The next item of business is a debate on motion S4M-13597, in the name of Michael Matheson, on the Prisoners (Control of Release) (Scotland) Bill.
15:22
I welcome the opportunity to open the stage 3 debate on the Prisoners (Control of Release) (Scotland) Bill. First, I offer my thanks to the Justice Committee, the clerks to the committee and all those who gave evidence during Parliament’s scrutiny of the bill.
Before I move on to why the reforms in the bill are important, I think that it is appropriate to reflect on how Parliament has helped to shape and improve the bill. Through the diligent work of the Justice Committee, under the leadership of its convener Christine Grahame, stakeholders’ views were sought and committee members carefully reflected the evidence that they had heard in making recommendations to improve the bill. That is why, at stage 2, the Scottish Government lodged amendments to make the bill better legislation, which is to the credit of the scrutiny role that was undertaken by the Parliament—especially members of the Justice Committee.
As members will be aware, the bill is relatively small, but it contains important reforms in two key areas in respect of prisoner release. Policy on early release of prisoners is an emotive topic that often generates considerable debate, as has certainly been the case as Parliament has scrutinised the bill.
Section 1 will end the current system of automatic early release for all long-term prisoners at the two-thirds point of their sentence. In its place will be a system in which many long-term prisoners will no longer be entitled to automatic early release at all, while the rest will have early release restricted to the last six months of their sentences.
It is important to explain clearly what the bill will do. Automatic early release will be ended for any long-term prisoner who has an extended sentence. That means that prisoners whom the court has assessed as having the highest need for supervision will never be released automatically from custody. Such prisoners will always be supervised when they leave custody through the operation of extended sentences. Figures show that about 50 per cent of long-term prisoners who receive sentences for sex offences have an extended sentence in place and about 20 per cent of other long-term prisoners also receive extended sentences, so a significant number of long-term prisoners will, in the future, never be entitled to automatic early release.
In response to the views of the Justice Committee, the bill was improved at stage 2 to ensure that supervision would be in place for each long-term prisoner leaving custody. That provision avoids the issue of a prisoner’s being subjected to cold release into the community. That will mean in practice that a long-term prisoner who does not have an extended sentence will be released with six months left on their sentence. That release will include licence conditions for supervision to help the prisoner to reintegrate into the community and to ensure that steps can be taken to recall the prisoner into custody if a breach of conditions occurs.
We consider that the reforms will provide greater public safety. Discretionary early release will still be possible following the reforms, but automatic early release will be either ended or severely curtailed for long-term prisoners. We think that it is right to trust the independent Parole Board for Scotland to continue to consider the cases of individual prisoners, and to make decisions about whether to authorise early release based on assessment of the risk that the individual poses to public safety.
There are data about how behaviour in the community following automatic early release compares with that following discretionary early release. The rate at which prisoners breach their licence conditions following automatic early release is seven times higher than the breach rate for prisoners who receive discretionary early release. The rate at which prisoners are recalled to custody following automatic early release is five times higher than the recall rate for prisoners who receive discretionary early release.
The independent Parole Board does a challenging and difficult job, and if the bill is approved, it will have increased powers to carry on its good work and to make more decisions about whether long-term prisoners should be released into the community before a sentence is at its end. That will help to keep our communities safe while still allowing early release for individual prisoners in order to aid their reintegration into the community, where the risks to public safety are manageable in the community.
I believe that it is worth discussing why the minimum length of supervision should be six months. MSPs will be aware that stakeholders suggested that the initial weeks and months following release are generally the most critical for prisoners reintegrating into the community. A mandatory control period would be most appropriate during that period, when prisoners who have left custody seek to re-establish themselves in their communities, and when challenges including accessing housing and work opportunities can be at their most acute. A period of six months will ensure supervision during that important time. Of course, considerable work goes on in prison in the lead-up to a long-term prisoner’s release. Although the length of supervision is important, it is our view that the quality of support and supervision in the lead-up to release and following release are critical.
Reducing reoffending is a priority for the Scottish Government. Although reconviction rates are at a 16-year low and recorded crime is at a 40-year low, we can always do more to address offending and its underlying causes.
We are taking forward work to reduce reoffending. That will require the establishment of more effective and closer links between the criminal justice system and wider aspects of our public sector and the third sector. I chair a Scottish Government ministerial group on offender reintegration, which has sought to address the key demand for better integration between our criminal justice system and wider public services in order to facilitate a reduction in reoffending. The second section of the bill makes an important contribution in that area and is a key ministerial commitment from that group. The releasing of prisoners from custody when important support might not be available in the community is a key barrier to ensuring continuity of support in the transition from custody to the community.
The ability of prisoners to access public services including housing, welfare and addiction services and advice on the day on which they are released is crucial to successful reintegration. The availability of such support can be particularly problematic on Fridays and on the days preceding public holidays. When there is evidence that suitable arrangements are required to address a prisoner’s reintegration needs and those cannot be addressed immediately on release, the bill will allow the prisoner’s release to be brought forward by up to two days. I welcome Parliament’s strong support for that important provision, which will make a real difference in allowing a more flexible approach to be taken, in individual cases, to supporting prisoners on their release from custody.
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 three key factors: individual consideration of a prisoner’s needs, consideration of the risk to public safety that the prisoner might pose, and the need to have effective supervision in place. I believe that that is the best way to protect our communities and to reassure the public.
