of a complex interaction—I am sorry about that, but we will follow that up in writing.
You are kind of making the point for me.
Absolutely.
10:45
If we are struggling to understand all the complexities, how can the public understand what is going on? They are alarmed at the reduction to 30 per cent, but further issues could mean that, in certain cases, people could be serving less than that. I would be happy if Claire Martin or Linda Pollock could write to the committee to give us the figures on the calculations for four, three, two and one year short-term sentences, just so that we can see them. I have tried to work it out myself. If someone has a four-year sentence, how much of that are they serving in jail? For transparency reasons, at least, whether people agree with the policy or not, that is very important. That is the point that I wanted to make.
I am happy to do that, Ms McNeill. It is also worth remembering that folk who are released on home detention curfew are tagged and are subject to a licence and recall.
We strongly support the need for long-term change and will support all efforts to make sure that we have a robust range of alternatives to custody available across the country, because, for many offenders, they represent a more effective approach.
On the particular issues that we are looking at today, can you say a little more about the package that will be put in place around the proposed releases? When there have been such releases in the past, there has sometimes been poor planning. I know that some work has been done on that. We also know that all the evidence seems to suggest that the better the planning that is put in place over a period, the more likely it is that the person will not reoffend. Liam Kerr spoke about reoffending rates. Can you say a bit more about the planning for the package of support that will be available?
Absolutely. Planning for release is crucial. That is why we brought in the Bail and Release from Custody (Scotland) Act 2023, on sections 12 and 13 of which I am sure that I have updated the committee. Much of the work that has been done to support the early release of some short-term prisoners is a precursor to the work that is required for sections 12 and 13 of the 2023 act.
We have started from the position that the vast majority of short-term prisoners are not subject to statutory supervision on release unless the court has decided otherwise. Therefore, they have always been entitled to voluntary aftercare. Traditionally, voluntary aftercare fell within the remit of community justice social work. That provision was utilised, and, over the past few years, it has been expanded on through the use of the third sector, which brings considerable advantages. The provision of professional social work throughcare has advantages, but there are also advantages in more bespoke third sector throughcare support. That is why we have the new throughcare contract that Upside is delivering. That has increased the eligibility for throughcare, because it accommodates—for the first time—men who are released from remand.
I will ask Linda Pollock to talk about the planning that starts with SPS engaging with community partners, because that is crucially important.
We have been working very hard, with Upside and other partners, to look more at the pre-release planning that is done for people, particularly in relation to housing, support to ensure that people get their medication, support to meet them at the gate, if required, and voluntary throughcare support. There was a big emphasis on that, especially in the run-up to the emergency releases and the STP40 programme. That has become standard practice in preparation for the implementation of the 2023 act. Through the emergency releases and STP40, we have seen some of the benefits of the improvements in pre-release planning. We are committed to working with partners to continue to provide that support.
I appreciate that we are coming to the end of the parliamentary session, but it would be helpful if you could provide us with more information about that, because we know from previous experience that that support is often not in place.
I also have a question about victim notification, which relates to some of the issues that Pauline McNeill explored with regard to the complexity of the system and the fact that victims—and others who have been impacted by the offender’s behaviour—need to rely on the information that they have. They are often very aware of what they understand is going to happen. The proposed releases will move the goalposts, because the release dates are changing. I understand your point that people do not understand how sentencing works, but what work is being done to ensure that not only victims, but others who might be impacted, will be aware of the changes?
Again, that is crucially important work. I will not rehearse previous debates and arguments about the need to simplify the victim notification schemes. That was a big focus of some of the work that we all did together on the Victims, Witnesses, and Justice Reform (Scotland) Act 2025.
Currently, 3,237 people are registered with the VNS. I concede that on-going efforts are required to increase awareness of the victim notification scheme and to encourage and facilitate registration. For the majority of registered victims, the perpetrators are serving a long-term sentence. There are 472 registered victims in relation to perpetrators who are serving a short-term sentence. Those figures will be a few weeks old, by the way—I got them because I was answering a parliamentary question.
We can give an assurance that, if someone is a registered victim and the release date of the perpetrator is changed, they will be notified. The point is that we need to continue to increase efforts to ensure that people know how to register. The Government is doing that work collectively with victim support organisations and the Scottish Prison Service.
Is it fair to say that, again, that is work for the future? With regard to the proposed releases that we are considering today, from the figures that you have given, the reality is that most of the victims will not be registered. Is that a fair point?
