Meeting of the Parliament [Draft]

Meeting date: Tuesday, January 31, 2023

Official Report 1122KB pdf

---

Management of Transgender Individuals in Prison Custody

The next item of business is a statement by Keith Brown on an update on the management of transgender individuals in prison custody. The cabinet secretary will take questions at the end of his statement, so there should be no interventions or interruptions.

14:32  

There has been significant attention on the management of transgender prisoners over the course of the past week, and I take this opportunity to update the Parliament on what we have done and what we will do.

Before doing so, I acknowledge the victims in these cases. We should never forget the victims of crime; I am sure that everybody in the chamber agrees on that. In that regard, I was impressed by the comments that were made by our contributor at time for reflection, who said that we should focus on what really matters and recognise the unique worth of each individual.

I am very conscious of the importance of maintaining public confidence in the justice system, and, for that reason, I am keen that discussion around the issue is as calm and founded on fact as possible. The things that we say in the Parliament have an impact on people, and, in the context of the criminal justice system, they are often very vulnerable people. We must not allow the legitimate questions that are being asked to fuel the view that trans women somehow pose an inherent threat to women, when that is not the case. What is important is the crime that they have committed and the risk that they pose to other prisoners, staff and, indeed, themselves.

We have said this before, but I will say it again: we are talking about a very small number of people. Transgender people in the prison estate account for roughly 0.27 per cent of the entire prison population, which equates to around 20 people out of 7,367 prisoners. The number changes regularly but, as of today, we have around 17 trans women prisoners, the majority of whom are kept in the male estate. On Sunday, it was announced by the Scottish Prison Service that it is doing a further deep dive into those circumstances.

By its very nature, the prison population as a whole has a significant number of people of all genders who represent a risk to others. We must recognise and commend the professionalism and great expertise of the prison service in managing those complex, high-profile and challenging individuals who are in its care and in keeping others safe.

The existing SPS process applies equally to the arrangements within which the SPS makes decisions about transgender prisoners. The SPS gender identity and gender reassignment policy was adopted in 2014 in dialogue with relevant stakeholders, including criminal justice and equalities organisations. As a general rule, the policy envisaged individuals being admitted to prisons that accord to their gender identity, subject to an individualised risk assessment. That has not changed recently, nor has it been impacted by the recent Gender Recognition Reform (Scotland) Bill, which was passed by this Parliament. I repeat: that has not changed recently, nor has it been impacted by the recent Gender Recognition Reform (Scotland) Bill, which was passed by this Parliament.

There is no automatic right or policy in Scotland for trans women to serve a sentence in a female prison, nor for a trans man to be in the male estate. The Prison Service retains the ability to place people in a prison that may not correspond to their identified gender, and it makes those decisions on the basis of a rigorous and robust individualised risk assessment and by taking account of all relevant factors, including the safety of the individual, of other prisoners and of staff. No transgender prisoner will be placed in the general population–either male or female–without that risk assessment.

It is the long-standing position of the Scottish Government and the SPS that we do not comment on individual cases. However, that is challenging to sustain when there is substantial public debate and concern about a particular case. With that in mind, and in the context of everything that has already been said about two cases that were reported in the media last week, I make the following points.

At the times when those cases were brought to public attention, the SPS had not taken decisions about the future placement of the individuals concerned; the process of considering those cases was still under way. I offer a reassurance that, during the period of risk assessment of the prisoner who had been convicted of rape and admitted to HMP Cornton Vale, the individual was segregated from the rest of the prison community, in accordance with the Prison Service’s established policy and practice. While that assessment was in progress, a decision was taken by the SPS that the individual should be transferred to the male estate. The SPS was, of course, aware of ministers’ views—it would be, frankly, bizarre if the SPS had not been aware of ministers’ views—but it remained an operational decision for the SPS, based on the available information.

I also make it clear, given that the issue has been raised, that the decision to accommodate that prisoner in HMP Cornton Vale while the risk assessment was done was made without ministerial involvement or awareness and was in line with existing procedures. The other individual identified in the media was in, and remains in, the male estate.