I move,
That the Parliament agrees that the Prisoners (Control of Release) (Scotland) Bill be passed.
I call Dr Elaine Murray. You have seven minutes. As we are now quite tight for time, please make it a pretty exact seven minutes.
15:32
The term “ending automatic early release” has been used so often over the years that its meaning has not been questioned. That was the case until the Justice Committee heard the evidence that was presented at stage 1, which certainly made me think again about an aspiration that, for years, most members have held to be desirable.
Currently, between half and two thirds of the total sentence imposed is served in custody and the remainder is served under licence in the community, during which time the offender is supervised and can be recalled to custody if the conditions of the licence are breached. Whether the point of release is halfway through the sentence or at the maximum two-thirds point is determined by the Parole Board on the basis of the risk that the offender might pose to the community.
The bill as introduced at stage 1 proposed that, for certain categories of long-term prisoners, those who had not been deemed safe to be released on parole should serve their entire sentence in custody, following which they would be released cold into the community without any mandatory supervision. An offender who had served a long-term sentence for a serious or violent crime and who had not been rehabilitated would have walked out of prison at the end of their custodial sentence and disappeared into the community. I was therefore pleased when the Government indicated its intention to amend the bill at stage 2. We supported the bill at stage 1, because the Government had recognised that it would be a mistake to allow such releases.
The bill that is before us does not end automatic early release, nor should it, for the reasons that I have just stated. The bill provides that long-term prisoners must serve the last six months of their sentence under licence in the community, during which time they must be supervised, as the cabinet secretary described.
Although my amendments at stages 2 and 3 that argued for greater flexibility and proportionality with regard to the period of time that should be served under supervision were not accepted, we agree with the general approach that the Government is taking towards sentencing. It very much resembles the approach that was taken back in 2007 by the Labour-Liberal Scottish Executive when we introduced the Custodial Sentences and Weapons (Scotland) Act 2007, which was subsequently amended by the Criminal Justice and Licensing (Scotland) Act 2010—namely, that a sentence involving imprisonment should consist of two parts: a part to be served in custody and a part to be served under mandatory supervision in the community. As the cabinet secretary said at stage 2,
“In essence, the sentence is a custodial and supervisory one.”—[Official Report, Justice Committee, 2 June 2015; c 3.]
That was the intention of our legislation in 2007.
We, like the Government, believe that a sentence served under licence in the community is not a soft option. It is not a release from sentence. However, I and the academics whose evidence I quoted during the debate on my amendment have argued for a more flexible approach with regard to the length of sentence served under supervision. The supervisory part of a sentence has to be efficacious and it has to be right for the individual offender—it has to provide rehabilitation and strive towards the prevention of reoffending.
I consider that my amendment could have provided an opportunity to ensure clarity at the time of sentencing, as the court would specify the minimum time to be served on licence when the offender had not been released on parole prior to that point in their sentence. However, unfortunately that was not accepted by the Government.
Is the bill as it is now drafted preferable to the current situation? Will victims, communities and offenders be given a more accurate picture of the maximum custodial sentence for the offender? Yes, I think they will. Will members of the judiciary alter the length of sentences imposed? Quite possibly they will. That is one of the reasons why I wished to see greater flexibility. The bill will not affect the majority of the prison population—still only about 3 per cent of prisoners will be affected.
Is six months an adequate period of time to serve in the community under licence? The Law Society of Scotland provided a briefing to MSPs last week in which it expressed its reservations, stating that
“the reduced licence period of 6 months may well be wholly inadequate to assist reintegration into the community and reduce risk of reoffending.”
Will the member take an intervention?
No, sorry. I do not really have much time.
In the ministerial statement prior to this debate, Fergus Ewing reminded us that irrational decisions can result in judicial review. I refer to the briefing that we were all provided with on Sunday by not only four academics but Apex Scotland, Circle Scotland, Howard League Scotland, Positive Prison? Positive Futures, the Scottish Association of Social Work, Social Work Scotland and the women for independence justice for women group. They all said:
“the Bill ... seems to us to have been created without careful thought and without being informed by the extensive national and international evidence on custodial and community sentencing policy.
Furthermore, the Bill misses the opportunity to better clarify sentencing and release policy. It may well be possible to combine the virtues of public safety with clarity in sentencing, but unfortunately this Bill appears to achieve neither.”
During the passage of the bill we have taken a constructive approach to it. We supported the Government at stage 1 and at stage 2, very much in the hope that a proportionate supervisory sentencing regime could be achievable. The Government debated my stage 2 amendment, and my stage 3 amendment was lodged in time for the Government to lodge an improved alternative. If 12.5 per cent of the sentence was not thought appropriate, there was time for the Government to come forward with something that was more appropriate, but it did not do so; it has stuck with the blanket six-month supervisory sentence at the end of the sentence.
Will the member give way?
I am sorry, but I do not have much time.
The Government has not been able to provide evidence that a six-month supervisory sentence for all long-term prisoners is proportionate and sufficient. It has not provided evidence that public safety will not be compromised if somebody has not engaged appropriately within that six months. There is also the argument that, if someone did not conform to the conditions of the licence during that six months, they would be back inside only for a short period before they were back out again. It would not necessarily be effective for all prisoners.
It has also been argued that the bill as proposed could have increased European convention on human rights implications.
It is for those reasons, and with considerable regret, that I advise the chamber that Scottish Labour cannot support this bill tonight.
