Official Report 467KB pdf
Early Removal of Prisoners from the United Kingdom (Amendment of Specified Time Periods) (Scotland) Order 2026 [Draft]
::Our next item of business is an oral evidence session on a draft affirmative instrument, the Early Removal of Prisoners from the United Kingdom (Amendment of Specified Time Periods) (Scotland) Order 2026.
Joining the Cabinet Secretary for Justice and Home Affairs are David Doris of the prison policy team and Hannah Hutchison of the legal directorate, both from the Scottish Government. I welcome them and refer members to paper 4. I will allow around 20 minutes for this item of business and I invite the cabinet secretary to make some opening remarks.
::In November, I attended the committee to speak to the draft Management of Offenders (Scotland) Act 2019 and the Prisoners (Early Release) (Scotland) Act 2025 (Consequential Modifications) Regulations 2026, which was the first of two instruments relating to the early removal of foreign national offenders.
That instrument, which was approved by the Parliament on 17 December 2025, brought the point in a sentence from which the early removal period is calculated back into line with the automatic early release point for short-term prisoners, as amended by the Prisoners (Early Release) (Scotland) Act 2025. It also amended the existing order-making power enabling the Scottish ministers, by order, to change the proportion of a sentence that must be served before a prisoner can be removed from prison for the purposes of removal from the United Kingdom.
The purpose of the instrument that you are considering today is to facilitate the early removal from prison of individuals who are liable to removal from the United Kingdom or who have the settled intention of residing permanently outside the United Kingdom.
The instrument, utilising the recently amended order-making power, aligns the provisions with recent changes that have been approved by the Parliament to home detention curfew. Specifically, it provides that the minimum sentence required to be served, before removal is possible, is 15 per cent of the sentence, rather than one quarter. It also increases, from 180 to 210, the number of days, working backwards from the point of automatic release, within which the individual can be removed from prison. These changes will provide a longer and earlier timeframe for removal from prison for the purpose of removal from the country. As the committee will be aware, home detention curfew is not available to prisoners who are liable for removal from the United Kingdom.
I hope that the committee is content to approve the instrument, which helps to provide greater consistency in the management of short-term custodial sentences and may help, albeit in a limited way, to mitigate the high prison population.
::Thank you, cabinet secretary. I will open the meeting to members’ questions, and I will bring in Liam Kerr.
::I have two questions, and the first is more process driven. Can you help the committee understand what happens when a foreign criminal is released? Are they sent somewhere to be held and then taken from the UK to wherever they are going? Or are they released on a good bond that they will immediately remove themselves and take steps to do it? On a practical level, whether they do or not is perhaps open to question.
::The crux of the question is about immigration enforcement. The UK has the responsibility for the removal and deportation of foreign national prisoners. What we are debating today, for our purposes, is the point at which the Scottish Prison Service can facilitate that in someone’s sentence. My understanding is that immigration enforcement take people to—[Interruption.] Actually, I will pass that to David Doris, because I want to make sure that I am on the right piste.
I confirm that individuals are not just released into the community in Scotland. It is an agreed process between the SPS and the Home Office, so that individuals have an agreed point of departure and the flights would be arranged. That is all part of the process when it is implemented.
::How does that work on a practical level? People will be watching this and wondering whether the prison officers open the gates to let someone out and say, “There is your ticket, now off you go and head back to your home country. You will do that, won’t you?” I think that people would be keen for more reassurance that there is an actual managed process, from the gate being opened to the person landing in their home jurisdiction.
::I can give assurances on that process. The Scottish Prison Service works very closely with immigration enforcement with regard to exchange of information or a handover. I have some reticence about speaking about UK immigration enforcement, because it is not within our devolved responsibility, but I understand the motivation for asking the question.
Also, by way of context, the committee might recall that the numbers of foreign nationals that are currently returned are very small. Part of the motivation for this instrument is to increase that number. The figures show that, in the most recent year that the data was recorded, 17 individuals were returned.
11:30
We are quite beholden to support from the UK Government in this area. In reply to a question from Mr Hepburn, I have previously spoken about the fact that only four immigration officers are deployed to work with the Scottish Prison Service and the Northern Ireland Prison Service. They are not connected to Grampian or Inverness, so there are gaps. Of the 77 immigration officers that the UK Government has to work with prisons, only four have been allocated to work with Scotland and Northern Ireland. However, authority over someone’s release rests with the prison governor, so the governor has to be satisfied that appropriate arrangements have been made for the departure of the individual.
::I turn to my second question. I get why this change is being proposed. However, in listening to you, cabinet secretary, I heard that, potentially, a foreign criminal serves 15 per cent of their sentence and then says, “I will go and I promise that I will reside permanently in my home jurisdiction,” so they become eligible and start going through the process. Is there not a risk that we are effectively saying to people that, if they come to Scotland and commit a crime, they will serve 15 per cent of their sentence and then go home? Does that not end up looking like soft-touch justice that makes Scotland an attractive place for people to come and commit a crime?
::When we look at the low numbers of return, we see that the converse of that is true. Under the Sentencing Act 2026, the UK Government has the power to release foreign nationals, including long-term prisoners, at the very start of their sentence. If people were motivated in the way that Mr Kerr has suggested, I would suggest that our nearest neighbour, a much larger jurisdiction, would be a more attractive proposition in that regard. I am not convinced that that is currently a motivation in Scotland. The numbers that are being returned are small. In part, that is because our release scheme, as it stands—parts of it could only be changed by primary legislation—applies only to short-term prisoners, who are serving three months or more, but fewer than four years.