Neither of the cases that have been highlighted arose from any change to Scottish Government legislation or policy or from any change to the risk assessment procedure operated by the SPS in recent years. Each case arose from specific circumstances. We have fully acknowledged the concerns that have been raised in respect of those cases and have responded swiftly. Given the public concern about those cases, it is right that the SPS has acted to bring absolute clarity to the position.

On Sunday, I released a statement confirming measures that will be taken pending the outcomes of two reviews. The first of those is the SPS’s review of its current policy on the management of trans prisoners, which is being undertaken in dialogue with the Scottish Government and other stakeholders. During 2022, a consultation exercise was undertaken with interested parties, including women and other prisoners and staff. The draft revised policy will be independently assessed by experts in women affected by trauma and violence. We expect the review to be completed in the coming months, and we will ensure that Parliament is kept informed, given the strong interest in the issue.

The SPS is also now undertaking an urgent lessons learned review in relation to the case of Isla Bryson, with any learning to be applied immediately to existing cases of transgender people in the prison estate and to any cases of those coming into custody. That review will report to the SPS chief executive at the end of this week, and I will write to update the Criminal Justice Committee next week on the outcome of that review. The timescale for any subsequent action will depend on the review’s findings.

Until those reviews are complete, no transgender person who is already in custody with any history of violence against women, including those with any history of sexual offences against women, will be moved from the male to the female estate. In addition, no newly convicted or remanded transgender prisoner with any history of violence against women will be placed in the female estate. For clarity, that definition includes any history of violence, including sexual offences.

If, following thorough and robust risk assessments and taking account of all relevant factors, it is felt that there are exceptional circumstances in a particular case, the approval of ministers will be sought. That is not dissimilar to the situation that was announced last week in England and Wales. That the Scottish Prison Service will seek ministerial approval for those particular cases will not change the general position that decisions on the management and accommodation of prisoners within the prison estate have been and will continue to be operational matters for the Scottish Prison Service. That is in keeping with the delegated authority under which the Scottish Prison Service operates and it is in line with the public interest in the matter. Those arrangements will allow for exceptional circumstances to be considered and agreed while the reviews are in progress.

It is right that the actions that we have taken will continue to ensure that we respect and protect the rights of trans individuals, wherever they are in society, including in our prisons, and that we continue to consider and protect the safety of all prisoners and staff.

The actions that I have announced and that the SPS is progressing aim to provide immediate assurance in the context of the public concern raised by the two recent cases. The outcome of the reviews that are being progressed will ensure that any immediate lessons are learned from the issues that have been identified by those cases and that the wider review of the Prison Service’s current policy on the management of trans prisoners and the subsequent application of that policy take account of relevant factors including input from experts in women affected by trauma and violence.

Ultimately, it is vital that future decisions about the location and management of prisoners continue to be based on thorough risk assessment, drawing on the expertise and input of relevant professionals, with the priority of ensuring that all individuals who work in our prisons and people who are in the care of our prison staff are kept safe. That has always been and will always be the absolute focus of the Scottish Prison Service.

The cabinet secretary will now take questions on the issues that were raised in his statement. I intend to allow about 20 minutes for questions, after which we will move on to the next item of business.

They say that a week is a long time in politics. Well, only six days ago, I asked Keith Brown about a double rapist in a women’s prison and he stood right there and backed the decision to send this sex offender to Cornton Vale. Less than 24 hours later, Nicola Sturgeon was forced into a humiliating U-turn and the rapist was rightly removed.

What I want to know is this: now that Keith Brown has told us today that ministers had no awareness of this rapist’s move to Cornton Vale, will he explicitly state that none of his officials had prior knowledge? Will he publish a detailed timeline of these critical events, including all correspondence?