15:38
I pay tribute to the Justice Committee clerks for their hard work and to the witnesses who provided such vital and insightful evidence at stage 1 and stage 2 of the bill.
The bill is in two halves. Section 2 provides the Scottish Prison Service with the power to release prisoners up to two days early to facilitate community reintegration. That is a sensible proposal that will create the flexibility required to help provide access to adequate support services at a critical juncture for the offender.
Unfortunately, the same cannot be said of section 1, which deals with the automatic early release of prisoners. In its 2007 and 2011 manifestos, the Scottish National Party made commitments to end automatic early release. Six years after 2007, it lodged an amendment to the Criminal Justice (Scotland) Bill that pledged to end automatic early release for less than 1 per cent of prisoners. It then presented the same proposals in separate legislation to end automatic early release for sex offenders who have received custodial sentences of four years or more and other serious offenders who have received sentences of 10 years or more.
As numerous witnesses pointed out, there was little logic to those proposals, given the low-level recidivism rates for those categories of prisoner. The new cabinet secretary therefore lodged amendments at stage 2 to extend the bill’s provisions to all long-term prisoners with determinate sentences of four years or more. However, even with those changes, the bill now covers just 3 per cent of prisoners.
Despite the cabinet secretary’s efforts at stage 2 to justify the bill, witnesses and stakeholders maintain that section 1 is not fit for purpose. There has been absolutely no attempt to carry out the necessary meaningful scrutiny of and debate on the provisions, which the Law Society of Scotland described as possibly
“the most radical change in custodial sentencing policy for twenty-two years”.
Will the member give way?
If Mr Allard does not mind, I will make progress.
We are now in a situation in which the legitimate concerns and criticisms of stakeholders, which range from learned and respected academics to third sector and voluntary organisations at the cutting edge of the criminal justice system and include criminal justice social workers, the Law Society of Scotland, the Howard League, and gender and equality groups such as the women for independence justice for women group, are being swept aside by the new cabinet secretary.
Stakeholders’ deeply worrying comments highlight the many deficiencies in the bill, such as the flawed procedure and lack of evidence, the proposed blanket six-month compulsory supervision period, and the potential for article 5 European convention on human rights challenges. The Government’s proposed changes at stage 2 simply replace automatic release at the two-thirds point of the sentence with automatic release at six months before the completion of a sentence.
Will the member take an intervention?
No. If the member does not mind, I have some progress to make.
That in turn has proportionality implications that may lead to potential human rights challenges.
The Government has not made the case as to why it has rejected a proportionate approach. Professor Fergus McNeill highlighted the extent of that problem when he pointed out that, under the current fixed period proposals,
“if a person is sentenced to five years, 90 per cent of their custodial sentence would be in prison. However, if a person is sentenced to 10 years, that increases to 95 per cent”.—[Official Report, Justice Committee, 27 May 2015; c 3.]
Furthermore, at present the demand for rehabilitation programmes already outstrips supply, and that demand will almost certainly increase, which will lead to an inevitable challenge under ECHR.
To quote the somewhat damning indictment of key stakeholders, the bill
“will not end automatic early release, it will not reduce reoffending and it will not improve public safety in the longer term; indeed, it is likely to jeopardise both public safety and reintegration.”
In those circumstances, it would be foolhardy to support the bill.
15:44
We must acknowledge that the bill has moved since stage 1 and that it operates in the context of the 2007 and 2010 legislation in the area, as yet to be implemented, and, of course, the McLeish commission. It is not and does not purport to be a bill about clarity in sentencing. The sentencing council will no doubt help in that area in due course, and we should wish that new body well. The bill is not the last word on automatic early release, either. That is absolutely clear. However, it is clear that the bill represents a first step along the way of ending automatic release and reversing the Tory policy of 1993.
We ought to recognise the Government’s response to criticism of what was described as “cold release”. We should also recognise what Dr Barry described as the need for
“proactive support in relation to accommodation, employment, education, benefits and so on.” —[Official Report, Justice Committee, 13 January 2015; c 7.]
We should bear in mind the need for throughcare for offenders returning to the community.
We should welcome the commitment by the Scottish Prison Service to providing 42 officers to support offenders to reintegrate back into the community, building on the work already begun in prison that the cabinet secretary referred to earlier.
There is a need to ensure that there are adequate numbers of programmes available to offenders within prison to enable them to change their behaviour. Yes, there are challenges and those programmes will need to be adequately resourced, but we have time to plan for this adequately. Indeed, as the cabinet secretary said during the stage 1 debate, an independent review of prison programmes, including psychological programmes, will be carried out. It is not helpful to highlight the possible ECHR challenges that might take place if programmes are not in place; rather, we need to allow the Scottish Prison Service to get its house in order.
The Government always recognised that any reduction to the period of automatic release might incentivise participation in programmes and any planning needs to take account of that. In that context, let us bear in mind that planning can be complex. Eric Murch of the Scottish Prison Service commented:
“Some prisoners will deny that they have a problem until very close to their critical date and then they will try to move up the list.” —[Official Report, Justice Committee, 24 February 2015; c 46.]
Is six months of guaranteed supervision adequate? We have heard a lot of debate about that and there is a variety of views. We know the position of Colin McConnell and Sacro, and we know that others take a different view. That was debated earlier, so I will not repeat the arguments, but I point out that the academics accept that the highest risk period is immediately after release even if they do not accept that that is the only period when support is required.
