Official Report 855KB pdf
Early Release of Prisoners (Scotland) Regulations 2025 [Draft]
Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2025 (SSI 2025/277)
Good morning, and welcome to the 28th meeting in 2025 of the Criminal Justice Committee. We have received apologies from Katy Clark.
The first item of business is an oral evidence session on two Scottish statutory instruments, one affirmative and one negative: the draft Early Release of Prisoners (Scotland) Regulations 2025 and the Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2025. We are joined by the Cabinet Secretary for Justice and Home Affairs; Fiona Thom, head of parole, release and reintegration at the Scottish Government; Ruth Swanson, from the legal directorate at the Scottish Government; and Teresa Medhurst, chief executive of the Scottish Prison Service.
I refer members to papers 1 and 2 and draw their attention to the additional written submissions of evidence that we received from organisations including Victim Support Scotland and Families Outside, which are included in our meeting papers. I am grateful to all the organisations that responded to the call for views.
I intend to allow up to 30 minutes for this evidence session. I invite the cabinet secretary to make some opening remarks on the SSIs.
Thank you, convener, and good morning to the committee. I welcome the opportunity to attend today’s meeting to discuss the Early Release of Prisoners (Scotland) Regulations 2025 and the Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2025.
The continuing rise in the prison population and its complexity is putting significant pressure on our prisons, impacting the ability of the Scottish Prison Service and its partners to ensure that prisons function effectively and safely and accommodate those who pose the greatest risk of harm. This morning, the prison population stands at 8,404, and, on Tuesday 21 October, the population reached 8,430, which is its highest level ever. The Government has taken a range of measures to reach a sustainable population, including changing the point of release for some short-term prisoners and increasing investment to strengthen alternatives to custody. I have also established an independent review of sentencing and penal policy, to inform future action.
However, given the recent rate of increase and the associated risks, further action must be taken. It is my view that the legal test for emergency relief has been met and it is necessary and proportionate to ensure that the Prison Service can maintain the security and good order of prisons and the health, safety and welfare of prisoners and prison staff. It is not a decision that was taken lightly, but the increasing number of prisoners in custody is now at a level at which the Prison Service’s assessed capacity tolerance has been breached on more than one occasion. A number of establishments are identified as being at red risk, and the SPS is at risk of not being able to comply with statutory duties and legal obligations.
Protecting victims and public safety remain my priority, and I recognise that the early release of prisoners is a cause for concern for victims. That is why, if the regulations are approved, they will have safeguards in place: only short-term prisoners with sentences of less than four years who are within 180 days of release are eligible, and there are strict exemptions for those in prison for sexual or domestic abuse offences and those with non-harassment orders. There are also statutory exclusions; details of those are included in the SSI, and they include prisoners with life sentences, registered sex offenders and those serving a sentence for domestic abuse. There is also a prison governor’s veto if there is immediate risk of harm to identifiable individuals or groups. Should a prisoner pose an immediate risk of harm, they will not be released.
The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2025 have been laid alongside the emergency early release regulations. They seek to amend the prison rules to allow governors to delegate the application of the governor veto to deputy governors. Deputy governors are experienced in risk management and risk-based decision making. They also chair the risk management teams in their establishments. The change is intended to provide resilience in the application of the governor’s veto by allowing governors in charge to delegate it to deputy governors where required—for example, when governors are unavailable. The deputy governor cannot delegate the veto further.
Emergency release is not the answer to addressing the prison population issue in the longer term, but it is essential to provide some critical relief to those who live and work in our prisons. I am grateful for the cross-party engagement that I have had on these important issues so far and I encourage committee members to support today’s regulations and to work with me on our collective goal of a sustainable prison population.
Thank you, cabinet secretary. I have a couple of questions. The first is on some of the learning from previous emergency releases. The second is on the specific issue of orders for lifelong restriction. My first question picks up on a point that Victim Support Scotland made in its submission to the committee. It is seeking clarity on whether prisoners who were released in previous schemes and who subsequently returned to custody would be considered for future emergency release schemes. That is not a point that I had thought about, but I think that it is a valid one. Do you have any comments to make in response to that query?
I am certainly aware of the submissions from Victim Support Scotland and other organisations. I know that the committee will be aware—particularly in the context of learning lessons and developing release planning, for example—that the return-to-custody figure for the short-term prisoner 40 programme, STP40, was 5 per cent in comparison with 13 per cent for the first early emergency release that we did last summer. That is in the context of a reconviction rate of 43 per cent within a year of release from custody. Those figures are encouraging and they are going in the right direction.
I think that where the difficulty would lie—and I will ask for some legal input from officials here, if that is acceptable to you, convener—is that, in terms of decision making on the management or release of prisoners, although previous behaviour informs any risk management or release plan, it is the sentence that somebody is currently serving that is the framework that we are working within. However, there is also the governor’s veto, so there is not a straightforward answer to that. It would be difficult to penalise—that is perhaps the wrong word. You can take past behaviour into account in a risk assessment, but, under the law as it stands, it may well not change someone’s eligibility. Ruth Swanson may want to say a bit more about that.
I do not have anything further to add to what the cabinet secretary has already said. Under the regulations as drafted, there are no specific exclusions for individuals who have been released previously under emergency release. However, as the cabinet secretary has stated, that is all subject to the governor’s veto as well, which will add an additional safeguard to any decisions regarding an individual prisoner’s release.
