Meeting of the Parliament [Draft]

Meeting date: Tuesday, February 27, 2024

Official Report 1027KB pdf

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Prison Population

The next item of business is a statement by Angela Constance on Scotland’s prison population. The cabinet secretary will take questions at the end of her statement, so there should be no interventions or interruptions.

14:22  

I updated Parliament in October that the prison population rose by around 9 per cent in 2023. At that time, the population was 7,937; as of yesterday it was 7,959. Although the rate of increase has slowed, the population remains too high. We monitor it on a weekly basis.

As I have said, doing nothing is not an option. This is not just about the number of people in prison—it is about the impacts and complexities, as those can create new pressures that detract from the ability to focus on prisoner progression and care, all of which demand action.

The prison population projections that were published on 13 February highlight the need for a focus on early and effective intervention, diversion and rehabilitative support. To accommodate the increase, our prison service is keeping its population management strategy under review. That includes taking a range of actions to optimise the current prison estate, including the transfer of male prisoners into accommodation that previously housed women at HMP Edinburgh, and the transfer of robustly risk-assessed adult male prisoners to HMP Polmont.

To be clear, the Scottish Government is not changing its position on the use of prison—it will always be necessary for those who pose a risk of harm or threaten the delivery of justice. Protecting victims and the public from harm is my absolute priority.

We all want the same thing—less crime, fewer victims and safer communities—but we must recognise that prison, although it is absolutely necessary in many cases, is often not the best way to reduce recidivism. We know that those who are released from short sentences are reconvicted nearly twice as often as those who are sentenced to a community payback order. In a recent BBC “Disclosure” programme, Sheriff Mackie stated:

“the idea of somebody serving a life sentence 3 months at a time is a real thing … we know that short prison sentences do no good.”

With increased investment of £14 million through the draft budget, we will ensure that the courts can access a wide range of effective and high-quality community interventions. The majority of that additional funding will be used to increase the capacity of justice social work, whose expertise, advice and support are critical to almost every aspect of the criminal justice system. That includes alternatives to remand. Work is on-going to increase the availability of those alternatives, with input and collaboration from key partners.

Significant progress has been made. A total of 1,100 bail supervision cases were commenced in 2022-23, which is the highest number in the past 10 years. The number of people who are currently being electronically monitored is 1,860, of whom 416 are on bail orders. I am keen that justice partners make all available use of that measure, where appropriate.

Alongside partners, we are also making good progress to introduce new electronic monitoring technology and to pilot global positioning system functionality, initially for people who are being released on the home detention curfew—or HDC—scheme. That additional option will further support people who are being managed as they reintegrate into communities. We are also working with the Scottish Prison Service, the Risk Management Authority and justice social work to optimise the use of HDC across the prison estate, where appropriate, to support reintegration and a structured return to the community. HDC is, of course, used in other jurisdictions, including in England and Wales.

As members know, we are working with justice agencies to develop commencement plans within the next year for the reforms in the Bail and Release from Custody (Scotland) Act 2023, which was passed last year. The provisions in that act are intended to refocus the use of remand so that it is reserved for those who pose a risk to victim and public safety and, in certain circumstances, the delivery of justice. The provisions will also improve planning and support for people who are leaving prison.

Let me now turn to our Prison Service. Prison staff are, of course, on the front line, and they deserve our praise and support for the work that they do. A high prison population impacts on those who work and live in our prisons. Increasing investment in the resource budget by 10 per cent to £436.6 million in 2024-25 will enable our Prison Service to safely manage the increasingly complex population, as well as pay progression for staff.

We must also acknowledge the complexities of need in the prison population due to an increasingly ageing population. The Scottish Prison Service is actively considering estate optimisation options, including the possibility of new or adapted accommodation to better meet increasing social care needs. We will work with the Scottish Prison Service to undertake a review of social care in prisons, which will include a full data assessment of the need across the prison estate and the assessment process, and—this is important—developing strategies to support the changing social care needs of the prison estate. That work will include an options analysis of creating bespoke facilities for prisoners who receive social care. I will discuss that tomorrow with the cross-portfolio ministerial group on prison health and social care.

