Chamber and committees

I gave members notice of these amendments when I spoke to the amendments in group 2 at stage 2.

Amendments 1 and 4 are technical amendments to ensure that, in the event of a prisoner who is serving a sentence outwith the United Kingdom being transferred to a Scottish prison to serve the remainder of a short-term sentence, and when that sentence is for the equivalent of a sexual or domestic abuse offence, the prisoner will definitely be excluded from the change in the release point and will instead continue to be released at the halfway point in their sentence.

Such transfers are uncommon: there are currently no prisoners in custody in Scotland who fall into that category. However, I have been clear throughout the bill process that the changes that are made should not apply to those who are serving sentences for sexual offences or for domestic abuse. Amendments 1 and 4 will ensure that the bill captures every case to which those exclusions should apply.

Amendments 1 and 4 will allow the Scottish ministers to determine that any prisoner who is serving a sentence for a sexual offence or a domestic abuse offence and is transferred to Scotland from abroad will be treated, for the purposes of release, as though that offence was committed in Scotland. That determination will be carried out as part of the transfer process and will be based on information received about the facts and circumstances of the case.

The amendments include a narrow regulation-making power to enable further changes to be made, subject to Parliament’s approval, to ensure that the solution operates correctly within existing processes and is consistent with all relevant legislation.

It should be noted that amendments 1 and 4 concern prisoners who are transferred from outside the UK. Different legislation applies to prisoners who are transferred to Scotland from other parts of the UK, who would be transferred on the basis that their release is determined by the law of the part of the UK that sentenced them. As a result, no provision needs to be made in relation to those prisoners.

I again emphasise that it is not expected that the issue with regard to prisoners who are transferred from abroad will arise often. In fact, it is not relevant to anyone who is currently in custody in Scotland. However, it is important that we ensure that the provisions of the bill apply as intended and that we future proof the bill to encompass all foreseeable circumstances. I therefore urge members to support amendments 1 and 4, which ensure consistency across the bill.

I move amendment 1.

I have wound up.

Amendment 1 agreed to.

The purpose of the bill is to allow for changes that will relieve some of the acute pressure that is currently being experienced in our prisons due to the high prison population. We all know the consequences of the high prison population—not least for the staff who work around the clock in our prisons. They are on the front line of the Scottish Prison Service and carry out dedicated and formidable work day in, day out, so I want to put on the record my appreciation and heartfelt thanks to them.

A letter that was received this week by the Criminal Justice Committee from the Prison Officers Association’s Scotland branch reported that its members are increasingly concerned that

“the crucially important relationships between staff and prisoners that allow them to share those confined spaces in a way that allows good order, discipline, and productive rehabilitative work to be undertaken”

are being put at risk. The Prison Governors Association’s Scotland branch has also written to the committee in support of the bill, highlighting the necessity for the prison population to be reduced in the short, medium and longer terms.

The purpose of the bill is to do just that. The change to the point of release for most short-term prisoners will be for those who are currently sentenced and those who will be sentenced. That will provide immediate relief from the pressures that our prisons are facing.

The initial release of an estimated 260 to 390 prisoners will be managed in three tranches over six weeks from February 2025. Importantly, as it is a permanent change, there will then be a sustained reduction of the sentenced population, with estimates that it will remain around 5 per cent lower than it would have been without the change.

We need the prison system to focus on those who pose the greatest risk to the public and to provide a range of support to help to reduce reoffending and to support integration back into the community.

That matter is referenced in the policy memorandum. It will not be done in relation to geography, because of the bill’s retrospective nature. Once the bill commences, there will be people who are already eligible for release. However, they cannot all be released at once; therefore, people who are closest to their liberation date will be released post their new liberation date. Releases will go forward in that fashion.

The bill includes built-in exceptions for people who are serving sentences for sexual offences or domestic abuse. I have recognised throughout the process that I totally understand that victims and their families might be concerned about the changes that we are making. That is why we are already working with victim support organisations and providing them with clear information about the bill, so that people who are seeking assistance can be well supported. I will also work with those organisations to encourage people who want to have information on prisoners in their cases to sign up to the victim notification schemes if they want to do so. That is ahead of future reforms to the service, which Siobhian Brown, who is the Minister for Victims and Community Safety, will introduce at stage 2 of the Victims, Witnesses, and Justice Reform (Scotland) Bill.

I acknowledge the differences of opinion in and around the subordinate regulation powers in respect of long-term prisoners. I will not repeat what I have said at stages 1 and 2, other than that I hope that I have been clear throughout the process that it is of vital importance that the power be reinstated so that we can act flexibly to manage the prison population in the future, and can continue to work with partners to find a better balance between time spent in custody and under supervision in the community. That was widely supported in the consultation on the release of long-term prisoners that we held in the summer, and I fully accept that more detailed work needs to be done before—and if and when—any proposals are brought forward.

