Chamber and committees

I have nothing further to add.

I will begin by setting out why I think that section 8 is important.

Ensuring the security and good order of our prisons as well as the health and safety of prisoners and prison staff is absolutely critical, and it is a responsibility that I take extremely seriously. The emergency prisoner release power in the bill is intended to support that essential principle by providing a means of releasing groups of prisoners if the impact that an emergency situation is having, or is likely to have, puts the security of prisons or the safety or welfare of prisoners or prison staff at risk. That is not a power that I would ever hope to use, and that is not the reason for including it in the bill. It is in the bill because, as the pandemic showed us, we, as a Government and as a Parliament, have to be able to respond to the unpredictable. We must ensure, as far as we can, that the mechanisms are in place for us to respond immediately to emergencies when lives might be at risk. This is one of those mechanisms.

Unlike the United Kingdom Government, which has had such a power since the early 1980s, the Scottish ministers currently have no legal power to instruct early release in order to protect the security of prisons and the safety and welfare of prisoners and staff, other than specifically in response to Covid. As a result, without the provisions in section 8, we would be required to introduce emergency legislation if we needed to respond to an emergency situation in our prisons in order to protect lives—for example, in the event of a major fire in a prison.

I just want to pick up on some of the points that have been presented to Ms Mackay. First, to respond to a point that Pauline McNeill raised, further detail can be set out in the explanatory notes. Secondly, in terms of Ms Mackay’s amendments, it is with respect to people who have 180 days or less left to serve.

Will Mr Findlay outline what role victim support organisations should play in the delivery of a prisoner’s plan?

It is about delivery.

Clearly, it would be used in extremis—that is, in an emergency that had an immediate impact on, and threatened the safety and wellbeing of, staff and prisoners. I suppose that one example would be a major fire that had a major impact on a prison, resulting in its being unsafe.

We have to acknowledge that passing even emergency legislation would take time, and it would be time that we could not afford. The decision to include the power in the bill was not one that we took lightly, and we have included a number of safeguards that, I would highlight, do not exist in other jurisdictions. For example, there are statutory exclusions that prevent certain prisoners from being eligible for release under the emergency power, including those who are serving sentences for sexual offences or who have been convicted under the domestic abuse acts.

Furthermore, amendments 12 and 13, in my name, would extend the existing governor veto. Those amendments would enable the prison governor to veto the release of an individual under the emergency release power if they considered that the individual would pose an immediate risk of harm to

“an identified group of people”,

as well as to an identified individual, as provided for under the bill’s current drafting. That is in direct response to concerns raised by victim support organisations.

I have heard a number of times now that the provision is not necessary, as the powers already exist, but that is not correct. It is true that there is a comparable power under the 2022 act, but that is to be used only in relation to the impact of the coronavirus. Moreover, it is temporary, ending in 2025 at the latest. The release power under section 8 of the bill is designed to be used in an emergency situation that places at significant risk the security and good order of a prison or the health, safety and welfare of prisoners or prison staff.

I now turn to the rest of the amendments in the group. Amendments 90 to 92 and 94, in the name of Rona Mackay, would bring the early release provision in the bill in line with the comparable provision in the Coronavirus (Recovery and Reform) (Scotland) Act 2022 following changes made at stage 3 of the bill process, which responded to amendments lodged by Jamie Greene and Russell Findlay at stage 2 of that process. I agree that amendments 90 to 92 and 94 would strengthen the provision; therefore, the Scottish Government supports them.

Amendment 93, in the name of Jamie Greene, would remove the ability of the Scottish ministers to use the made affirmative procedure for the emergency release regulations. That would significantly impair the Government’s ability to take immediate, necessary and proportionate action to ensure the safety and security of prisons. For that reason, I cannot support it.

The Delegated Powers and Law Reform Committee rightly scrutinised the use of the made affirmative procedure in the bill, and the Scottish Government provided it with further detail to inform that scrutiny. I note that the DPLRC’s response to this committee on the delegated powers memorandum to the bill stated:

“The majority of the Committee is content with the explanation provided by the Scottish Government and accepts the power in principle. The majority of the Committee is also content that the exercise of the power will be subject to the affirmative procedure but may be subject to the made affirmative in specified circumstances and by reason of urgency.”

Therefore, I ask Mr Greene not to move amendment 93.

Amendment 38, in the name of Katy Clark, would entirely remove the Scottish ministers’ ability to direct the release of groups of prisoners in response to an emergency situation. That power is currently available to other jurisdictions in the UK, and it has been for some time. For the reasons that I have set out, I cannot support the amendment, which would remove the Scottish ministers’ ability to release groups of prisoners in response to the impact that the coronavirus has, or is likely to have, on the security and good order of prisons and the health and safety of prisoners and prison staff. Therefore, I ask Katy Clark not to move it.

Section 7 introduces a new temporary release licence for long-term prisoners. The bill does not name the licence, but the term “reintegration licence” is used in the supporting documentation, so I will use that term.

The reintegration licence is intended to operate in two circumstances. The first is in advance of the Parole Board’s consideration of a prisoner at the parole qualifying date or at a subsequent review if they are not released on the PQD. In that circumstance, the Scottish ministers would make the decision to release on the basis of risk assessment and consultation with the Parole Board.