We reached a decision on that period earlier, and I have no doubt that courts will take account of the provisions and the alternatives, such as the increased use of extended sentences, at the appropriate time.
Some of the academic critics of the bill would, if their wishes were granted, simply succeed in kicking matters into the long grass. At stage 1 even Margaret Mitchell suggested that that was a real danger, and in February Sarah Crombie of Victim Support Scotland said that that would cause that organisation concern. Despite the academics, we need to grasp the nettle.
Public safety remains important. I am not sure what the frequently mentioned empirical evidence would show—if it were ever to be obtained—except that this group of prisoners will no longer be sent out to the community, come what may, at the two-thirds mark of their sentence.
The Parole Board will have a greater role than it does now. Public safety will not be reduced. Let us also not forget the availability of extended sentences to courts at the time of sentencing. That will provide additional protection for the public in appropriate cases.
Concerns have been expressed about the financial costs of the legislation by 2030-31. That is a long way off and much can happen in the interim. I hope that it will encourage further thought to be given as to the appropriateness of many short sentences, which, as we know, often do not act as a deterrent and certainly do not provide adequate time for rehabilitation.
Despite its critics, the bill has considerable value and I commend it to the Parliament.
I have a little bit of time in hand at this stage.
15:48
I am pleased to speak in this afternoon’s debate. However, I am disappointed because introducing the legislation in this way is a missed opportunity.
Rod Campbell says that the bill is a positive response from the Government to the issue of early release. He added that that was for “this group of prisoners”, but indeed that is a small and exclusive group.
Let us remember how we arrived at the position that we are in today. In 2013, Kenny MacAskill proposed the bill and said:
“We have stated clearly our aim to end the system of automatic early release ... we are committed to fulfilling that pledge”.
In 2014, he added:
“This Government is taking tough action to keep communities safe and reduce the likelihood of prisoners reoffending.”
I am sorry to say that I do not see the amended bill reflecting those commitments.
Professor Cyrus Tata, in evidence to the committee, observed that reconviction rates for those serving sentences of between three and six months is 53 per cent, yet, having served only half of their sentences, those prisoners will not be the subject of supervision by criminal justice social work.
We should not be talking about early release; rather, as Professor Fergus McNeill indicated, it would be much better were we to identify a timely release period. I reiterate that the bill does not deliver on the notion of a timely release with appropriate supervision thereafter.
As Dr Monica Barry reflected, the current legislation is very much about the offence and the length of sentence, rather than about the risk and the perceived threat and what is being delivered in terms of community safety. There is a shortcoming in what the bill delivers in that respect. Indeed, from the viewpoint of the public—from the viewpoint of victims and witnesses—the bill does not provide clarity on sentencing so that they can be confident that they know precisely what will happen to an accused once that person leaves the court upon conviction. The bill does not deliver what, in my view, Victim Support Scotland suggested in saying that it is an important advance that will go a long way to improving public perception of justice.
The speeches in today’s debate from the cabinet secretary and other members indicate how confusing the issue is. Indeed, Professors Tata and McNeill, along with Dr Barry, suggested that the bill should be scrapped and that we should go back to the start of the process. I have sympathy with that view.
The public cannot stand front-door sentencing and back-door releases. They are extremely frustrated by that prospect.
It is important to understand what the academics told the committee. They said that cold release is the problem. A vast amount of cold release is happening. The cabinet secretary will ensure that there will be no more cold release, with a mandatory six-month period of support. Stopping cold release will ensure public safety.
I am grateful for that intervention. I accept that the days of cold release should be history. Unfortunately, they will not be. Over the past few months, I have attended a number of third sector meetings at which the main concern is still about people being cold released from prison with no support.
I remind the chamber that those who will be affected by the legislation will number in their few hundreds. However, each year, more than 14,000 people are sentenced. The legislation does not provide an end to early release. It must be reassessed and reconsidered.
15:52
It is important to remember that automatic early release is a management device. It was introduced as a safety valve to ease the pressure caused by escalating prison populations, not because of any compelling evidence that such a measure would improve public safety.
A number of questions face members today. Will the reform reduce reoffending? Will offenders receive sufficient supervision and support? Will it better protect our communities? Will it make sentencing more transparent and give victims more certainty?
The bill faltered because the initial draft was flawed in a number of those respects. I welcomed the cabinet secretary’s willingness to listen and to respond to the Justice Committee’s concerns as set out in its stage 1 report. I suppose the question in that regard is whether the cabinet secretary has gone far enough. Members have received a late joint submission, which some have mentioned, from witnesses including academics, the Howard League Scotland and Positive Prison? Positive Futures, that has cast doubt on that.
I have some sympathy for their argument that the case for the bill has not been entirely substantiated. For example, there is less than comprehensive evidence supporting the flat six-month release. Nevertheless, the cabinet secretary has set out in some detail why he considers that we should proceed with the amended bill. I am also mindful that the Risk Management Authority and the Parole Board for Scotland are broadly supportive of the legislation.
The legislation will mean that the Parole Board will be involved in decisions about the release of each individual long-term prisoner. The release of potentially dangerous offenders will be delayed, and the public will continue to be protected from those who have failed to progress through the prison regime or mediate their behaviour to the extent that they could be managed early in the community.