It is really difficult for me to say. Historically, people have gravitated towards registration in relation to long-term prisoners, but there will be many victims who are not registered. We have been engaging in order to get people registered—for example, officials and I have met victim support organisations, and the Prison Service works with victim support organisations. People can still register.
I understand all the points that you are making, but there were very few notifications about the previous early releases, because very few of the victims were registered. From the figures that you have given, it looks as though we will be in a similar position again. I do not know whether Linda Pollock wants to come in.
For the previous change and the previous emergency releases, we have done targeted work with Victim Support Scotland, both through our website and through online and television advertising, to raise awareness and encourage more people to register. At times like this, when there is increased media coverage of the issue, there is an opportunity to provide information about how people can register, to make that as straightforward as possible for them. Along with Victim Support Scotland and Children First, we are using that heightened awareness to get more information out to people about applying.
The figures that have been provided suggest that there is currently a very low level of registration. Is that a fair point?
It is also fair to say that a lot of work has gone into that over the years.
I welcome that.
We currently have a system that people have to opt into. I do not want to incur the wrath of the convener, but there has been a live debate about how we recalibrate that with regard to the victim information team, the work on having a central point of contact and the work around more facilitated conversations. Ultimately, we are reliant on people registering, but there is a bigger debate about how we recalibrate that.
I am not attempting to reopen that debate—I am just trying to get a snapshot of where we are now. Given that very few victims are notified at the moment, it is likely that victims will be notified in only a small percentage of the proposed early releases.
That is because we cannot give people information if we do not know that they want it.
I call Sharon Dowey.
Going back to the issue of capacity, I think that everybody agrees that diversion from prosecution is a good thing, and it is something that we want to look at, where we can do it and where it is working. However, the figures that we have been sent show that more than 1,000 more short-term sentences were given out in 2023-24 than in 2022-23, so something must be going wrong, or must not be working, with diversion from prosecution.
In your answer to Jamie Hepburn, you said that there will be another 460 spaces in the new prisons that we are building, and the early release scheme for short-term prisoners will, I think, give us up to 312 more spaces in the prisons.
However, many of the longer-term prisoners who are taking up capacity are in prison for historical sexual offences; they have been charged and convicted and are now, quite rightly, in prison. Given that we have just upgraded a grooming gangs review to an inquiry, it is probably safe to say that we will start to see a lot more prosecutions of serious sexual offences, as a result of which we will need more spaces in prisons. Is any planning being done at the moment to ensure that we have space for those offenders in prison and that we do not find ourselves back here again, with the Government saying, “We need to release other offenders early”?
That question raises a number of issues, as well as showing, I think, some misunderstanding of the matter and a conflation of certain issues.
First, diversion from prosecution is a matter not for ministers, but for prosecutors, so I will leave that there.
I was just making a point about short-term sentences. Even though we have diversion from prosecution, the number of short-term sentences is increasing. That option might be there for judges and sheriffs, but we had 1,064 more short-term sentences in 2023-24 than we had in 2022-23. Obviously, we do not have the most recent figures yet, but there has still been an increase in short-term sentences, even though we have diversion from prosecution.
Without stepping on the Crown Office’s toes, I simply point out that diversion from prosecution can be used only where there is an identifiable need relating to someone’s offending and where it is in the public interest. Drawing a correlation between diversion from prosecution and an increase in short-term sentences is probably a bit of a stretch. I think that you and I are probably in a different place in that respect, Ms Dowey.
However, I come back to the important and serious point that, if, as a nation, we get better at investigating, prosecuting and convicting the most serious offenders—the most serious domestic abusers and sexual offenders—that will pose questions about the purpose of prison. The purpose of prison, in my view, is to house those who pose the greatest risk to victims. We have always been clear about that. There will always be a need for prisons, but if we want our prisons to function effectively for those who pose the greatest risk, we need to take that long-term view.
I do not know whether Ms Dowey was in the chamber or participated when I gave my statement on the sentencing and penal policy commission, but I could not have made it clearer: if we, as a Parliament, want to move on from making decisions on emergency early release or changing the automatic release point for short-term prisoners, we will need to pursue more fundamental reforms that are based on evidence. If other countries can reform their prison systems without compromising public safety, why cannot Scotland? The longer-term work that I have talked about will, in my view, have to commence, but that will be for the next session of Parliament, and I hope that all of us can engage in it constructively.
11:00
So has any work been done on increasing capacity in prisons?
Yes. As I said in my opening remarks, we have increased prison capacity by 400 since 2024, and that has involved bringing back disused halls and working with HMP Grampian, HMP Polmont and, I think, HMP Edinburgh to maximise current capacity. Obviously, though, there is a limit to the current estate, but we have done that work and have increased the capacity of the existing establishments.