The second circumstance is that release can be directed by the Parole Board when it has recommended that a prisoner be released on parole on the PQD. The board can direct that the prisoner be released on a reintegration licence in advance of that date.

The intention of the provision is to provide the opportunity to support the reintegration of certain long-term prisoners. For example, it will help them to link to community services and to build a relationship with their supervising officer.

In the circumstance in which Scottish ministers release an individual in advance of the Parole Board’s consideration of the case, release on the licence provides the opportunity for structured testing in the community. That will provide further evidence to the Parole Board to inform its decision making.

I will speak to amendment 55 and the other amendments in the group. There is a wide range of amendments that seek to do different things, so it will take a little time to explain why the Government opposes the amendments, and I hope that you will bear with me.

There are amendments that seek to expand the circumstances in which remand can be used by the court, some of which would potentially significantly widen the basis on which remand might be used even in the current system, let alone under the proposed framework that is envisaged by the new bail test in section 2. It is, of course, in respect of the current system that the committee called for a reduction in the use of remand. The relevant amendments run counter to the Government’s policy to narrow the focus of the bail test so that remand is kept as a last resort, either when there is a risk to public safety, including victim safety, or there is

“a significant risk of prejudice to the interests of justice.”

Amendment 55, in the name of Katy Clark, would remove the new bail test that is proposed in the bill. If we are committed to ensuring that remand is a last resort reserved for cases in which it is really needed to protect the public and victim, or to safeguard the interests of justice, it is important that members reject amendment 55.

Jamie Greene’s amendment 56 would expand significantly the court’s ability to remand an accused person under the current bail test. It would have that effect as a result of separating the two requirements of the new bail test to make them alternative rather than cumulative. The effect would seem to be that the court would remand an accused person where one or more of the grounds listed in section 23C(1) of the 1995 act was established, or where there was a risk to public safety or

“a significant risk of prejudice to the interests of justice”,

as is set out in proposed new section 23B(1A) of the 1995 act. An accused person who posed no risk to public safety or to the delivery of justice could therefore be remanded solely on the basis that

“at least one of the grounds ... in section 23C(1) applies”.

I want to continue with my previous train of thought, after which I will—I promise—explicitly address your points in relation to the Lord President, because they are important.

The court is required to decide on bail on the basis of the information that is put before it in the timeframe that I referenced earlier, regardless of whether justice social work has provided information. Equally, there is no risk that bail will be refused because the court is waiting for information from justice social work, because, under existing law and under the bill, the fact that the court is waiting for information from any party is not a reason to refuse bail.

Amendment 49 would leave it to the discretion of the court whether to offer an opportunity to justice social work to provide information. There is a risk that that could mean that valuable information would not be provided in individual cases.

I turn to the remarks of the Lord President. The committee will be aware that, as Pauline McNeill mentioned, the Lord President offered views. I think that it will be helpful for me to take each of those views in turn.

With regard to prescriptiveness, we acknowledge that the new bail test is more prescriptive. That is because it adds two new specific public interest considerations, one or the other of which must apply in order for bail to be refused and remand to be deemed necessary in the future. For the record, those considerations are

“the interests of public safety, including the safety of the complainer from harm,”

and

“to prevent a significant risk of prejudice to the interests of justice.”

That is a deliberate policy approach, which is designed to focus the use of remand. Therefore, the new test is more prescriptive, but it is prescriptive with a purpose. It is part of the policy goal of achieving a more focused use of remand, which we hope will, over time, reduce the use of remand.

In terms of time taken, which the member referenced, we acknowledge that some time may need to be added to some bail hearings. That is to ensure that the courts have better information on which to make their decisions.

I will move on to amendments 50 and 51, in the name of Liam McArthur, which would require the courts to seek views directly from the complainer or from victim support organisations on behalf of the complainer to inform the bail decision. We have concerns about the practicality of those well-intentioned amendments, due to the timescales within which bail decisions must be made, particularly in custody cases. In my view, they are not necessary and they may have unintended consequences.

When the court is deciding whether to grant bail, the prosecutor and the defence are also able to make submissions to the court on the question of bail. In doing so, the prosecutor can and should make the court aware of any safety concerns that they think arise based on the particular facts and circumstances of the case. That is particularly so under the new bail test, which centres the consideration of public safety in bail decision making, including the safety of the complainer from harm.

We all agree that it is important that the complainer’s voice is heard in the court process, and I am happy to discuss the matter further with Liam McArthur ahead of stage 3. However, it is also important to be mindful of the sensitivities around communicating complainers’ safety concerns to the court, particularly in domestic abuse cases.

Domestic abuse involves complex dynamics in which it can be important that information about concerns that may lead to a partner or an ex-partner being placed on remand is not attributed to information that is provided by the complainer, so as not to compromise safety or make complainers fearful to engage.

If you let me finish this paragraph, I certainly will.

Mr Findlay’s amendment would expand the reasons for which the court may consider it necessary to refuse bail to include the phrase

“because the court considers it likely the accused person will breach their bail conditions”.

It is the Government’s view that the amendment is not necessary, because the new bail test already ensures that the court can consider the impact of such breaches of bail.