It would mean that the Parole Board decided when each long-term prisoner was fit for release, based on individual circumstances. That would delay the release of dangerous offenders: those who had not mediated their behaviour or engaged with rehabilitation programmes. The reforms could cause more prisoners to engage at an earlier stage of their sentences. We are talking about those prisoners whom the Parole Board described as “happy to wait”, in the knowledge that they will get out after two thirds of their sentence, irrespective. However, when it comes to providing programmes and courses, ministers and the SPS will of course need to ensure that supply meets demand. There is no doubt that the Government must ensure that the quality of the proposed supervision of long-term prisoners on six-month release is adequately resourced and regularly reviewed.
I turn to section 2. It is eminently sensible to release some people a day or so early if it guarantees that they receive the assistance that they desperately need with accommodation, employment or addiction. Many public and third sector services do not operate 24/7 or are not easily accessible, particularly in rural and remote areas of Scotland.
The short bill is a reminder of the Scottish Government’s record of disjointed penal reform. It reforms early release for some prisoners in isolation and neglects many more pressing priorities. Why have successes in reducing youth offending not been rolled out more widely? Where is the concerted shift towards effective community-based sentences and diversion from prosecution? Where are the plans to further reduce senseless, destructive short-term sentences or to reduce the number of people on remand?
In 2013-14, just more than 4,000 people were handed sentences of less than three months, despite our having a presumption against three-month sentences in 2010. A further 5,000 were imprisoned for between three and six months. Those are the people whom the McLeish commission dubbed “more troubling than dangerous”, yet they take up the SPS’s time and effort and limit its ability to engage with the most serious long-term offenders. It is perverse that young short-term offenders, who are most at risk of reoffending, still do not benefit from statutory throughcare.
I therefore urge the cabinet secretary to develop a clear, overarching and generally progressive strategy that is bold and ambitious. We need to focus on how to bring an end to the primitive punitive approach that causes so many people to be sent to prison in the first place when it clearly is not the best place for them or the communities to which they return.
15:57
The policy memorandum talks about helping to reduce offending and improve public safety, and it is important that we have an evidence base for that. People have referred to the Justice Committee’s report, which questioned the focus on sex offenders, not least given their compliance while in custody and their level of reoffending. We heard clear evidence from the Risk Management Authority on that.
The Justice Committee discussed the populism of the bill. I do not think that it is weak in any way for the cabinet secretary to have changed his position on a number of issues. He actually showed strength by listening. After all, that is what the Parliament is here for; it is that scrutiny and change that are important.
Time will tell whether the bill will reduce offending. To my mind, it is poverty prevention and poverty alleviation that are important, but everything will play its part. We do know that there is a clear link between supervision and support, and reducing offending.
The critical early days have been talked about. Less talked about has been the provision that brings forward the release date to assist prisoners to reintegrate. I question whether some of them have been integrated in the first place. That is where the challenge lies. There are challenges around housing, health and, increasingly, the Department for Work and Pensions. We can deal with the first couple, but not the third. Clearly we would want some alignment with United Kingdom policy on that.
I discussed the proportionality of supervision with Dr Elaine Murray in advance of the committee’s discussion of that. As Dr Murray knows, I was minded initially to lend my support to her proposal. However, my mind was changed on that by my discussions with the cabinet secretary at stage 2, in which I sought confirmation on what the bill would mean for individuals. We know that community justice workers who work in prison do an admirable job. I asked about risk assessments for individuals and I said that treating everyone equally does not mean treating them the same: people have different needs. I was reassured by what I heard then, which is why I will lend my support to the bill tonight. I was reassured on the non-statutory support that continues after six months and the very important plans for release, which involve the SPS and the criminal justice social work service.
A key point in my persuasion was when the cabinet secretary said that quality rather than quantity was important—a point that one member has already raised. His link with the chairing of the ministerial group on offender reintegration is important.
On long-term prisoners, I commend the approach to release in order to help start employment. The provision of 27 throughcare officers is very important; I am keen to see progress on that. The Christie commission on the future delivery of public services talked about organisations working together for the integration of health and social care. There still are challenges, though, as members have said, for prisoners who have been released.
I do not think that the availability of rehabilitation programmes should be scattered. The Scottish Human Rights Commission said that there would be the possibility of prisoners raising appeals about that, as it would ultimately affect their right to liberty under article 5 of the European convention on human rights, so that is important.
I would also ask whether the balance—the cost—is correct in the scheme of things, as I have mentioned previously. This bill will cost over £16 million, compared with a community justice budget of £31.8 million.
There is also the issue of where the bill fits in the overall direction of travel. I would like to see a situation in which the only people who are being confined are those who pose a threat to our communities. Dr Murray talked about extending MAPPA to cover violent offenders. That is something for which there would be an evidence base or understanding of where individuals sit in the scheme of things.
For me it is about prevention, rehabilitation and never losing sight of it being about individuals. Positive prison? Positive futures says that it values the changes to automatic early release but
“only as part of a comprehensive review and restructuring of the criminal justice system from arrest through to release”.
Rod Campbell talked about rejoining the community and the thought-provoking approaches that we may need to take in respect of that. The Howard League for Penal Reform talks about community-based supervision. That is the future, not more prison.
16:01
Much has already been said about this short bill, so I will try not to repeat too much. I think that we all agree that ending automatic early release is, in itself, a good thing. The Justice Committee, with the exception of Margaret Mitchell, agreed with the general principles of the bill.