Thank you for that. My second question touches on orders of lifelong restriction, about which the committee has been in correspondence with you in the past. Indeed, your letter of 2 October indicates that you note that the individuals serving an order of lifelong restriction are excluded from the early release scheme, as you set out earlier. We are aware that, as of April this year, 277 people were serving OLRs, with 224 being past the punishment part but only 14 having been released.
Given recent commentary from the Scottish Human Rights Commission and Lady Poole’s recent judgment highlighting the importance of access to rehabilitation, can you provide a response or some reassurance that all those who are on an OLR continue to present a risk to the public or are assessed as continuing to present a risk to the public and that no individuals are being held back just by virtue of the delays that we are experiencing across the prison estate?
09:45
An order of lifelong restriction is a high-tariff disposal, and we need to be clear about that. It is a decision made by our independent courts in each individual circumstance. The same is true of life-sentence prisoners. You are not guaranteed to be released just because you have reached the end of the punishment part of your sentence. That is subject to a risk assessment, and people have to demonstrate that they are ready for release.
However, there is a more general point to make that goes beyond OLR prisoners and which is an issue for all prisoners, particularly those who are subject to OLRs and the parole system. If our prisons are so congested, the work becomes very transactional: it becomes about locking and unlocking and getting people fed, to the toilet and to necessary appointments. When the system is overpopulated, the capacity for relationship work is reduced, which has an impact on rehabilitative opportunities. That is why I have made the point on a number of occasions that, if we are making different decisions about some short-term prisoners and preventing people from coming into prison, either through good primary prevention work or alternatives to custody, we free up capacity for the in-depth rehabilitation work that will be required in many circumstances where people pose the greatest risk, if they are ever to be able to return to the community.
I am conscious of the time, so I will open up questions to committee members.
Cabinet secretary, in your opening remarks, you talked about the continuing rise in, and complexity of, the population. That is acknowledged, but that was all entirely predictable and has been known about for years—for example, as this place has been legislating. The measures to address this that you spoke about in your opening remarks clearly are not working to prevent overcrowding. In fact, in the submission that we heard about earlier, Victim Support Scotland said that the early release schemes
“are not effective in reducing the prison population in the medium or longer term.”
Therefore, how can the public be assured that, having previously endured the early release scheme and facing the release of a further 1,000 prisoners between now and, I think, April, we will not simply find ourselves in this situation again post-April?
The issue for us all as parliamentarians is that, if we do not want to find ourselves constantly facing the necessity to make decisions that provide short-term relief, we have to step up to the debate and to the challenge of being prepared to discuss, engage with and work through the longer-term reforms that are needed.
It is fair to say that, for a very long time, along with the rest of the United Kingdom, Scotland has been an outlier in the sense of having a very high prison population per capita, compared with other jurisdictions. I would dispute that it has all been predictable, because there have been changes in recent times. You touched on the complexity, which certainly seems to have increased post-Covid. The remand population is higher than it was pre-Covid. Therefore, some changes were not predictable, and, with regard to the rate of increase, although we have had many periods of a high prison population, it has been stabilised at quite a high level; I am on the record as saying that it is too high. With regard to the recent rate of increase, we have seen the population shooting up by more than 250 in short weeks or short months; we experienced that at some point last year.
We are improving our understanding of the demand that is coming our way. Much work has been done by the criminal justice board. People can gather lots of data, but what we require is data that supports the justice system as a whole.
I reiterate my point that I have never described emergency early release as anything other than providing short-term relief. I have always been entirely candid about that. I have always been candid about the impact of any intervention that has been proposed. There have been several interventions, not all of which were unanimously approved by people around this table. The fact that there is not just one contributory factor—one issue or one problem that drives up our prison population—means that there must be more than one solution. The Government has always been frank, and whether it was home detention curfew regulations, which come in next month, regulations in relation to foreign nationals, regulations around GPS, the investment in community justice, or the work that is being done to increase capacity in our prisons, we have not presented anything in isolation as getting any of us off the hook with regard to the longer-term and more radical reform that is needed.
That begs a further question: given that we are in this early release situation for short-term relief and that there have been previous early releases, what other solutions to provide short-term relief were considered in this situation that were perhaps different from last time?
Other options were considered. Before I advise the committee of those, I will say that one of the factors that are different with this early release programme is that it is longer and that it will operate for the full duration that we are allowed to operate it for, within the confines of the legislation. The previous early release programme had a shorter duration and released around 477 prisoners.
On the other options that were considered, we looked at the contemplation and consideration that was being given south of the border to, yet again, changing the point of automatic early release for short-term prisoners. You will remember, from when we carried out the STP40 programme, that the advantage is that it reduces the population by around 5 per cent of what it would otherwise be. However, I discounted the option of another change to the point of automatic early release for some short-term prisoners because it was too soon. We had just done STP40 and we had just changed the regulations for home detention curfew to align with STP40. We have a commitment to evaluate STP40, so it was just too soon.
The other option that was considered was to change the definition of what is a “short-term” prisoner and what is a “long-term” prisoner, but I also discounted that option. Currently, short-term prisoners are those who serve less than four years. In theory, that definition could be changed to somebody who serves less than five years. I discounted that option, in part because the definition of “short-term” and “long-term” prisoners is not always a helpful one—it is quite blunt. There is a difference between people who are sentenced to less than a year—there are still several hundred sentences of less than a year, despite the presumption against short-term sentences—and people who serve, say, three or four years. There is another difference with people who serve four to six years. Those are two examples of options that I considered but dismissed.