First, what I have just said and the further assurance that was provided over the weekend do not in themselves say that any different decisions would be made by the Scottish Prison Service in relation to those two cases than have been made. The changes that have been announced in terms of the public assurance on Sunday do not change the Scottish Prison Service’s procedures.

In relation to further information, I am pretty sure that this is going to be discussed both in the chamber and in this Parliament’s Criminal Justice Committee. I have mentioned already that I am writing to the committee. I have written to the committee today and I will write to it again next week.

In the meantime, I am happy to look at the requests that Russell Findlay has made. As far as possible, I am happy to provide the information, if I can, that he has asked for.

As the cabinet secretary said, we are talking about a small number of people. The current policy was devised in 2014 without the experiences and interests of women being taken into account. Will the cabinet secretary now withdraw the 2014 policy, put a hold on transfers and give an undertaking that there will be full scrutiny of the draft revised policy, including a debate in the chamber?

On the last point that Katy Clark raises, it is not for me to schedule the business of this Parliament. Members are, of course, able to ask for that debate if that is what the Parliament wishes to have.

In relation to the very legitimate point about ensuring that the policy takes account of the interests of women and, in this case, women prisoners in particular, I can say that there has already been that consultation. I think that I confirmed that last week as well. I am also aware of the responses to that consultation—both the concerns that have been raised and other aspects of that response.

If it is possible for me to not breach any confidentiality in providing that information, which is quite granular information about the cases raised, I will certainly do that.

However, I am happy to give Katy Clark an assurance that the scheduled review, which has been impacted by the pandemic, is now at the stage of being considered by legal services—to make sure that it fits into the legal framework—and discussed with the trade unions that are involved. The member may have heard today from the general secretary of the Prison Officers Association Scotland on the issue.

Those are the two remaining parts to that review. They will be carried out and we will bring the review forward in due course. It will then, of course, be open to Parliament, if it wishes, to decide to debate those findings.

Does the cabinet secretary agree with Phil Fairlie, assistant general secretary of the Prison Officers Association Scotland, who said this morning that

“the prison service is best-placed to make those decisions”?

Yes. As I have said before, I have complete confidence in the Prison Service’s ability to deal with such operational matters. Given the public concern over the recent cases, it was right to bring absolute clarity to the position and, therefore, to the process that has been set out to achieve that.

There are number of other interesting quotes from the assistant general secretary. He said that the system has worked extremely well, providing safety for prisoners and for prison staff—for whom, obviously, he has a particular responsibility. It would be useful for those people who are very concerned about the safety of prisoners—women and others—to look at the comments of Phil Fairlie in the interview that he gave today. They would find some real reassurance about the processes that are being followed.

Ministers intervened and overturned the decision to send double rapist Isla Bryson to a female prison, yet an equally violent sex pest—Katie Dolatowski—was sent to Cornton Vale last year, with no questions asked. It seems that the First Minister has abandoned her self-identification policy for prisons—or is it just the case that women’s safety and dignity matters to the Scottish National Party only when it makes front-page news?

Given that the First Minister says that women’s concerns are not valid, and given the red flags for other single-sex services such as women’s domestic shelters, does the cabinet secretary still back the principle of gender self-ID?

I support the principle of gender self-ID. I have just said so. Presumably, Rachel Hamilton does not believe me when I tell her that the decision was not overturned but that, rather, a decision was taken by the Scottish Prison Service to take Isla Bryson to the male estate. That decision was made by the Prison Service, not by ministers. It is hard to proceed on the basis of a calm and considered debate on such things if the facts are misrepresented in such a way. I have confidence in the way that the prison service has conducted those decisions, and I believe in gender self-ID.

Will the cabinet secretary clarify whether any legislation is needed to implement any changes in policy direction following the review, or whether any legislation has an impact on the review?

Any further action will be determined on the outcome of the wider policy review and, if any legislative changes are required, they will be taken forward, as is the ordinary course of such things. However, the Scottish Prison Service policies have in no way been changed or impacted by the recent passing of the Gender Recognition Reform (Scotland) Bill, which, in any event, as most of us know, is not yet in force.