Of course, we have a prison building programme, too, but we need to take other actions to increase confidence in, and the capacity of alternatives to, custodial sentences and to answer some of the questions and points that have been put to us as a Parliament and as a country by the sentencing and penal policy commission.
If any other work is being done to increase capacity, it would be good if the committee could be informed of that in writing. We do not have enough capacity at the moment, which is why the Government is proceeding with early release.
I have written to the committee about all of that. We can always reshare that information, of course.
Thank you.
Our next item of business is to consider a motion to approve the affirmative SSI on which we have just taken oral evidence. I do not need to remind officials that only MSPs may speak in a debate on a motion.
I invite the cabinet secretary to move motion S6M-20793, in her name, and to make any brief additional comments that she wishes to make.
Thank you, convener. I appreciate the opportunity to come before the committee this morning.
I hope that what has been made clear not only this morning, but in my previous statement on the regulations, is that our prison population remains a critical risk and that we must take further action. I have outlined the next steps that, in my view, must be taken to ensure that our prisons can continue to operate effectively and safely. We have a duty to protect the health, safety and wellbeing of staff and prisoners.
There are, of course, safeguards and exclusions in the programme. For example, there will be no change to the release dates for those who have been convicted of sexual offences or domestic abuse. The measure will apply only to short-term prisoners.
With each individual measure that we have taken, I have made it clear that there will always be further steps to take on this journey. We are at a juncture. We now have the sentencing and penal policy commission’s report, and, collectively, we will need to come to a view on it. I reiterate my earlier point: I know that we are all in campaigning mode, but we will have to find some common ground or consensus on that, as doing so is in the interests of the people we serve and, indeed, in the overall interests of our justice system.
I realise that this is a hard decision for people, but I point to experience elsewhere—in doing so, I do not for a minute abdicate our responsibilities here in Scotland. In fact, I would very much contend that taking no further action would itself be an abdication. Other countries have reformed their systems to good effect, and we have also seen the very difficult decisions that our colleagues in England and Wales have had to take in releasing more than 62,000 prisoners early.
I will leave my remarks there, convener, as I do not want to incur your wrath any more.
I move,
That the Criminal Justice Committee recommends that the Prisoners (Early Release) (Miscellaneous Amendment and Transitional Provisions) (Scotland) Regulations 2026 [draft] be approved.
Thank you very much, cabinet secretary. Do members have any further points that they wish to make?
These scenes are extraordinary. First, this morning, the cabinet secretary has justified this specific measure by saying that its purpose is to achieve a sustained reduction in the prison population, yet, in response to questions, she conceded that previous measures were only about temporary relief, and all those measures have demonstrably failed to reduce the prison population. To say that there will be a sustained reduction on the very day that the news contains wall-to-wall reporting of the Scottish Government figures that say that the population could rise to 8,800 by July is brave, to say the least.
Secondly, in response to Sharon Dowey, the cabinet secretary talked about the purpose of prison being to house criminals. In fact, as the cabinet secretary well knows, the classical functions of prison are generally taken to be punishment, deterrence, public protection and rehabilitation. Not one of those is helped by the proposed measure. In fact, on public protection, the cabinet secretary says that victim safety and public safety are the priority, but she has no evidence on the impact of early release on the reoffending rate and the effect on public safety. Indeed, we heard that there will not be a review of reoffending rates until next year. We also heard that there is no governor’s veto, so I presume that those whose release was refused by a governor under the emergency release legislation could now automatically be set free.
Finally, the cabinet secretary did not mention her own figures, which show that, of the prisoners who are eligible for this automatic release, nearly half have been imprisoned for non-sexual crimes of violence and a further third—indeed, more than a third—have been imprisoned for crimes against society or crimes of dishonesty. They will automatically be released. The cabinet secretary says that this measure is to manage the prison population, but it is not. It is a panicked, knee-jerk, unevidenced measure that will be counterproductive in so many ways.
I disagree with the cabinet secretary: this is not a hard decision. It must be opposed, which is why I will oppose it.
I agree with Katy Clark that the longer-term strategy for prison should be based on better alternatives to custody, and I agree with the cabinet secretary on the need to reach a consensus on that. Today, we are being asked to further reduce the statutory sentence that is served by some prisoners to 30 per cent of their sentence. It was not that long ago that we reduced it to 40 per cent. I have serious concerns about the confusion that that will create in the public’s mind. We certainly need to tidy that up if we are to take a longer look at sentencing, because how are the public supposed to get their head around it?