Following on from the point that you have just made, my final question is about long-term prisoners. Yesterday in the chamber, members asked about long-term prisoners, and I was not entirely clear about the response, so I will put the question to you again. You have not ruled out the early release of long-term prisoners—although, for clarity, I understand that that is not being considered as part of the Early Release of Prisoners (Scotland) Regulations 2025. How likely is it that the early release of long-term prisoners will happen? Given the greater danger that, logically, that step would pose to the public and to victims, what enhanced victim notification are you considering were such a move to happen? What analysis is the Government doing of any greater public risk posed by such a move?
It is fair to raise that point, because I ran out of time in the chamber and did not address it fully, if at all. If you recall, we consulted on long-term prisoners. I am trying to remember whether that was last summer or the summer before—[Interruption.] It was in 2024. We consulted because we wanted to consider the issue and seek views from victim support organisations and from those who work in the field.
You will be well aware that long-term prisoners are subject to the parole process, so there is a complexity to any change to their release arrangements. As someone who used to work with long-term prisoners and write parole reports, I am more than aware of the risk profile that is associated with long-term prisoners.
There is a question—and it is a question on which I have an open mind—whether, if the prison population were to be reduced further and there were fewer short-term prisoners, thus enabling more rehabilitative work to be done with long-term prisoners, we would have the balance right for long-term prisoners who have determinate sentences, by which I mean those people who are returning to our community at some point. Is there a question in there about better progression and better step-down facilities, and about the balance of how much of their sentence they spend in custody and how much they spend under strict licence conditions—perhaps even electronic monitoring—and under the threat of recall?
There are concerns about prisoners who do not qualify for parole and are released automatically six months before the end of their sentence. They could have served several years. Does that serve the public well, in terms of testing, managing and preparing for release people who are eventually going to return to our communities? That is an argument on which we should have an open mind, at least.
10:00The consultation definitely showed us that, because of the risk profile, any change to how long-term prisoners are managed cannot be made in the short term. It is not something to be done as an emergency measure. It needs to be consulted on and planned for, and additional investment would need to be made in community justice social work, for example. The increase in the number of those in the long-term population—that part of the population who require statutory social work input—means that community justice social work is facing considerable demand, given the statutory work that it has to do for the Parole Board for Scotland and so on. It therefore cannot be an emergency measure.
We will have to wait and see what the sentencing and penal policy commission comes back with. I am merely saying that I am aware of the potential benefits, but I am also aware of the risks and the investment that would need to be coupled with any change to how long-term prisoners are managed.
The short answer is that I have an open mind. I know what I am in favour of: community justice, home detention curfews and expanded use of electronic monitoring for those who are on community disposals and, indeed, those who are leaving prison. I am also very much in favour of making best use of the estate, and we have increased its capacity. I want to replace old and crumbling buildings and ensure that HMP Highland and HMP Glasgow are delivered.
Beyond the prisons that we are committed to building and beyond modernising the estate, I am not in favour of building our way out of this, because if we build, they will come. We already have a prison population of 8,400, and the challenge is to get to a more sustainable population, because that is in the interests of public safety.
I am conscious of the time, but a number of members are still waiting to come in. In the interests of having robust questioning, I propose to let the session overrun slightly, but I ask for succinct responses.
Cabinet secretary, you have spoken about the impact of the current situation—you described a transactional relationship between staff and those who are being held in our prison estate.
I was struck by a pretty stark comment in the policy note on the impact of the current situation on
“SPS’ ability to provide a safe environment for those living and working in Scottish prisons.”
The note then goes on to talk about
“a decline in the acceptable working conditions for staff within prisons.”
Can you say a bit more about the impact of the current situation on staff safety and how the regulations might alleviate concerns?
We will alleviate the extremely difficult working conditions by reducing the prison population. I am acutely aware of the challenges that our prison officers and other partners, such as social work staff and the national health service nursing staff who also work in prisons, face. They need to be supported and enabled to do the job that they wish to do.
People join the Prison Service because they are focused on public safety and the protection of the public, but they are also invested in the rehabilitation of offenders, where that is appropriate and possible. As well as the safety of prisoners, we have to take the working conditions and safety of staff very seriously. I am very aware of the work and the views of the Prison Officers Association as well as those of the Prison Governors Association.
I am trying to be brief, convener, but would you like to hear anything about staff conditions from Ms Medhurst?
Yes.
Every day in prisons just now, staff are being redeployed from jobs that they have been selected to do, especially those connected with employability and rehabilitation, and moved into jobs and roles that ensure that people are getting access to fresh air and exercise and are being provided with meals. That is happening because the conditions in prison are such that many people have been displaced and we do not have enough specialised cells for them, which, as the cabinet secretary said, puts increased pressure on staff just to get through the transactional work.
Because of that increased pressure, we are seeing rising staff absences and have recently seen a particularly concerning increase in the number of assaults on staff. A lot of that—although not all of it—comes from frustration because people are not getting time out of their cells and access to rehabilitation and support services, and because they are being taken away from their home establishments and moved to other places as we try to even out pressures across the prison estate. Those decisions are being taken every day and those are the conditions that our staff are working in. That is why we need to see the pressure alleviated.
Therefore, staff safety is central to the thinking behind those decisions.