Why was the destination of the convicted rapist who was referred to in the statement changed from Barlinnie prison to Cornton Vale prison in the first place, and why has the Government repeatedly defended the SPS risk assessment as “robust”, given that, clearly, it was not robust, because, as previously mentioned, those risk assessment rules allowed a paedophile to go to Cornton Vale—which ministers knew, because I raised it directly with them? If any lessons are to be learned, does the cabinet secretary agree that the Government, too, should learn some lessons, one of which is to include the safety of women when it looks at prison policy?

On the first point that was raised by Pauline McNeill—as to why there was a change for the person who was mentioned, to go from Barlinnie to Cornton Vale—that is not a decision for ministers. We are not involved in such things and, despite what was said, we would not, in fact, be aware of them, as they are for the Scottish Courts and Tribunals Service and the Prison Service.

It was also entirely consistent with the Scottish Prison Service policy from 2014 that that would be the prison—the women’s estate—for people who identify as women. That would be the normal practice. However, as to that point, as I am sure the member will be aware, many of our prisons have both males and females in the estates. That is true of a number of prisons—for example, Polmont, Edinburgh, Greenock and Grampian. However, as the assistant general secretary of the POA pointed out, that involves their being segregated and having no interaction with the general population, pending assessment—and their possible placing, as happened in this case, in the male estate.

As I mentioned, I cannot comment further on individual cases. I am happy to discuss offline with Pauline McNeill the other case that she mentioned, if that is possible. However, as I have demonstrated, in relation to the wider review that is being taken forward, it is the case that the interests and views of women, in particular, are being taken forward, have been listened to, have been canvassed and will form a part of the consideration of that wider review. That is just as it should be.

When the media take hold of an issue, it can be difficult for us and the general public to know the facts and the detail behind the stories that make the headlines, and, given the confidential nature of the information, it can be difficult for those in authority to answer those claims directly. Yet, risk assessments for the placement of transgender people in prison have been in place for years in Scottish prisons.

The public need to be reassured that the SPS risk-assessment process for the placement of prisoners is sufficient to protect the prisoner and others in the unit in which they get placed. Will there be, as part of the proposed SPS policy review, a review of the risk assessment processes? How will Parliament be able to scrutinise the reviews?

The public should be reassured about the processes that are currently in place. The track record of the Prison Service demonstrates exactly how effective they are. To refer once again to those who have to work on the front line, their trade union representatives say that they have been used to doing this over many years and do it very successfully. It is, of course, one of the many challenges that they face.

On Gillian Martin’s question about whether the review will take into account the assessment process, the wider review will look at the management of transgender prisoners as a whole. It will take in every element of that. In order that the Parliament can have its say, we will update the relevant committee once that work has been finalised.

The Scottish Liberal Democrats believe that anyone who has committed sexually violent crimes and poses a risk to women should not be housed with women in the female prison estate, and that view is shared by Scottish Trans and Rape Crisis Scotland.

This will have been a triggering and bruising episode for survivors of sexual offences and for the trans community, and public trust in prison safeguarding will have been dented. Is the cabinet secretary confident that the outcomes of the reviews will be enough to restore that public trust? What further steps does the cabinet secretary’s Government plan to take to reassure people and heal the divisions in our society?

On the last point, I can make sure that we can discuss these things in a civilised way, with reference to the facts. I recognise that that will be very important in taking some of the heat out of the situation.

I also recognise what Alex Cole-Hamilton says about the position of the Liberal Democrats on the safety of women in prisons. He cited, I think Scottish Women’s Aid and Rape Crisis Scotland, and the latter organisation was until very recently being demonised—wrongly, in my view.

These are perfectly legitimate concerns, which is why we took forward the initiatives. I believe that trust in the Prison Service is well placed, but, of course, it is right that we should continually monitor such processes, especially when they are so sensitive. That is exactly what is happening with the policy review, so I hope that it will provide further reassurance to the public—and the organisations that Alex Cole-Hamilton rightly cites—about the effectiveness of the processes that we have in our prisons.