I also welcome the constructive amendments that were made during stages 2 and 3, which will ensure that any use of the regulation-making powers is the subject of consultation and that the Parliament is provided with information to inform later scrutiny of regulations.

Provisions in the bill allow for the prison population to be reduced at pace and for that reduction to be maintained. However, I have recognised throughout that the legislation alone cannot solve the complex issue of why we have one of the highest prison populations in western Europe. What the bill does is create vital space in our prison system now, which will be maintained. That will allow—in respect of the medium-term measures, such as enhanced processes for release and home detention curfew, and on-going work to encourage more widespread use of alternatives to remand—those endeavours to have an impact. It will also allow the Prison Service to more effectively support those who are in its care, which will contribute to a longer-term reduction in reoffending.

As I have said, we cannot ignore or tolerate the position that our prisons are currently in due to their high and complex population. The final form of the bill is needed to give clarity to the Prison Service, community partners, victims and those who will be released in order for the process of implementation to begin. Agreeing to pass the bill tonight will allow for the changes to be made as quickly as possible, which will provide relief to our Prison Service and staff.

I move,

That the Parliament agrees that the Prisoners (Early Release) (Scotland) Bill be passed.

I start by thanking my officials in the Scottish Government and the parliamentary officials for all their work. I also extend my thanks to all members who have contributed to the debates around the bill. I assure all members that emergency legislation is not my default position. I have appreciated the engagement with members from across the political divide, even when we have disagreed and even though, at times, I have been challenged on the resources for implementation and then, when I have delivered those resources, people have complained about the cost to the Daily Mail or whatever.

Fundamentally, I believe that it is not unreasonable for members of the public, or for any member of the Parliament, to ask how the bill makes them safer and why people are having their sentences reduced. The answer to that is, in short, that we all have a vested interest in rehabilitation but that it has to be rehabilitation that works. Rehabilitation is about challenging people on their behaviour, but it is also about engaging them and the importance of relationships. It is not about enforcement or tick-box exercises.

At the start of the stage 1 debate, both Liams—Liam Kerr and Liam McArthur—made a reference about my having had a hospital pass, which was somewhat wry for me, as a former prison social worker and a former hospital social worker in a psychiatric hospital. There are two things that I know in my bones. I know that, right now, neither Liam would swap places with me, because they both have a luxury that I do not have. Despite the challenges, right now, there is no other job that I would choose to do. I know that I am not alone in this but, for me, this work is deeply personal as well as political.

Yes, I am a 54-year-old woman who has grown up in a society that has endemic misogyny and where violence against women and girls remains endemic and continues to be on the rise. Yes, I am the Cabinet Secretary for Justice and Home Affairs and a former prison social worker—I often forget that I am a politician and still think of myself as a social worker.

There is not a choice between supporting prison staff, supporting victims and supporting prisoners—we have to deliver for everyone. I again go back to the letter that we all received from the Prison Officers Association, which said:

“I don’t think it will come as a surprise to anyone that while we are extremely proud of the incredible work our members are doing on a daily basis in our prisons, we are ... extremely fearful for their physical and mental health the longer they are asked to put themselves in harm’s way”.

That is why I need to take and lead action now. I do not have the luxury of not pursuing every option that is available to me.

Amendments 2 and 8, which were lodged by Sharon Dowey, would have the effect of coercing people to participate in programmes under the threat that, if they do not, they will have to spend longer in custody.

I have said repeatedly that one problem with the current high prison population is that it reduces the capacity of the Scottish Prison Service to facilitate purposeful activity and support rehabilitation, which is essential in preparing individuals for reintegration into the community. I support the availability of rehabilitation programmes, recovery programmes and the range of other support that is provided by the Scottish Prison Service, which help to address the needs of those in custody so that, post release, they are better equipped to reintegrate into the community.

However, participation cannot be compulsory, for the simple reason that, often, mandatory participation does not work—it can even be dangerous in cases of substance misuse, as forcing people to engage when they are not ready to do so can exacerbate related health and wellbeing issues and prolong the challenges of substance use.

The Scottish Government remains fully behind the importance of the undertaking of rehabilitation work in our prisons and communities. However, that work cannot and should not be forced on people as a means of securing their release from prison custody. Although I appreciate the desire to promote rehabilitation, amendments 2 and 8 are not the right way of doing it, and I therefore urge the Parliament not to support those amendments.