Members will recall that at the committee stage the bill dealt with certain categories of long-term prisoner. As amended, it deals with all long-term prisoners—those who are serving four years or more. We are not talking about short-term prison sentences, so those are irrelevant in discussion of the bill. One might ask why we do not end automatic release for all, but that is not the purpose of the bill, and there are practical constraints. In order to deal with that issue, we know that we have to have more prisoner places and more post-custody support, and—as the cabinet secretary made plain in his evidence to the committee—we have to be looking at a change of culture to having alternatives to short-term custodial sentences. We know that those sentences simply do not work and that there is a revolving door with people going in and out of prison.
I hope that the announcement about how we are to deal with women offenders heralds how we will deal with young offenders and others, in terms of looking at the whole set of circumstances that lead some people—though not all—to find themselves in the penal system with a drug or alcohol habit.
For long-term prisoners, one thing that the committee was quite rightly concerned about was cold release. Therefore we welcome the stage 2 extension of the bill’s provisions to all prisoners serving four years or more. We also asked that the six-month period be made part of the custodial sentence: that is what has happened. The sentence continues, but there is a bridge, as it were, from rehabilitation programmes in prison to when the person is out of prison.
Although nothing is perfect in this world, in evidence we were told that it is during the early weeks of a prisoner’s release—in fact, the early hours and days—that the person is vulnerable to going back into old habits with old gangs that they knew.
Elaine Murray’s amendment is complicated. We did not take evidence on fractions of sentences, so I do not think that the amendment would have taken us forward. At least we know where we are with six months; six months is the mandatory period, but that does not mean that nothing will continue thereafter.
That will also link into the Community Justice (Scotland) Bill, and that is where we see the larger picture. There is £100 million going into community justice to look at how we handle community sentences and people once they are released from prison. We know that prison does not work for most people. Obviously there are people who should be kept in prison and away from others because they are a danger to society, but for many people prison simply does not work.
Section 2 contains a provision that will be lost if the bill is voted down, which concerns the timing of release to benefit reintegration. We all know—as others have said—that releasing a prisoner on a Friday is bad. Everything is closed, the person is left to meet their old cronies, they have no money, they have no social security and they have no home. They have nothing. Members who vote against the bill tonight are voting against the flexibility that will enable prisoners to be released earlier, up to two days before their release date.
The bill gives clarity to victims. Somebody who is sentenced to six years will do five years and six months and will then have six months supervision in the community. Everyone will know where they are with the provisions in the bill. Of course, the bill is not perfect, but I do not know any piece of legislation that has been passed by this Parliament that is perfect. The Government’s endeavours are a start; it is trying to ensure that there is continuity of rehabilitation from within the prison to outwith the prison, we hope with the same people involved. I know that Colin McConnell, the chief executive of the SPS, has made it plain that that is his goal.
I want to ask about the commencement of the provisions. Section 3(2) says:
“The other provisions of this Act come into force on such day as the Scottish Ministers may by order appoint.”
If the bill is passed tonight, we are talking about prisoners being released at different times, with six months’ supervision, so I would like to have some idea about when the provisions will come into force.
I am not sure whether Labour is abstaining or voting against the bill. Either would be a bad move. If Labour members were to be successful in stopping the bill, they would be stopping prisoners having supervision when they require it and they would also be stopping people being released at a time when they have some chance of making a better start.
16:06
The core principle behind the bill is recognised across the chamber: automatic early release of prisoners does not engender confidence in our criminal justice system among the general public and must be reformed. However, that does not mean that the legislation and the Scottish Government’s overall approach to sentencing are appropriate or adequate.
It is important to note again that the Scottish Government attempted to squeeze the content of this important bill into a previous bill, but we should be grateful that it listened to the recommendation of the Justice Committee to place it in free-standing legislation.
Scottish Labour is in complete agreement 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. It is not good enough that victims of crime and their families hear that someone is sentenced to X years in prison but 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 might increase confusion about sentencing, however. As Victim Support Scotland noted in its submission,
“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 amendment that was lodged by my colleague Elaine Murray is significant. It recognises that starting the new process with six months to go before the end of a prisoner’s sentence is a blunt instrument. Instead, as she has proposed, making it proportional is a much more reasonable approach. The amendment would have ensured that there was no uniform approach to offenders. It seems to be bizarre that an offender who is sentenced to four years’ imprisonment would be expected to be placed under supervision for the same length of time as an extremely violent or repeat offender, but that is what the bill proposes.
Scottish Labour’s amendment would have given the courts the power to set the period of supervision, rather than treating every offender the same way. A more nuanced approach would help to ensure that offenders were given a less generic rehabilitation programme, thus minimising the risk of recidivism. It would also allow a more joined-up and flexible approach to individual offenders to be introduced.
The provision in section 2 of the bill to allow 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 people to be a relatively minor change, but according to the Scottish Prison Service around 4,000 prisoners are released every year on Fridays. They emerge into our communities with limited support and go straight into the weekend, a period in which many people run an increased risk of breaking the law. We currently do not do enough to help offenders back into the community once they have served their time, so that modest proposal will at least make some provision to increase the support and guidance that they receive.
However, we must look more closely at the proposals. At the heart of any structure surrounding the release of prisoners must be the calculation of risk to public safety. That is, of course, notoriously difficult to calculate, and it would be wholly unreasonable of us to expect the relevant authorities to successfully calculate the risk of reoffending every time they are called on to do so.
Will Jayne Baxter give way?
No.