Does the cabinet secretary agree that prison staff’s experience is vital in dealing with the issue and that their views, as well as their safety and wellbeing, should be considered in the reviews?

I agree with that. I think that I have already said that the process that the policy review is following is now entering the stage of consultation of trade unions. As I have mentioned, the review has already heard from other groups.

We should never accept that prison officers should take, if you like, whatever risk comes their way and that that is just what they are there to do. They have to be consulted. I draw a lot of comfort from what we have heard from prison staff representatives about how things are currently working. However, of course it is right that, as we review processes, the views of prison staff, who share the risk that has been described, are listened to and taken into account.

I was struck by the line in the cabinet secretary’s statement saying that

“We must not allow the legitimate questions that are being asked to fuel the view that trans women somehow pose an inherent threat to women, when that is not the case.”

The cabinet secretary will be aware of recent data that shows an increase in attacks against trans people. Does he agree that the weaponising of trans prisoners by certain individuals will serve only to make trans people more vulnerable? Can he comment on how we can ensure that no prisoners are made less safe because of recent events?

On the last point, I have tried to describe how we can try to keep prisoners safe. Of course, as Maggie Chapman will understand, there is, among staff in our prisons, a heightened sense that we should do that .

I agree—I have commented on it—about the position of trans women. As I have said, perhaps the best way to provide reassurance is to discuss matters in a calm way that takes into account and starts from the question of how we keep everybody safe. It is perfectly legitimate for people to question whether we are doing that effectively—I think that we are—but we can do that in a way that recognises that the primary concern of us all is the safety of all prisoners and staff. We can have a debate that should not give rise unnecessarily to what Maggie Chapman rightly drew attention to, which is the increasing number of hate crimes, or hate incidents, against trans people. There has been a very substantial increase, and we should always be mindful of that.

The cabinet secretary will be aware of an important but pertinent amendment of mine that was passed and absorbed into the recent legislation. The amendment places a statutory duty on the Government to report on the placement of transgender prisoners in the prison estate.

The SPS review was due last summer. We have no idea why it has been delayed; frankly, its absence has not helped the current situation or helped to reduce the heat around the debate.

Irrespective of what happens to the recent legislation, will the Government, in the spirit of transparency, commit today to that reporting requirement? In my view, it requires no legislation but is, in the light of recent events, a sensible and prudent thing to ask of the Government.

First, I agree that that is a sensible suggestion. If Jamie Greene will forgive me, I will have further discussions—one of which I am due to have tomorrow with the Criminal Justice Committee. I will see how the committee would best like that suggestion to be taken forward. However, I have no objection in principle to the point that has been made.

Given the public interest in the matter, it is as well that as many people as possible are aware of all facts. There are unfounded statements circulating—for example, on social media—so I mention again the idea of further reporting. I have mentioned the extent to which I am trying to keep the committee involved. I have written to it today and will write to it again next week. The commitment is that we will go back to the committee after the review, so the letter next week will be about the short-term review that will report this week and—of course—the wider review.

On the delay to the wider review, the review was hugely impacted by Covid. It is being taken very seriously, so, as I have mentioned, as well as analysis and consultation, we are now in discussion with the trade unions and legal services to ensure that everything is absolutely as it should be. I agree that it would have been more useful for us to have had the review now, but the pandemic cannot be wished away and it is what caused the delay.

I think that we all agree that it is important that the human rights of all parties be considered in balance in the placement of prisoners. Can the cabinet secretary provide assurance that that will continue to remain at the core of considerations?

Absolutely—I am happy to give that assurance. In any event, even if we had wanted a different option, we have no option but to do that. It is the right thing to do.

I am also happy to provide the assurance that the SPS is undertaking rigorous human rights impact assessments as part of its wider policy. Whether it is the change that the United Kingdom Government announced last week or what we are talking about, the same regard for human rights has been incorporated in the statements. I am sure that that will also be the case going forward.