While work is under way to respond to the high prison population, we need to understand and address its root causes if we are to take a long-term, sustainable and evidence-based approach to those who offend. Like England and Wales, Scotland has among the highest uses of custody in western Europe. In 2023, we imprisoned around 132 people per 100,000, compared with 137 in England and Wales, 106 in France, 98 in Spain and 51 in the Netherlands. However, there is nothing intrinsic about our country that means that it should not or could not have a penal policy that leads to it no longer being an outlier.

It is now over 15 years since the Scottish Prisons Commission, which was chaired by Henry McLeish, examined how imprisonment is used in Scotland. Although we have made good progress on many of the commission’s recommendations, a lot has changed since then. We have seen an increase in the reporting of sexual offences; fewer individuals going to prison each year but, on average, serving longer sentences; increased pressure on the High Court; and an ageing prison population with complex care needs that our prisons were not designed to deal with.

There is now a pressing need to consider models of care in prison and the right range of robust community justice alternatives to short-term sentences. The time is right to look again at the sort of justice system that we want to have, and to that end I plan to commence an externally led review of sentencing and penal policy. That will allow us to revisit the fundamental question of how imprisonment is used, and go beyond that to consider how to meet what is surely a shared aim across the chamber: to deal with offending behaviour in an effective and proportionate way, to reduce reoffending through meaningful rehabilitation and to keep our communities safe.

That work is not about reducing the prison population as an end in itself, but about ensuring that custody is used for the right people at the right time rather than as a replacement for taking effective community-based action to tackle public health problems such as addiction and poor mental health. It will not be a simple task, given the complexities in our justice system. The review’s scope and approach will need to be developed with partners and any prospective chair. However, an in-depth review will offer the chance to answer key questions about our approach to offending behaviour and to make recommendations for both short and long-term reform.

I want the review to offer its initial findings for consideration by Government and Parliament during the current parliamentary session. I would welcome members’ views and I will ask justice representatives from all parties to meet and discuss the matter in due course.

The needs of the prison population are increasingly complex. Again, I pay tribute to the Scottish Prison Service and our justice partners. We are working together to take action and we will continue to do so. A serious and significant challenge remains. Although the prison population has not deteriorated further, we need to continue work at pace to prevent the issue from persisting or reoccurring. I will continue to keep Parliament updated.

The cabinet secretary will now take questions on the issues that were raised in her statement. I intend to allow about 20 minutes for questions, after which we will move to the next item of business. I would be grateful if members who wish to put a question could press their request-to-speak buttons now.

I thank the cabinet secretary for advance sight of her statement. It is important to note that each and every prisoner is behind bars due to the outcome of a robust, fair and independent judicial process. I am sure that people share my relief that the statement did not contain a plan to conduct a mass release of the sort that we saw during the pandemic. That would have been a mistake—the release of prisoners en masse and without support would again have resulted in significant reoffending.

Part of the problem is that the Scottish National Party Government has failed to build adequate prison capacity. HMP Glasgow will be delivered years late and will cost at least £400 million. The Government talks about alternatives to custody, but it fails to deliver them. The cabinet secretary spoke about “robust community justice alternatives”. Let us take alcohol monitoring technology as an example. Such equipment precisely detects whether the wearer has consumed alcohol in breach of bail or parole conditions. That smart technology has been used successfully across the rest of the UK, but the SNP is still thinking about it. I would like to see action on that. I would be grateful if the cabinet secretary could explain when that technology will be used to its full potential.

The cabinet secretary said that yet another review is being instructed—I am sure that those words fill most of us with dread. What is the exact purpose of the review and who will be on the group? Crucially, can she give a commitment that the voices of victims will be heard?

I am very pleased that, like me, Mr Findlay wishes to uphold the independence of our courts and judiciary at all times. As he knows, I have no plans for the emergency release of prisoners.

On building more prisons, I will be direct with Parliament: we cannot build our way out of the issue, not least because the capital budget that is available to this Parliament over the next five years will be reduced by 10 per cent. I have been more than happy to discuss the issue with members in and outwith the chamber when they have been advocating for the maintenance of their local SPS establishment or, indeed, for the progress that can and must be made in relation to the replacement of HMP Barlinnie and on the new HMP Highland.

I would be interested to discuss with Mr Findlay his views on alcohol monitoring technology. In the not-too-distant past, I received a briefing on the matter. Technology has a role to play, and I am keen that we push forward with, for example, GPS technology, although that is not the only technological solution.