We must ensure that each offender’s risk profile is central to the debate about whether they are released early. For those who have committed serious offences, early release should not be automatic.
I agree with Victim Support Scotland and Police Scotland, who indicated that they support the essence of the proposals because they will encourage relevant prisoners to engage with prison rehabilitation programmes to improve their chances of early release, 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 for Penal Reform and other experts who 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.
Elaine Murray’s amendment was eminently sensible. Parliament would have been wise to accept it and ensure that offenders would be dealt with in a way that was more specific to their offending profile. It would have allowed Scotland to adopt a more subtle approach to offending. It was a tremendous opportunity for positive change, so I regret that we have allowed it to pass us by.
We come to the closing speeches. I call Margaret Mitchell.
16:10
Oh, it is me. I thought I heard “followed by”.
If the decision to pass the bill is taken at 4.30 pm, the Parliament will be able to take absolutely no pride in it. It follows on the heels of the corroboration debacle—a mess that the cabinet secretary has been credited with sorting out—but here we are again with the legitimate concerns and criticisms of key stakeholders, who have a wealth of knowledge and experience in the criminal justice system and the treatment of prisoners, being unceremoniously swept aside.
The bill does not end automatic early release. Its stated aims were to reduce reoffending and improve public safety, but it does neither. Its proposals are undermined by evidence and knowledge of practice that the Government has chosen to ignore. A bill that was deeply flawed to begin with has been made worse by the lack of scrutiny and the failure to allow sufficient time to consider the major amendments at stage 2.
To put the unacceptable lack of proper scrutiny in context, the Law Society of Scotland points out that the current law was enacted following two inquiries. The Scottish inquiry, under the chairmanship of Lord Kincraig, a senator of the College of Justice, conducted its deliberations over 14 months. During the same period, the Scottish Prison Service published two consultation documents, so prison reform was the subject of full debate. How ironic it is that devolution should lead to a weakening of the scrutiny, transparency and accountability of Government in Scotland.
The elephant in the room is the bill’s failure to consider short-term sentences, as prisoners who serve such sentences have the highest rates of reoffending. According to the Scottish Government’s 2013-14 figures, 602 individuals received custodial sentences for attempted murder and serious assault. A staggering 82 per cent of them were given sentences of less than four years. However, those offenders will be released automatically halfway through their sentence.
The bill does not provide the clarity and honesty in sentencing that victims and their families want and have the right to expect. The Scottish Conservatives have long called for automatic early release to be abolished for all prisoners, regardless of their crime or the length of their sentence. Based on the evidence that we heard at stage 1 and stage 2, it is impossible to allow the bill to continue its parliamentary progress in good faith.
My amendment would have provided the opportunity to examine the criminal justice system—including short-term sentencing, early release and the associated recidivism rates—in the round and to scrutinise further the other key issues that emerged in evidence to ensure that they were properly debated and scrutinised. The fact that it was rejected marks a low point in the Parliament’s scrutiny process, which is already attracting widespread and justified criticism.
For those reasons, the Scottish Conservatives will not support the bill.
16:14
I cannot find any fault in the idea that we should end automatic early release. Victims, and indeed the general public, deserve some clarity from our legal system. When they hear a sentence of a specific length of time handed down, they expect that the offender will actually serve that length of imprisonment. It causes real trauma, anxiety and anguish when victims find that those who were responsible for the crime are out wandering the streets, back in their community, after a relatively short period. The idea of stopping automatic early release is right. The problem is how we go about it.
In a sense, the cabinet secretary deserves our praise. As Margaret Mitchell suggested, he has tackled a number of things since taking office by changing direction completely from that set out by his predecessor. Frankly, this is another mess that the cabinet secretary inherited from his predecessor, and he has worked hard to try and make improvements, but I do not think that he has sorted out the inconsistencies and inadequacies in the bill.
We have got things back to front. If we were going to consider such a fundamental change to the way in which our legal system operates, we should not have taken this particular manifesto commitment from the SNP and put it into effect; we should have taken the commitment to establish a sentencing council, which was also in its manifesto, and allowed that sentencing council to take an informed view and analysis and to come up with some recommendations that the Parliament could debate and consider. We have got this back to front—we have done it the wrong way about. That is a shame.
Will the member give way?
No, thank you.
Roderick Campbell criticised Elaine Murray, saying that there was no evidence for her amendment. That was echoed by Christine Grahame, who said that the Justice Committee did not take evidence on Elaine Murray’s amendment at stage 2.
Let us consider the comments from the Law Society of Scotland. The Government’s stage 2 amendments brought in one of the most fundamental changes to sentencing that we have seen. The Law Society said:
“We are concerned that such a sweeping amendment was agreed without any collation of supporting evidence or research, and in our view full opportunity was not given for proper scrutiny of the amended section 1 in any significant detail.”
Others, too, expressed concerns about
“the lack of evidence in support for the need to end automatic early release for all long term prisoners.”
That is a separate debate, however.
We cannot criticise Elaine Murray for not providing evidence for her amendment and yet say that we are happy to accept a fundamental change from the Scottish Government without evidence, without consultation and without adequate discussion. Again, we have got it wrong.
As I said earlier, it is imperative to have clarity. As Elaine Murray and others have said, we believe that a prison sentence should mean what it says and that a prisoner should be in prison for at least as long as a judge orders. That is the point that Elaine Murray has been trying to make. We believe that we should give our judges the ability to determine the sentence, and the ability to determine the required supervision that the prisoner will have to undergo at the end of their sentence.