I have a couple of other quick questions. Victim Support Scotland has responded to both of the instruments that we are considering. On the victim notification scheme, Victim Support Scotland expresses a view that the rate of subscription to that scheme is still quite low. It would be useful to know what is being done to promote the scheme and to ensure that victims are aware of it. Victims cannot be compelled to take part, but they should be aware of their right to be part of it.
That is a fair comment. I would certainly like to see more people being proactively involved and included in the victim notification scheme, and we are working with partners to improve awareness. I acknowledge the relatively low take-up rate for the victim notification scheme, but people do not need to register for the scheme in order to get information about the perpetrator in their case, because they can contact the Scottish Prison Service directly or can receive information via a victim support organisation.
We have the Victims, Witnesses, and Justice Reform (Scotland) Bill and other work that is in train, particularly through the victims task force, so there is a body of work going on to improve the victim notification scheme. That work should be considered because it is germane to any developments regarding long-term prisoners—indeed, it is important even if there are no developments in the management of those prisoners. There is a body of work to show that we are committed to improving the victim notification scheme. However, there are other routes that allow people to get the information that they need when it comes to emergency early release.
I have a final and straightforward question that is based on the Victim Support Scotland response to the Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2025. On the basis of what you have already said, cabinet secretary, I think that your answer will be a yes, but I would like to get that on record. VSS is seeking an assurance that any deputy governor with delegated powers would, when making a determination, have access to the same information that a governor would see.
Absolutely. It is deputy governors who chair their establishment’s risk management committees, and they would have access to absolutely the same information from the police, social work and other sources.
Ms Medhurst, do you wish to add anything?
That information is provided to them. Based on lessons that we have previously learned and on feedback from governors, we are centralising the process this time to make it more streamlined, to pull the information together and to take off some of the pressure. That information is provided to governors and/or their deputies.
Thank you.
Good morning. I thank the cabinet secretary and Teresa Medhurst for sharing their insights into why we are facing this crisis in the Scottish Prison Service. They have always been frank and open with the Opposition parties, and I appreciate that.
I would like to understand the detail of what all of this means in relation to short-term prisoners. It is quite hard to follow, but am I correct in saying that the Bail and Release from Custody (Scotland) Act 2023 changes the early release point to 40 per cent of a sentence having been served? Where does that provision come in?
The legislation that changed the point of automatic early release for some short-term prisoners is not the Bail and Release from Custody (Scotland) Act 2023. The bill relating to short-term prisoners is the Prisoners (Early Release) (Scotland) Bill, which was passed earlier this year. As was done south of the border, for some short-term prisoners—not those who are serving sentences for domestic abuse or sexual offences; there were some other exclusions as well—we changed the automatic early release point from 50 per cent of time served to 40 per cent.
Thanks. Further to that, there has also been a change to the point in a sentence at which a prisoner could be eligible for home detention curfew. It was 25 per cent into the sentence, and now it is 15 per cent into the sentence.
You may recall the home detention curfew regulations that we took through committee. They were aligned with the previous arrangements for short-term prisoners, and we wanted to align them to the short-term prisoner 40 programme.
Before we get to the powers that we are considering today, there is already a potential shortening of the time served in jail under those provisions, for some prisoners.
Yes. I might ask Ruth Swanson to explain this, because I always make a wee bit of a dog’s dinner of it. Although eligibility for some prisoners kicks in at 15 per cent—and there are exclusions around who is eligible for home detention curfew as well—because of the other requirements and the assessment process, people will actually be further into their sentence. Do you want to explain a wee bit about that, Ruth?
There is no entitlement to release under home detention curfew. An individual prisoner can be eligible from the 15 per cent point of their sentence, but, as the cabinet secretary highlighted, there are a number of exclusions to eligibility for release under home detention curfew. Someone has to serve a minimum period of, I think, three months, and there are a range of statutory exclusions for certain offences.
It is also all subject to a risk assessment, which is an individualised assessment of a prisoner’s eligibility for release under home detention curfew. That is different from automatic release, which you discussed earlier, where certain short-term prisoners are automatically released after serving 40 per cent of their sentence. The position is quite different.
With home detention curfew, as well as being risk assessed, everybody is tagged. There are conditions of release and curfew.
It is quite important for us to get our heads around where we are, because the situation is complex. I understand that. I found that information helpful, thank you.
Cabinet secretary, I asked you about this in the chamber yesterday. I know that there is more than one reason for the rise in the prison population. The committee also had a discussion about that with Teresa Medhurst. However, if I understood what you said yesterday—and you are not the first person to say this—it appears that there has been a rise in the number of longer sentences that the courts are handing out, for whatever reason. Is that the case?
Do you agree that it is quite important for somebody, whether it be a committee or a Government department, to understand why that might be? You said that the rise could not have been predicted, but if there are to be changes in trends in sentencing and in how long we hold prisoners for, maybe it is an important thing to understand.
10:15
The answer to your question, Ms McNeill, is that across the board people are, on average, receiving longer sentences. The average increase in sentence length is 31 per cent.
You might not be able to answer this, but does that indicate that more serious crimes are being committed, or is it not possible to tell? Or is it that the courts are taking a harder view on sentencing—which they are entitled to do, as the judiciary is independent?
To some degree, it is difficult for me to speculate, but a range of information is certainly available, including from the Scottish Sentencing Council, to show that all prison groups are, on average, serving longer sentences. It is an across-the-board sentencing issue; inflation is how I would describe it.