The review will be what we make of it, which will depend on whether we as a Parliament and a country can come together to ensure that we get in place the right solutions for the short, medium and longer term, rather than constantly revisiting the issues and the problems that are caused by a high prison population. That will require courage and leadership across the political parties.

As for the voice of victims, I say to Mr Findlay that they are always at the heart of everything.

Scottish Labour pays tribute to the SPS and its staff for the very hard job that they do.

Will the cabinet secretary give more detail on the plan to use GPS functionality in relation to community sentencing? Scottish Labour is very interested in talking to the Scottish Government about developments in that regard.

In her statement, the cabinet secretary said that the issue is not just about the number of people in prison but about the impact of that on the ability to focus on prisoner progress. However, there do not appear to be any plans to improve the conditions in which prisoners are serving their sentence, because they are still doubling up in cells and there is a lack of activity. It is hard to see how any of the plans address the acute nature of serious overcrowding.

I also wonder when we will get to see whether the strategy for older people in prisons is a concrete commitment, because I know that it is just a possibility.

Critically, on the question of HMP Barlinnie, there is confusion about the timeline. Will the cabinet secretary be absolutely clear with Parliament what the timeline is for building the new HMP Barlinnie? Is the Government still committed to doing so? Will we see one brick laid this side of this session of Parliament or has the Government dropped any serious commitment to replace HMP Barlinnie? What is the truth?

I very much appreciate Ms McNeill’s tribute to the Scottish Prison Service. The work in our prisons is often unseen, but it should never go unheard, as what happens in our prisons matters. I would certainly never for a minute demur from her points about the impacts of prison condition and overcrowding on progression and reintegration opportunities. As members would expect, I have engaged extensively with the SPS. Individual rehabilitation regimes vary, and the service is working hard to maintain those as much as it can, in as many circumstances as possible. I am pleased to say that the service is doing a really good job in maintaining family contact, which is important for rehabilitation and reintegration.

We have no option other than to replace HMP Barlinnie. As I said in this chamber in the not-too-distant past, once we have the final design, we will be able to give much more clarity on the final costs, which will not be insignificant, and about specific timescales. Plans and designs are progressing, and we have a much better feel for the capacity of, and the model that will operate in, the new prison.

Similarly, we have a lot of work to do with regard to older people, as I outlined in my statement. We have an ageing prison population, just as we have an ageing community—doing nothing is not an option. I will certainly keep the Parliament fully informed.

I am keen to get in all members who have requested to ask a question, so I would be grateful for concise questions and responses.

I thank the cabinet secretary for her update. I note the long-standing and complex challenges that we face in relation to Scotland’s prison population. As the cabinet secretary outlined, the justice sector will see a welcome increase in funding for the next financial year from the draft budget. Will she give more detail on how the increase in funding will assist in addressing and reducing the increase in the prison population that is currently being experienced?

Under the draft budget, a total of £148 million is to be invested in community justice. That means that there will be an additional £14 million, which will be utilised to encourage wider use of robust community-based interventions. The majority of the additional investment will be provided to local authorities for justice social work services.

The additional investment demonstrates our commitment to ensuring that alternatives to custody, including community payback orders, are consistently available. Our work on structured deferred sentences is another example of that commitment. Community-based interventions can help to minimise disruption to families and communities by supporting people to maintain stable relationships, housing and employment. As I intimated in my statement, it is crucial that the right breadth and depth of community disposals are available to our independent courts.

There has been a troubling pattern of releasing dangerous criminals early, alongside a worrying rise in the prison population. Despite that pattern, funding for crucial aspects of under-pressure criminal justice social work has remained static. Meanwhile, organisations that help to keep people out of prison and reduce our prison population face severe budget cuts. We welcome the investment of £14 million, but that is a drop in the ocean. Given that criminal justice social work is already on its knees, is that investment really enough to help those organisations to make a real difference to the rising prison population?

As a former forensic mental health social worker and a former criminal justice social worker, I believe that I am well placed to know what is required. I am sure that members wait to hear whether Ms Dowey and her colleagues have any amendments to the budget to further increase funding for criminal justice social work services. Nonetheless, on a point of consensus, I am glad that she welcomes the additional £14 million of investment.