::Cabinet secretary, you said that it would be for the Scottish Prison Service to consider suitability or eligibility for removal under the early removal scheme. That is then referred on to the Home Office for consideration. However, am I right in thinking that, should a governor feel that early removal is not appropriate, they could effectively veto it?
::I do not know that I would describe it as a veto. I do have something in my papers about governors’ responsibilities, if you will bear with me, convener. It reads:
“Prison governors in Scotland have the final say on whether a foreign national offender will be removed during their early removal window and must authorise all removals under the scheme.”
That is crystal clear.
::As there are no more questions, we will move on.
Our next item of business is to consider the motion to approve the affirmative SSI on which we have just taken evidence. I remind officials that only members may speak in a debate on a motion. I invite the cabinet secretary to move motion S6M-20532 and to make any brief additional comments that she wishes to make.
::I flag to the committee that there are exclusions from the early removal scheme that might be of interest and, I would contend, of importance. Those excluded from the scheme are: prisoners who are subject to notification requirements under part 2 of the Sexual Offences Act 2003; prisoners who are subject to an extended sentence under the Criminal Procedure Act (Scotland) 1995; those who are subject to a release order; a prisoner who is subject to a hospital direction under the Mental Health (Care and Treatment) (Scotland) Act 2003; and prisoners who are subject to a confiscation order being made under the Proceeds of Crime Act 2002.
Motion moved
That the Criminal Justice Committee recommends that the Early Removal of Prisoners from the United Kingdom (Amendment of Specified Time Periods) (Scotland) Order 2026 [draft] be approved.—[Angela Constance.]
Motion agreed to.
::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.
We will have another brief suspension before we move on to our next item of business.
11:37
Meeting suspended.
11:38
On resuming—
Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Domestic Homicide and Suicide Reviews) (Scotland) Amendment Order 2026 [Draft]
::Our final item of business is an evidence session on an affirmative instrument. In addition to the Cabinet Secretary for Justice and Home Affairs, I welcome Mary Hill, criminal justice reform unit, and Louise Miller, solicitor in the legal directorate, both at the Scottish Government.
I refer members to paper 5. I intend to allow up to 20 minutes for this item. I invite the cabinet secretary to make some opening remarks on the SSI.
::The affirmative instrument makes the necessary changes to secondary legislation made under the Rehabilitation of Offenders Act 1974 to allow information about spent convictions and alternatives to prosecution to be shared with a domestic homicide and suicide review in Scotland.
The committee will be aware that the creation of a statutory footing for domestic homicide and suicide reviews was established by the Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Act 2025, which gained royal assent last year. The provisions to bring domestic homicide and suicide review into effect will commence in full on 1 April this year. The reviews are designed not to apportion blame but to ensure that lessons can be learned following deaths where domestic abuse is known or suspected to have taken place, with the aim of better protecting victims in the future.
Sections 25 and 26 of the 2025 act place a duty on designated core participants in a review to co-operate with and provide information to a domestic homicide and suicide review and on others to provide information to a review in response to a notice requiring it. Sections 25(3) and 26(2) of the 2025 act, however, generally prevent a holder of information from being required to produce it to a review where it is not information that they could be compelled to produce in Scottish court proceedings. Sections 25(4) and 26(3) of the 2025 act specifically disapply that restriction when the material is covered by an exemption under the Rehabilitation of Offenders Act 1974. That was done to ensure that information about spent convictions and alternatives to prosecution could be obtained by a review when needed. These are the exemptions that will now be created by the affirmative SSI.
To fully understand the circumstances surrounding domestic abuse deaths, the review will need to be able to wholly understand a perpetrator’s relevant history, including when a conviction has been spent or an alternative to prosecution was offered. The reason for that is clear. Having access to all the relevant information about the background to a death will ensure that the review can provide meaningful and maximum learning and recommendations.
Importantly, in cases in which that information is sought, the review panels will not make any determinations about a person’s legal rights or liabilities. There will therefore be no direct impact on the person convicted should information on their spent convictions or alternatives to prosecution be disclosed to a review. If a case review report is published, section 28(2) of the 2025 act requires it to be anonymised first, including to prevent jigsaw identification.
As a further stopgap, each report will go through a process of quality assurance. Police Scotland and the Crown Office and Procurator Fiscal Service will form part of that process. Furthermore, prior to publication of a review report, a risk assessment will be undertaken and the Lord Advocate’s approval will be sought.
Collectively, these measures not only help to protect those who have died and their families, they also help to ensure that those with previous convictions are not identified. The SSI will therefore ensure that domestic homicide and suicide reviews in Scotland will be able to access all the information in order to make effective recommendations and, ultimately, to prevent future deaths from occurring. I commend the SSI to the committee.
::As there are no questions, our next item of business is to consider the motion to approve the affirmative SSI on which we have just taken evidence. I remind officials that only MSPs may speak in a debate on a motion. I invite the cabinet secretary to move motion S6M-20637, in her name, and to make any brief additional comments that she wishes to make.
Motion moved,
That the Criminal Justice Committee recommends that the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Domestic Homicide and Suicide Reviews) (Scotland) Amendment Order 2026 [draft] be approved.—[Angela Constance.]
Motion agreed to.
::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.
That brings us to the end of today’s meeting. I thank the cabinet secretary and her officials for attending.
Meeting closed at 11:45.
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