It is also due to the nature of offences. Prosecutors and the Crown are now more successful in pursuing historical sexual offences and more people have the confidence to come forward about such offences.
In addition, the profile of prisoners is changing in that there are more long-term prisoners and more sex offenders.
I heard an interview with a defence lawyer who said that some of their clients who are serving time in prison and who might be released are not ready for that. They would rather be in prison so that they can access services, including rehabilitation or whatever else they think they need. Has that happened? I do not know whether Teresa Medhurst could answer that. Do you come across prisoners who do not think that they are ready to go out into the community? Is there provision to consider that?
Not within the scope of these regulations. That description probably does not apply so much to prisoners who are serving short sentences; it is more apt for those who are serving longer sentences.
Someone who might have spent 10 years in a closed environment where everything is regulated and provided for them, and who is looking at release, can become extremely anxious and concerned. That is why, earlier, the cabinet secretary alluded to having a discussion about what a long-term sentence should look like in terms of the custodial environment as well as the individual’s return to the community.
We come across individuals who, unfortunately, deliberately set out to take part in activities that will ensure that they are not liberated because they have heightened concerns about what is waiting for them outside.
I have a follow-up question to Pauline McNeill’s earlier line of questioning. It is about the changing demographics in prison. I have brought that up before, both in committee and in the chamber.
An older prison population has significant health and social care needs. Some governors—most recently, the governor of Glenochil—have publicly expressed concerns about whether typical prisons are suitable for those prisoners, and best placed to house them, or whether more of a healthcare setting is required. By that, I mean healthcare in a prison context, because obviously there are different risks. Has any further work been done on that or has there been any consideration or assessment by the Government, in conjunction with the Scottish Prison Service, about how making changes in that area might impact the prison population beneficially and perhaps relieve some of the pressure that we are experiencing?
I will try to be brief, because I might be at risk of repeating what I have said to the Parliament and to the committee previously. We are scoping out work on different models of care for the older prison population. The notion of a combined hospital, prison and secure care home would involve a substantial capital investment. Nonetheless, we are looking at a range of options.
Those are not quick options, but, in the meantime, the prison healthcare group, which I chair and which is attended by all health ministers, is seeking to ensure that there is better cross-Government and cross-service working to support older people in custody and, in particular, to support the Prison Service with the task that it faces.
It is also important to highlight that the new HMP Glasgow will be built in such a way that it will have smaller, more community-type units within the much larger establishment. As part of the design, it will have improved healthcare facilities.
Ms Medhurst might wish to add to that.
We are experts in criminogenic need, not social care need, so I welcome the cross-Government support that we receive in relation to what is an increasing—and very problematic, in that we do not have expertise in that area—part of our population. We are reliant on partners and others. I welcome the exploration of different models of care and what those could look like, because a different model would alleviate many of the pressures that staff are facing.
To be honest, in a custodial environment, high-security facilities are not required for the individuals we are referring to. An alternative model of provision could better provide the care that they need, as well as supporting a focus on their criminogenic needs.
That is really positive. Thank you.
Emergency release—in particular, the release process that we are discussing today—places significant additional pressures on local services. Cabinet secretary, in your opening statement, you alluded to the additional pressures that it places on local authorities, health services and the third sector. Obviously, they will be familiar with previous emergency release processes. However, are you able to reassure us that local services will be supported to manage the next lot of releases, should the proposed provisions be agreed to today? If those services require additional resource or assistance, will that be forthcoming?
We are continuing to engage with partners on all of that. It is important to stress that the phasing of the tranches of release is important in managing that pressure on the community. No additional financial resource was provided when we undertook the emergency early release programme last summer. Nonetheless, there are weekly planning meetings, because it is absolutely imperative for our local partners, and for individuals who are being released, that such planning is done. At the start of this journey, I met representatives of the Convention of Scottish Local Authorities and others, and we will continue to have close engagement.
Our next item of business is consideration of the motion to approve the affirmative SSI on which we have just taken oral evidence. I invite the cabinet secretary to move motion S6M-19222, which is in her name, and to make any brief additional comments that she wishes to make.
I refer members to my opening statement.
I move,
That the Criminal Justice Committee recommends that the Early Release of Prisoners (Scotland) Regulations 2025 [draft] be approved.
Thank you, cabinet secretary, for taking part in this morning’s evidence session. I will oppose the draft SSI, and I believe that the committee should vote against the motion.
I will set out my reasons for taking that position. It is clear that Victim Support Scotland is right in saying that the measure is no solution. We will be in this situation next April, following the release of a further 1,000 prisoners. The knee-jerk response has now become the default response, and I can see no real progress since the previous early releases to prevent that repeatedly happening.
I note that the cabinet secretary did not expressly rule out long-term prisoner release. Her comments were helpful but she did not rule it out. The argument around a knee-jerk release of short-term prisoners becoming the default response, without ruling out long-term prisoners, suggests that the measure could be the thin end of the wedge. I do not see enough evidence of other options being considered.
I noted the remarks made the other day, when the SPS said that a new prison the size of HMP Grampian or HMP Shotts is required to relieve the overcrowding, but the cabinet secretary suggested that there will not be any further new builds because, to use her words, if we build it, they will come. With respect, I do not find that to be a coherent argument, given that, for example, His Majesty’s Inspectorate of Prisons for Scotland suggests that early release does not
“address any of the root causes”
of the problems. It is not the building of prisons that raises or lowers the prison population; it is other issues in the justice system.