On the point that Ms Dowey’s colleague Mr Findlay made about respecting the role of our independent courts and judiciary, people are released from prison either when their sentence has expired or when the independent Parole Board for Scotland has made that decision based on a thorough risk assessment. Nevertheless, given the many letters that I have received from colleagues across the chamber, it is important that we now review sentencing and penal policy.

Again, I ask for concise questions and responses.

How are the new community custody units working to improve outcomes for women in custody? Can lessons be learned for the rest of the Prison Service?

In relation to lessons learned, a formal evaluation is under way. I very much hope that we can learn a lot from the innovative trauma-informed facilities at the Bella centre in Dundee and the Lilias centre in Glasgow. Both facilities represent a step change in the rehabilitation of women in custody. The custody units support women to develop key life skills and a degree of independence in order to give them the best possible chance of a successful return to the community after leaving custody.

Although considerable investment was made in the new women’s custody units, we were advised last year that, for most of the time, occupancy rates were less than 50 per cent, with the highest occupancy rate being 52 per cent. Will the cabinet secretary reassure the Parliament that the assessment criteria have been reviewed and that those excellent facilities are now being fully utilised?

Yes, I can assure the member that the assessment criteria have been reviewed and that we are seeing an increase in occupancy in the women’s community custody units—the figure is now at about two thirds. We are also seeing a safe increase in occupancy not only on the women’s estate but at HMP Castle Huntly, which I visited just the other week.

When she last gave a statement on the issue, I asked the cabinet secretary about the increase in social care needs of prisoners, following on from the governor of HMP Glenochil’s calls for bespoke facilities to be considered for that group. I am pleased that today’s statement includes a commitment to review and analyse the situation with the SPS, but what will the review entail? Will it consider international models, where appropriate?

Yes, we will of course consider international models, where appropriate. Again, to be direct with Parliament, I should say that the condition of prisons, particularly the older Victorian estate, presents a significant challenge for the delivery of social care and the engagement of prisoners with mobility issues in everyday prison activity. Cells are often too small to accommodate wheelchairs or hospital beds, and there is no room to retrofit accessible showers or toileting facilities.

According to the annual prison population statistics, which were published in December, there were 451 people in custody over the age of 60, which represents a 130 per cent increase over the past decade. As a result, we will, along with the Scottish Prison Service, push ahead with the work that I have outlined in my statement.

The cabinet secretary is right to say that prison overcrowding puts staff at risk and undermines efforts to rehabilitate prisoners. However, it is clear that the remand population is stubbornly high and that courts lack confidence in the consistency and effectiveness of alternatives to remand. What is the cabinet secretary going to do to build that confidence among our judges?

Mr McArthur is quite correct to be forensically focused on the issue of remand. Perhaps I can quote one statistic at him: as of yesterday, the remand population in the women’s estate sits at 41 per cent. That, indeed, is a clarion call for us to go further and faster.

I will not repeat what I said to colleagues earlier about the utilisation of the additional £40 million, which takes the community justice budget up to £148 million. However, additional work is going on to strengthen alternatives to remand, and that work is taking place with key partners across the justice sector. It is important to say that we are also seeing progress in and around bail supervision cases, but there is more to do to ensure that we have geographical consistency. Some areas are doing better than others in that regard, and we want to support the areas that need more support to achieve more.

Last week, I met local community group Greater Easterhouse Supporting Hands—GESH—and heard about the great work that it is doing with offenders through community payback orders. It gives offenders who have been convicted of lower-level crimes the opportunity to contribute back to society in a positive way, to be supported back into employment where appropriate and to continue in employment by allowing them to deliver community payback at weekends. That model seems to be an effective way of rehabilitating offenders at a much lower cost than incarceration, and it supports local communities and residents by providing the opportunity to use the workforce to deliver local projects.

What scope is there to expand that programme where risk has been appropriately assessed? How can its benefits for society be better communicated to the public?

I am grateful to Mr McKee for highlighting the good work in that area, although I am disappointed that he did not invite me to visit the local project in his constituency.