Albeit that only a small number of the prisoners who will serve 30 per cent of their sentences will be on home detention curfew, that will still mean that some prisoners will serve even less than 30 per cent of their sentences in prison. There needs to be a discussion about whether it is appropriate for someone to be on home detention curfew when they will serve only 30 per cent of their sentence. I do not know whether a judge who would have sentenced someone to four years will now calibrate their sentencing, because they will know that the proposed change will mean that the prisoner would serve only 30 per cent of the four years.
Although I agree with a lot of what the cabinet secretary has said, I am not comfortable with managing the prison population through what will be a permanent statutory requirement for some prisoners to serve only 30 per cent of their sentence. I realise that that is where we are with short-term sentencing, but the fact that there will be no supervision further alarms me—somebody could get out after serving 30 per cent of their sentence, with no requirement for supervision. In taking a longer-term look at the issue, the cabinet secretary might want to consider the fact that some offenders should be under supervision, even if they are not serving long-term sentences.
I wanted to caveat my position, which is that I will vote against the motion.
As no other member wants to come in, I invite the cabinet secretary to wind up and to press or withdraw the motion.
It is important that I do not allow words to be blistered. I repeat what I said earlier, which is that the Government and I have always been absolutely candid about the impact of any particular measure. I have never sold any individual measure as the silver bullet or the cure.
The only further point that I would make is that we have a situation in our prisons right now. People can critique the past and debate the future—I assure members that nobody will do that more than I—but the question is, “What are we prepared to do here and now?” Sometimes, hard decisions have to be made. I press the motion.
The question is, that motion S6M-20793 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Nicoll, Audrey (Aberdeen South and North Kincardine) (SNP)
Against
Clark, Katy (West Scotland) (Lab)
Dowey, Sharon (South Scotland) (Con)
Kerr, Liam (North East Scotland) (Con)
McNeill, Pauline (Glasgow) (Lab)
The result of the division is: For 4, Against 4, Abstentions 0.
As the convener, I will use my casting vote to vote in support of the motion.
Motion agreed to,
That the Criminal Justice Committee recommends that the Prisoners (Early Release) (Miscellaneous Amendment and Transitional Provisions) (Scotland) Regulations 2026 [draft] be approved.
Are members content to delegate to me and the clerks responsibility for approving a short factual report to the Parliament on the affirmative instrument?
Members indicated agreement.
The report will be published shortly.
I thank the cabinet secretary, Ms Pollock and the officials for joining us this morning. We will have a brief suspension before moving to our next item of business.
11:12
Meeting suspended.
11:17
On resuming—
Police Service of Scotland (Vetting) Regulations 2026 (SSI 2026/46)
Police Pension Scheme (Scotland) (Amendment) Regulations 2026 (SSI 2026/58)
Human Trafficking and Exploitation (Duty to Notify) (Scotland) Regulations 2026 (SSI 2026/60)
Parole Board (Scotland) Amendment Rules 2026 (SSI 2026/82)
Our next item of business is consideration of a series of negative instruments, which I will work through in turn.
The first negative SSI is the Police Service of Scotland (Vetting) Regulations 2026. I refer members to paper 4, which sets out the instrument’s purpose. Do members wish to make any recommendations in relation to the negative instrument, or are we content for it to come into force?
I am not content. For various reasons, I only had the chance to look at my papers yesterday. Vetting was the subject of a lot of discussion during the process to pass the Police (Ethics, Conduct and Scrutiny) (Scotland) Act 2025. The central issue was not the regularity of vetting being changed; the issue of concern—including to the Scottish Police Federation—was the chief constable having the power to reassess vetting clearances within 10 years. It is not clear whether the process is fair.
A note in the annexe says that a “summary of consultation” was undertaken on the SSI, but it does not really give any indication of what people said during that consultation. I realise that that is because everyone is in the same boat and there was not time to give us clarity on that, but I would rather that we consider the instrument at next week’s session so that we can consider whether we want to annul it. I am not saying that I want to do so, but I am not content for it to be passed on the nod, because we have not had the chance to delve into the detail.
His Majesty’s Inspectorate of Constabulary in Scotland did not recommend such a change to vetting. The chief constable does not currently have the power to dismiss officers simply because she is not satisfied with someone’s vetting clearance. That is quite a wide-ranging power. I want to be sure about what was actually said in the consultation and would rather that we had some time to consider that.
I agree that there is quite a lot in the instrument. I certainly acknowledge that you are uncomfortable with the situation.