We all accept that reintegration into society after a long period in prison is not straightforward. Indeed, the Law Society makes a valid point:
“In the absence of supervision, we are concerned that offenders may leave prison after many years in secure conditions with no, or at best minimal, opportunity to access properly funded support within the community.”
That is one problem with what the Government is putting forward, because there is no structure or indication of what supervision and support will be provided. Frankly, this is a missed opportunity, which is a shame because the public expect us to do something effective. The Government got it wrong; it went about this the wrong way and Parliament should have taken the opportunity to do things properly, because that is what victims and the public deserve.
16:21
I have listened with interest to the issues and points raised, although some of them were echoes of concerns that were raised at stage 1 of the bill. I said that I would consider a number of issues that were raised during that debate and during the evidence-taking sessions. During this afternoon’s debate I confess that I have become a wee bit more confused about the position of some of the parties.
Margaret Mitchell gave a list of organisations that oppose the bill as it currently stands, a number of which opposed the bill and the ending of automatic early release from the outset. Those organisations do not believe that we should end automatic early release, and some think that people should receive community supervision for 25 per cent of their sentence rather than six months—that point was made by Elaine Murray during consideration in committee at stage 2 of the bill.
It is interesting that a member would choose to use as their argument a list of organisations that includes those that, to some extent, oppose the idea behind the bill. I understand that the Conservative Party wants to end all automatic early release for long-term and short-term prisoners, and that it does not support any form of mandatory community supervision. It therefore accepts that cold release should take place. I find it bizarre when members in this chamber who oppose the bill quote from organisations that have ideas to which they are diametrically opposed. No doubt Margaret Mitchell will want to clarify that matter.
It is true that we want to end all automatic early release. The difference between the minister’s position and ours is that we want to debate the issue properly and ensure that cold release is considered and rehabilitation carried out properly. We want to facilitate the widest debate and scrutiny to get this issue right, but the minister is not prepared to do that.
That might be the member’s view, but it is clear that the Conservative Party is in favour of cold release, irrespective of its implications. The committee heard evidence that cold release is an issue of public safety, and then the member comes to the chamber and says that the bill will undermine public safety. I know that the Conservative Party is in a confused position on this bill, but I cannot help but feel that what I have heard this afternoon has confused that position even further.
The member also made the point, as did Elaine Murray, that the bill does not end any form of automatic early release, but that is incorrect because it does for prisoners who get an extended sentence. There will be no six-month mandatory period for those prisoners. They will have to serve the whole custodial period, and their community supervision provision will be through the extended sentence. It is factually wrong to make that point.
Having introduced automatic early release, the Conservative Party now intends to abstain on the vote to abolish it for prisoners who get an extended sentence. Who are they? They are the ones who the courts think are the greatest risk to the public. It makes no sense for the Conservative Party to come to Parliament to say “We’re gonnae vote against it.”
There also seems to be bizarre confusion among Labour Party members. If I have got this right, Graeme Pearson feels that the bill does not go far enough and that we have to deal with short-term as well as long-term prisoners. He also seeks clarity around what victims should expect.
The problem with the amendment that the Labour Party lodged today is that it would have created more confusion. Under it, at the point of sentencing, the court could say the supervision could be up to 12.5 per cent of the sentence but we do not know—we will have to wait to see what happens later on. The victim would therefore leave the court unaware of the position.
Graeme Pearson rose—
I will just finish my point before I let the member in. The bill will mean that the released prisoner will be supervised for six months. If they need any more than that, the Parole Board for Scotland will make that decision. As I have also outlined, the statistics say clearly that those who get parole are significantly less likely to breach their parole conditions and significantly less likely to be recalled to prison than those who get automatic early release.
Perhaps the Labour Party wants to end automatic early release for all prisoners, but it also wants to allow the period of supervision to be longer, which will create confusion for victims about what that means when the sentence is handed down.
The cabinet secretary will remember that I quoted the academics who indicated that the approach that is suggested in the bill is confusing and does not improve the situation. By indicating that there is confusion among the Opposition, the cabinet secretary is distracting attention from the key issue at the heart of the bill, which is that it does not deliver for the general public on all prisoners who go through our courts.
The member does not think that the Labour Party is confused, so I will give an illustration. Hugh Henry said that the sentence that the judge hands down should be the sentence that the offender has to serve in prison, and that that will give victims clarity. Where does that leave parole? Is parole to be ended altogether? Is there to be no provision for parole?
If the sentence handed down by the court is the time that the offender has to spend in prison, does that mean that the Labour Party’s position is that there should be no community supervision period? There is real confusion at the heart of what the Labour Party thinks. I know that it has the same problem in a number of policy areas and it will have to face those problems in the coming weeks and months.
The bill will mean that the mandatory supervision period will be only six months, unless the person gets supervision under the Parole Board at an earlier stage after halfway through their sentence. That is clear, and it is certainly clearer than the position that the Labour Party proposes.
Will the cabinet secretary give way?
I am sorry, Ms Murray, but the minister is in the final 30 seconds of his speech.
I draw my remarks to a close by again thanking all those who have participated in the consideration of the bill, which will add to public safety and the clarity that people need about sentencing in bringing automatic early release to an end. The bill is a good bill that will improve the way in which sentences are handed down in Scotland. I call on all those members who believe that that is what we should achieve here tonight to support the bill when it comes to the vote.