Will Liam Kerr take an intervention?
I shall.
To be clear, does Liam Kerr recognise that this is an emergency situation? Is he saying that we should build our way out of the situation by building more prisons?
There is clearly an emergency, but, as I said in my remarks earlier, the situation was not unforeseeable. It has been entirely foreseeable over many years. As I have just said, there is simply no evidence that the Government has taken the steps that are required to prevent an emergency happening. I am certainly not saying that the solution is to relentlessly build our way out of the problems; the solution to the prison population is to examine the justice system holistically and to consider how to address the prison population. That has not been done.
The cabinet secretary’s remark—if we build it, they will come—is simply not coherent, because it is not the availability of prison space that impacts the size of the prison population; it is the wider context of the justice system.
Yesterday, I put a point to the cabinet secretary about the new buildings—HMP Glasgow and HMP Highland—and the cabinet secretary said to me that another reason why there would be no new building was the cost. The Glasgow and Highland projects are massively delayed and are subject to massive cost overruns, and it surely cannot be correct to found on the Government’s inability to deliver infrastructure on time and on budget as a way to avoid dealing with overcrowding.
10:30
Will Mr Kerr give way? Am I allowed to intervene?
Yes, of course.
Thanks. I am listening very carefully to Mr Kerr, as always. It is important that we critique the past as well as debating the future. However, what does Mr Kerr propose that we do right now instead of early emergency release, bearing in mind the fact that time-limited relief is required right now? What does he suggest that we do? Is he seriously suggesting that we do nothing and ignore the advice from the Scottish Prison Service, HMIPS, the Prison Governors Association and the POA? We all want longer-term action, but action is required right now. Are you seriously proposing that we do nothing?
On the contrary. With respect, cabinet secretary, the problem is that the Government has done nothing, because this is not a new situation. As I said to Rona Mackay, this has been in train for so long that there have been previous early release programmes. Were I in Government, I would have immediately accelerated. I would not have allowed the cost overruns and the time overruns on HMP Glasgow and HMP Highland to go ahead. For example, one of the other things—
Will you give way again?
No. With respect, cabinet secretary, let me answer the question. HMP Kilmarnock was taken back into the public sector. By all means, cabinet secretary, correct me if I am wrong, but my understanding is that part of Serco’s offer was to open a new wing as part of HMP Kilmarnock, thus increasing capacity and potentially solving the overcrowding issue. The fact that HMP Kilmarnock was taken back into the public sector for what some might suggest are ideological reasons might have ruined that possibility.
Cabinet secretary, this is an ill-thought-through and risky response to a situation that we knew and have known for a long time would occur. I will not be voting for it, and I do not think that the committee should, either.
I support the regulations, and I think that the committee should support them because the circumstances that have been set out require us to act.
It is interesting that the deputy convener conceded at the outset that we are in an emergency situation, and an emergency situation compels us to respond urgently. I am afraid to say that the deputy convener’s response to the cabinet secretary did not indicate what would otherwise constitute an urgent and emergency response. It would be very easy to pass on by and abdicate any responsibility for trying to find a solution. With respect, I would say that that would be a knee-jerk response. It is clear that the regulations have not been proposed lightly. People will be watching.
It is important to remind ourselves that there are clear restrictions on the cohort of prisoners that will be eligible for early release—that is set out very clearly. Life prisoners will not be eligible. Untried prisoners will not be eligible. Terrorist prisoners will not be eligible. Those who are subject to proceedings under the Extradition Act 2003 will not be eligible. Those who are subject to notification requirements under the Sexual Offences Act 2003 will not be eligible. Those who are serving a sentence of imprisonment or detention for an offence that is aggravated as described in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 are not eligible. There are others—I could go on.
That is not to dismiss the reasons why those who will be eligible have been imprisoned. I recognise that the courts have made that assessment and determination, and I do not dismiss that lightly, but we must remind ourselves that there are prisoners who will not be eligible.
The governor’s veto will also be extended to deputy governors. They can make a further assessment, and those who might otherwise be eligible could be vetoed.
The most compelling reason that I have heard thus far is the impact on the prison environment and on being able to undertake the rehabilitation of prisoners, which I know is sometimes dismissed as not important. As far as I am concerned, it is an essential part of the work that is undertaken in prisons, because, if it is done properly, it creates a safer society. However, for no other reason than that we have heard that overcrowding has an impact on the safety of those who work in the prison environment, we should support the regulations today.
I start by saying that I do not find this at all easy. I can see that there is an emergency. I heard Phil Fairlie from the Prison Officers Association on the radio this morning and I know that the situation is horrendous. For that reason, the regulations must be carefully considered, but I am going to oppose the SSI and will set out the balance of my reasoning.
The issue is not straightforward, and there will be consequences whichever way we vote. We want to release the pressure on our prisons, but this is the third time that we have been in this situation, and my main concern is that I do not want to endorse an approach of managing prisoners in that way.
The situation is already complex, and I appreciated the exchange with the cabinet secretary as I tried to understand the current sentencing policy in Scottish prisons. I dearly wish that the committee had been given time to do its job, because I agree with the point about the long term. The convener knows that I feel that this committee should be able to examine some bigger issues during the final six months of this parliamentary session because that is our job. The Sentencing Council has its job, and I will say something about that, but we have a job and do not have the time to do it, for reasons that I will not go into.