I put on record my thanks to Greater Easterhouse Supporting Hands for all the work that it is doing, which is similar to some of the work that the Cyrenians are undertaking in Falkirk in supporting community payback orders and enabling people who have employment during the week to meet their obligations at the weekend instead. The work that Mr McKee highlighted also shows the importance of the third sector in that regard and speaks to the cross-Government and cross-society response that we need to galvanise not only for the sake of our criminal justice system, but for the sake of safer communities.

I note the forthcoming externally led review and the cabinet secretary’s acknowledgement that prison is often not the best place for people. Given the risks of violence, drug addiction, suicide and other issues that are associated with incarceration, how will she ensure that the review is not just a tweak around the edges of what some people consider to be a broken system? Will she explore ways to include recommendations in Howard League Scotland’s recent submission on Scotland’s prisons to the United Nations Human Rights Committee?

I am grateful to Ms Chapman for her question. We should always speak directly with one another about the consequences and risks of a high prison population, and she is right to highlight those.

I am serious about this—I am in this for the gains that we can make in the short, the medium and the longer term. That is in the interests of all the communities that we seek to serve.

As I said in my statement, I want to engage with parliamentarians on the terms of reference for the important work of the review. I am also serious about the fact that it is not about tweaking around the edges, and I do not want us to waste time on reinventing the wheel. It is crucial that the work on which we are about to embark builds on what we already know and on the commissions and reviews that have already taken place.

Last month, statistics showed that more than a quarter of community payback orders did not include any unpaid work. Now, the cabinet secretary has said that community justice measures need to be considered to relieve pressure on the prison estate. Will she assure us that such community justice measures will be given only in response to appropriate crimes and that such sentences will include appropriate penalties?

It is important that we recognise, first and foremost, that, if we have the courage to follow the evidence, it will show that there are lower levels of reconviction for community payback orders in comparison with short-term prison sentences. It is also important to acknowledge that the recent publication of community justice statistics showed that the unpaid work element of community payback orders is increasing and is the highest that it has been for a few years.

We should also recognise that an individual who is assessed for a community payback order will have a range of needs that must be addressed if we are to reduce the risk that they present to the community. Therefore, there are 10 conditions that could be put on someone who is subject to a community payback order. Ultimately, it will be a matter for the court whether somebody receives a community payback order as opposed to a custodial sentence. We must increase the confidence of our courts so that they have absolute surety that a community payback order will address the needs of any such individual.

Members across the Parliament should all consider what needs to be done to reduce the prison population and to reach consensus on the issue so that it does not become a political football. Will the cabinet secretary outline further how the review of penal policy might help to achieve that while ensuring that we have policy and measures in our justice system that are fit for the 2020s and beyond?

As I said in my statement, I will write to justice representatives from all parties. I am committed to engaging with all members across the chamber and with stakeholders to develop the scope of the review. We need to proceed in a structured way so that we can achieve tangible improvements.

I made it clear in my statement that I believe that the core aims of the review will be agreed by members across the chamber, regardless of party affiliation, because I believe that we want to work together to deliver safer communities for Scotland. I am committed to doing what I can to grow that cross-party consensus and to support cross-party leadership.

A disproportionate number of women are sent to prison for short sentences, and many of them are victims of trauma. Today, the transgender management policy replaced the interim policy following public outcry about a double rapist being housed in the women’s prison estate. The policy fails to address the grave concerns that were raised by the Criminal Justice Committee and the public on the risks that might be posed for female prisoners and staff. When will an impact analysis be done on the strategy for women in custody? How will the impacts of the new transgender management policy be assessed and reported on?

I want to put on record the fact that Ms Regan took the time to come to the Criminal Justice Committee, although she is not a member of it, when I gave evidence on the issue with the chief executive of the Scottish Prison Service.

It is important to acknowledge that the review that took place more than a year ago that led to the interim procedures being put in place concluded that no woman had been put at risk. The criteria in the new policy make it crystal clear, as did the interim policy, that, should a transgender woman have a history of violence against women and girls, they will be accommodated in the male estate.

First and foremost for me is the protection of women who often have an enhanced vulnerability. The new policy improves admission procedures because it acknowledges that the Scottish Prison Service might, through no fault of its own, be time poor or information poor. In the absence of information, many transgender prisoners will be admitted to the male estate.

Those core protections for women remain. If Ms Regan or any other member wishes to discuss the issue further, I would be more than happy to do so.

That concludes the ministerial statement.