I turn to amendments 3 and 9, in the name of Jamie Greene. I inform Mr Greene that I made myself available to every Opposition spokesperson who has an amendment in this group, and I was pleased that they all took that opportunity, despite our different views.

As Mr Greene articulated, his amendments seek to exclude people who have previously reoffended from release at 40 per cent of time served. There are bigger, broader issues that we need to consider, such as the balance between prison sentences and community justice and community-based interventions. Those options might not be attractive to some, but evidence tells us that they can be more effective at reducing reoffending than short custodial sentences. That is why we are investing £148 million in community justice this year, which is £14 million more than we invested last year.

I consider that the proposed exclusions from release at 40 per cent of time served for those who are serving sentences for domestic abuse and sexual offences strike the right balance. It is important to carefully consider the justification for excluding additional groups of people from the changes that are proposed by the bill, and how that would work in practice. The current exclusions have been considered carefully and in depth.

At stage 3, I will lodge an amendment on a technical point to ensure that the bill captures every case in which the exclusions should apply to a short-term prisoner. However, it is not appropriate to include new offences where the same justification may not apply. The amendment that I will lodge at stage 3 will, in particular, ensure that in the event that a prisoner who has been sentenced to less than four years is currently serving that sentence outwith the UK but is transitioned into a Scottish prison, and that sentence is for the equivalent of a sexual or domestic abuse offence, they will definitely be excluded from the change in release point and will instead continue to be released at the halfway point.

In respect of this final amendment grouping at stage 2, it is important that I balance the slight rewriting of history. I have looked at the issue tremendously closely, and the facts of the matter are that, due to the reforms that the Government has led, which were often opposed by Opposition members, the prison population decreased from 2010-11 until 2018. It started to increase again in 2019, for some of the reasons that we are contending with today. Covid came along and there was a dip in the prison population. With the post-Covid recovery, the prison population got to very high levels over 2023-24. Up until March this year, it was high, but it had stabilised at a high level, although I am not suggesting that that is not in itself problematic. There was then a spike between March and May 2024, which led to the introduction of early emergency release regulations.

The issue is what we will do now. I hear lots of discussion about the need for long-term plans. I have laid out the plans that we have implemented in the past and what we intend to pursue for the future. I am not going to rehearse the evidence sessions that I have participated in at committee or the four or five parliamentary statements that I have made.

I will do so in a moment.

Another important strand of work is in relation to the victims task force, which I co-chair with the Lord Advocate. Although we sometimes get into a debate that presents opt-in or opt-out in a binary way, the reality is different.

The work that the victims task force is taking forward might be labelled as a move towards an opt-out system, but, at its core, there is still choice and personal agency. There will be further improvements not only to our legislative response to the independent review of the victim notification scheme, but to the work of the victims task force, which has now moved to its next stage. I am very supportive of the work that the victims task force is doing.

I am happy to give way to Mr Whitfield.

I am pleased that Parliament approved Maggie Chapman’s amendment 21 at stage 2. That amendment requires the Scottish ministers to consult organisations providing support to victims, as well as key delivery partners, before regulations changing the release point can be made.

I said at stage 2 that I was willing to work with members to see what more could be done to ensure that the Parliament is updated about any proposed regulations under the power.

I support amendment 2 and amendment 2A. Taken together, they will require the Scottish ministers to seek to make an oral statement to the Parliament on laying the regulations that sets out the reasons for making the regulations, the consultation that has been undertaken and the information that will be available to victims about the changes that will be made, if approved. Although we would have always intended to keep the Parliament updated, that is an appropriate and proportionate approach, which will provide further reassurance on that point. I thank Sharon Dowey and Pauline McNeill for the constructive discussions that we had about how we might further strengthen the process for making regulations under the powers in the bill. I urge members to support amendment 2 and amendment 2A.

I acknowledge the strength of feeling and the views that have been expressed by some members. I have already set out the reasons why I believe that it is necessary to update the current powers that Scottish ministers have to amend the point of release using subordinate legislation. The regulations would be subject to affirmative procedure, which means that they could not become law without being approved by a vote of the whole Parliament. That would also provide opportunity for committee scrutiny.

As I made clear, we do not plan to make any change to long-term prisoner release until detailed work has been carried out to ensure that those who are released can be safely managed in the community.

There was support in principle among justice agencies. However, there was acknowledgement from those who have been consulted—and, indeed, from me—that there is merit in further exploration. The powers will not be used until all issues are resolved.

I have supported amendments that will guarantee that consultation is carried out and that Parliament is kept updated, in order to inform full scrutiny.

I know that not all members agree on the way forward, but, in the context of a high prison population, we need to ensure that a wide range of options is available. I consider it of vital importance that that power is now restored.