I agree with Pauline McNeill. I want to see a wee bit more detail before we pass the instrument. I do not disagree with the chief constable having powers if they are required, but I want to know what is included under vetting clearance. Why are the powers not currently included in Police Scotland’s disciplinary policies and procedures, so that they have another way to deal with such an issue?
The regulations would help the chief constable to
“identify those who pose a potential risk to others, or who are otherwise unsuitable to work within the police service.”
Why can Police Scotland not get rid of such a person through its current disciplinary procedures? Paragraph 8 says:
“During the withdrawal assessment or appeal process a constable may be suspended, provided the suspension conditions are satisfied, and any suspension must be re-considered on a regular basis.”
How long would they be suspended for, and what does “regular basis” mean?
Perhaps we could get some information on how many police officers have been dismissed in the past year, how many have appealed, how many dismissals have been overturned and how many have been upheld. That would give us information on what is currently happening in the police force so that we can see why the power is needed.
My understanding is that the instrument just puts into effect a recommendation that was made by HMICS.
Broadly speaking, I am pretty satisfied with the instrument. The policy note probably explains enough of the context. If colleagues want more information, we can look at it next week, but I am fairly convinced that we will be persuaded.
I also think that there is a danger that we overthink this. As far as I understand it, the instrument just gives the chief constable more flexibility. There is nothing sinister in that at all. It means that, if circumstances change, she will have the ability to step in and redo vetting. I do not have an issue with it, to be honest.
For what it is worth, I noted that, in the earlier session, DCC Speirs acknowledged the SSI and appeared to support it. However, I fully accept members’ desire to have a wee bit more detail to hand before they agree to pass it.
I do not disagree with Jamie Hepburn. Once we get more information, we might be happy to pass the instrument. However, I just point out that, two weeks ago, a minister was here to speak about an SSI. We asked questions about it and, two weeks later, we received a letter that said that the SSI had been withdrawn because the Government had found issues with it after doing more investigation. Therefore, it is not unreasonable to get a bit more information before we pass the instrument.
There have been court cases because of probationers being summarily dismissed. My issue is not general vetting but the proposed power. I raised the matter during the passage of the 2025 act, because I was never comfortable with it. The Scottish Police Federation thinks that the power could enable vetting to be used as an excuse to get rid of police officers and that the process should be more transparent. That is my only issue, but we have to ensure that the right route is in place.
Clearly, we will discuss the issue further, but I just note that, if my reading of the process is correct, the final decision on vetting will not be with the chief constable. Someone has to be appointed to look at any matter. That is just my observation, but if we are to look at the matter further anyway, that is fine.
Pauline McNeill, you can propose by motion that the lead committee recommends annulment of the instrument. I am not sure whether that is what you were getting at. If you choose to lodge a motion, it will need to be debated at the next committee session.
In any case, I propose that we bring the SSI back to committee to allow further information to be obtained. Do members agree with that approach?
Members indicated agreement.
Our next negative SSI is the Human Trafficking and Exploitation (Duty to Notify) (Scotland) Regulations 2026. I refer members to paper 6, which sets out the instrument’s purpose.
Do members wish to make any recommendations in relation to the negative instrument, or are we content for it to come into force?
I just want to reiterate the point that I raised with the chief constable. The regulations come more than 10 years after the Human Trafficking and Exploitation (Scotland) Act 2015. They are probably needed and should have been introduced earlier. However, I am concerned about whether we are giving the proper authorities the amount of funding that they need to ensure that the regulations are implemented properly.
The clerk informs me that I have jumped ahead on the list of SSIs and have missed one out. We will come to it in a moment—I apologise for the delay.
Thank you for that point, Sharon Dowey. As no other members wish to come in or make any recommendations, are we content for the instrument to come into force?
Members indicated agreement.
Our next negative SSI is the Police Pension Scheme (Scotland) (Amendment) Regulations 2026. I refer members to paper 5, which sets out the instrument’s purpose. I declare an interest, because I previously served as a police officer with Police Scotland.
As no members wish to make any recommendations on the negative instrument, are we content for it to come into force?
Members indicated agreement.
Our final negative SSI is the Parole Board (Scotland) Amendment Rules 2026. I refer members to paper 7, which sets out the instrument’s purpose.
As no members wish to make any recommendations on the negative instrument, are we content for it to come into force?
Members indicated agreement.
That concludes our consideration of SSIs. I will suspend very briefly to allow witnesses to join us at the table.
11:28
Meeting suspended.
11:29
On resuming—