I am not convinced that the Sentencing Council is doing the job that it was set up for. That is my initial take on that, because I think that there should be clearer answers to the changing trends. You cannot take a period of 18 or 20 years and say that we could not have predicted this situation. Things do not stay the same, that is for sure: the prison population might become older, and the courts are independent and we do not know what they will do. I appreciate all that, but I think that the Sentencing Council should be more up front and should have more of an exchange with us, as elected members, about how it will deal with this in the longer term. I agree with the cabinet secretary on that.
I have to be constantly reminded that we changed the approach to long-term prisoners, who are not eligible for release on parole until six months before the end of their sentence. That shows how complex sentencing has become, for many reasons. The committee should have a legacy discussion about that.
The convener asked about lessons learned. I am sure that lessons have been learned and are learned every time that we have to go through this process. Communication with victims is not easy.
I know that we are running out of time for discussion, but I will mention that Families Outside appealed to the committee to recognise the importance of families. I know that the cabinet secretary is fully aware that families make a huge difference to reoffending rates, and that organisation has pleaded for better communication.
The decision is a very difficult one—I am not going to pretend otherwise—but I thought that I should contribute to the debate and explain my decision.
Notwithstanding the arguments that we have heard, I think that we all agree on the bigger, long-term picture. The core reason for the SSI being laid is that we are in an emergency situation. I cannot understand why committee members would not understand that an emergency situation requires immediate action. I will support the SSI.
I agree with the comments that many other committee members have made, but it concerns me that we are talking about an emergency, when an emergency is something that cannot be foreseen. My concern is that this now feels like business as usual because this is the third emergency release of prisoners. Mr MacGregor said that we know that we have an ageing prison population; Wendy Sinclair-Gieben highlighted that in a report a few years ago and asked what we were doing about that ageing population to take pressure off the Prison Service. I do not see that we have taken much action on that.
Again, the people who are in prison are there for a reason—they might have caused mayhem in their communities. I realise that we must protect prison officers, but we are going to move this cohort of people from prison back into communities where they will cause mayhem for police officers who are already struggling to deal with the amount of cases that they have. They just feel that no action is being taken on this.
I do not think that this is an emergency situation. It feels more like business as usual, and I would like to see more on diversion from prosecution. I just feel that we will be back here again.
I think that everybody has commented, so thank you very much, indeed. I invite the cabinet secretary to wind up and to indicate whether she wishes to press or withdraw the motion.
I will be very brief, convener.
I want to reassure members that this is not business as usual; this is an emergency situation, because of the risk to the health, wellbeing and safety of both staff and prisoners. Doing nothing is not an option. Our hard-working prison staff and their partners need to know that we have their back and that help is coming.
I understand very well the concerns that have been expressed here today, but I remind people that with those who were released in the first emergency release—this is the second time that we have done early emergency release—the change to the management of some short-term prisoners was set out in primary legislation. It was not some knee-jerk emergency reaction.
As I have said, this is the second time that we have done emergency release. When it was done last summer, two thirds of those who were released were within three months of their liberation date. These folks are due to return to their own communities in the very near future.
I make the plea to the committee that doing nothing right now is not an option and, in my view, would be a complete abdication of our duty. I therefore press the motion.
The question is, that motion S6M-19222 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
Dowey, Sharon (South Scotland) (Con)
Kerr, Liam (North East Scotland) (Con)
McNeill, Pauline (Glasgow) (Lab)
The result of the division is: For 4, Against 3, Abstentions 0.
Motion agreed to,
That the Criminal Justice Committee recommends that the Early Release of Prisoners (Scotland) Regulations 2025 [draft] be approved.
Are members content to delegate responsibility to me and the clerks to approve a short factual report to the Parliament on the affirmative instrument?
Members indicated agreement.
The report will be published shortly.
I now turn to the Prisons and Young Offenders Institution (Scotland) Amendment Rules 2025. If members have no comments to make on the instrument, are they content for it to come into force?
Members indicated agreement.
We will now have a short suspension in order to change over witnesses.
10:44 Meeting suspended.First-tier Tribunal for Scotland General Regulatory Chamber (Police Appeals) (Procedure) Regulations 2025 [Draft]
First-tier Tribunal for Scotland (Transfer of Functions and Members of the Police Appeals Tribunal) Regulations 2025 [Draft]
First-tier Tribunal for Scotland General Regulatory Chamber Police Appeals and Upper Tribunal for Scotland (Composition) Regulations 2025 [Draft]
Our next item of business today is an oral evidence-taking session on three affirmative instruments. I remind members of my entry in the register of members’ interests—I am a former police officer.
We are joined again by the Cabinet Secretary for Justice and Home Affairs. I also welcome to the meeting Alasdair Thomson, senior policy officer on tribunals, and Emma Thomson, solicitor in the legal directorate, from the Scottish Government.
I refer members to paper 3. I intend to allow about five minutes for this evidence session. I invite the cabinet secretary to make some opening remarks on the Scottish statutory instruments.
This suite of regulations will transfer the functions and members of the existing police appeals tribunal into the Scottish tribunal structure. The Scottish tribunal structure was created by the Tribunals (Scotland) Act 2014, which introduced a new and simplified statutory framework for tribunals in Scotland. The Scottish tribunals consist of the First-tier Tribunal for Scotland and the Upper Tribunal.