Forgive me, but I am struggling to understand how a male, whether they are considered to be a trans woman or not, who is charged with rape and/or other sexual offences is not considered to be a threat to the female prison population. Was the cabinet secretary fine with rapists being placed in female prisons until last week, or was he unaware of such cases and therefore not on top of his portfolio?

I have already explained that the person who is being talked about now was transferred to Cornton Vale, in accordance with existing policy, and was put in a segregated unit where there was no interaction with the rest of the prison population.

It is also true to say, as I have mentioned, that we have both males and females in a number of prisons in Scotland. I believe that assessment of the threat or risk is carried out by people who are far more expert in this than—[Interruption.]

We need to hear the cabinet secretary’s response.

I am convinced that those people are far more expert in relation to making that judgment than I would be—or, indeed, than Pam Gosal would be. That is where the threat and risk should be properly assessed.

Of course, as I have said, we should continue to review and improve the situation as much as we can. That is the purpose of the wider review.

We have heard about the issues in relation to trans prisoners in the women’s estate. The cabinet secretary has described some of the circumstances following risk assessment when a trans prisoner is more appropriately held in the men’s prison estate. In that circumstance, what protections are in place for women prison officers in the men’s prison estate? Can the cabinet secretary confirm that the policy would not require a woman prison officer to carry out intimate searches on such a prisoner?

SPS processes take that eventuality into account. As well as the risk assessments that I have discussed so far in relation to trans women, in this case risk assessments are day and daily, part of the business of the SPS. On the day when the story broke last week, I was visiting the SPS to see a presentation on how it manages the various serious organised crime groups in prisons, which is a huge task that is now much bigger than it has been in the past. We now have serious organised criminals in every single prison in Scotland.

Whether the risk assessment is of a trans woman who is in the male estate or the female estate or of a trans man or other individual, the risk assessment is carried out in consideration of the risks that that individual might pose, and they are placed accordingly.

I am happy to provide Mr Bibby with information about training in relation to the other issue that he mentioned, but I assure him that a risk assessment is undertaken for everybody who enters the prison system.

The cabinet secretary has mentioned consultation of women prisoners on a number of occasions. Can he highlight today how many were consulted, what they were asked, what methodology was used and so on? Will he agree to publish that information if he is not able to do that today?

I will, first of all, check whether any confidentiality agreements were entered into when those people were surveyed and asked questions in the review. I am happy to provide as much information as possible to Michelle Thomson. I will check those matters first and see what information can be passed on. A substantial number of women were consulted and provided their views. I am not certain of the basis on which their views were provided and whether there is a confidentiality requirement, but I am happy to provide as much information as I can.

The cabinet secretary is, when everyone can see what has happened, straining credibility when he suggests that nothing has changed. Do all the events of the past week not just go to show that the amendment to the bill that was lodged by Russell Findlay and Michelle Thomson should have been accepted by the Government and not dismissed as unnecessary? Have events not shown that it is necessary?

The concerns that underlied that amendment were not dismissed at all. That was demonstrated by agreement to a competent amendment that was lodged by Gillian Martin, the effect of which is, for example, to allow the police to stop the process by putting in place a prevention order, should they have concerns about an individual who is applying for a gender recognition certificate. Those concerns were legitimate and were resolved by the Parliament in legislation that was passed by a large majority including representatives of all parties. I just wish that that democratic process was respected elsewhere.

On a point of order, Presiding Officer. In his answers, the cabinet secretary has relied on comments that were made by a Scottish Prison Officers Association official who is, I understand, also a Scottish National Party politician. Can you give me some guidance on declarations of interests by members?

I thank Russell Findlay for his point of order. On the basis that the person who is referred to is an SPOA official, I am not entirely sure that it is for the cabinet secretary to go into the curriculum vitae of that person. That would be for others to do, if they wished to. The member has put his point on the record.

There will be a short pause before we move on to the next item of business.