The Police and Fire Reform (Scotland) Act 2012 gives police constables the right to
“appeal to a police appeals tribunal against any decision to dismiss ... or to demote the constable in rank”.
At present, police appeals tribunals are administered by the Scottish Police Authority, and the appeals are heard and decided by three members who are drawn from a list of independent, legally qualified members, which is maintained by the Lord President. It is proposed that, upon transfer, police appeals cases will be heard in the general regulatory chamber of the First-tier Tribunal for Scotland.
The first instrument before the committee is the draft First-tier Tribunal for Scotland General Regulatory Chamber (Police Appeals) (Procedure) Regulations 2025. The instrument provides for a set of rules regarding practice and procedure to be followed by the First-tier Tribunal when hearing police appeals cases. The procedure rules are based, so far as possible, on the existing rules of procedure for police appeals cases. Opportunity is taken to update some rules; for example, around electronic signing of documents and the electronic sending of documents. To aid consistency across the Scottish tribunals, some rules that apply to all chambers in the Scottish tribunals have been added; for example, the overriding objective to deal with cases “fairly and justly” is included in the updated set of procedure rules.
The Upper Tribunal for Scotland has an existing set of procedure rules, and those are to be used for any police appeals cases that are to be heard in the Upper Tribunal.
The second instrument is the draft First-tier Tribunal for Scotland (Transfer of Functions and Members of the Police Appeals Tribunal) Regulations 2025. If passed, the instrument will transfer the functions of the existing police appeals tribunal to the First-tier Tribunal. The instrument allows for the existing members of the police appeals tribunal to be transferred into the Scottish tribunals as legal members.
The regulations will also make transitional provisions to ensure that any live appeals before the existing tribunal are transferred to the First-tier Tribunal.
The third instrument is the draft First-tier Tribunal for Scotland General Regulatory Chamber Police Appeals and Upper Tribunal for Scotland (Composition) Regulations 2025. If passed, the instrument will make provision for the composition of the First-tier Tribunal and the Upper Tribunal when hearing any police appeals cases.
The existing composition of three legally qualified members is maintained for the First-tier Tribunal. The composition rules for the Upper Tribunal are drafted in such a way as to allow the president of the Scottish tribunals flexibility when determining the composition of the Upper Tribunal. If the instruments are passed, the Scottish tribunals will be able to hear such appeals from 29 December 2025.
The Lord President and the president of the Scottish tribunals were consulted regarding the draft sets of regulations in line with the requirements of the Tribunals (Scotland) Act 2014. Feedback provided was used to further inform the development of the regulations. Public consultation that included those regulations was also conducted and closed on 22 January 2025.
It is the case that the three instruments will enable the Scottish tribunals to hear those appeals. I understand that the Delegated Powers and Law Reform Committee considered the regulations on 30 September and that no points were raised.
Thank you. I invite questions from members.
It might be more appropriate to put this question to Alasdair Thomson, because it is about waiting times and the current structure.
I understand what we are being asked to do. If the function is transferred over, will that change the waiting times for police tribunals?
It should not have any effect on the waiting times. Currently, the appeals are administered by the Scottish Police Authority. Upon transfer, they will be administered by the Scottish Courts and Tribunals Service.
It is important to remember that the police appeals tribunal is a very low-volume jurisdiction. Since 2013, only 22 appeals have made it to the police appeals tribunal, so there is an average of less than two appeals per year. Because it is such a low-volume jurisdiction, we do not have robust data on waiting times. However, the transfer should not affect waiting times for appellants. The procedure rules detail timescales for people to provide responses and for the chief constable to provide a reply to the notice of appeal from the appellant.
Thank you—that was helpful.
I noted that the updated rules will apply in relation to the Upper Tribunal, which the chair will have some flexibility in appointing members to. I presume that it would be expected that people who were appointed to the Upper Tribunal would be familiar with, and have had training in, the police rules specifically.
Because the Upper Tribunal will hear questions only on points of law, members of the Upper Tribunal are even more experienced members of the judiciary—they tend to be sheriffs and senators of the Court of Session—so they will have expertise in public administrative law and in dealing with judicial reviews and so on. Therefore, they will have suitable expertise to deal with the cases.
That is great; thank you.
As no other members have questions, we will move on to our next item of business, which is consideration of the motions to approve the affirmative SSIs on which we have just taken oral evidence. I invite the cabinet secretary to move motions S6M-18945, S6M-18946 and S6M-19179, in the name of Siobhian Brown, and to make any brief additional comments that she wishes to make.
I have nothing further to add.
I move,
That the Criminal Justice Committee recommends that the First-tier Tribunal for Scotland General Regulatory Chamber (Police Appeals) (Procedure) Regulations 2025 [draft] be approved.
That the Criminal Justice Committee recommends that the First-tier Tribunal for Scotland General Regulatory Chamber Police Appeals and Upper Tribunal for Scotland (Composition) Regulations 2025 [draft] be approved.
That the Criminal Justice Committee recommends that the First-tier Tribunal for Scotland (Transfer of Functions and Members of the Police Appeals Tribunal) Regulations 2025 [draft] be approved.
Motions agreed to.
Are members content to delegate to me and the clerks responsibility for approving a short factual report to the Parliament on the affirmative instruments?
Members indicated agreement.
That will be published shortly. We will have another short suspension to allow for a changeover of witnesses.
10:58 Meeting suspended.