Chamber and committees

I am delighted to follow Audrey Nicoll, who has done a fantastic job as convener of the Criminal Justice Committee. I endorse all that she said about our joint work on violence against women and girls.

“Scottish public authorities are at risk of costly court battles because of the ‘unregulated introduction of gender self-identification as a basis for policy’”.

That is from The Herald last week.

To be fair, some of those policies have existed in public life for a while—in fact, probably since about 2014—but, for long enough, they went unnoticed and were not publicly discussed.

Jackie Baillie was right to say, as it says in the Labour amendment, that the Government has failed to produce any serious guidance on how public bodies should manage policies to protect women’s rights to single-sex spaces but also to protect trans people.

The UK Supreme Court is considering whether having a gender recognition certificate changes a person’s sex for all purposes under the Equality Act 2010, so we will need to wait and hear that decision. However, it is at least clear that it is not a requirement for public bodies to base their policies on self-identification. Public bodies are required to base their policies on the provision of single-sex private spaces.

Public Health Scotland, the Scottish Prison Service, the NHS and universities have all gone beyond the law on the provision of single-sex facilities. They have failed to meet their legal obligations in relation to women and girls.

In the case of Fife health board, there was no impact assessment on allowing the medic to use a single-sex changing room. That is despite—and this is important—there being a legal duty to conduct such an assessment. You cannot cut corners, even if you agree with the policy.

It is relevant that the 1992 employment regulations are clear that communal sanitary washing or changing facilities will not be sufficient or suitable if they are not provided separately for men and women, as Fergus Ewing said. That was endorsed by Jackie Baillie.

Dr Michael Foran said that

“There is no plausible legal argument that the 1992 Regulations must permit access on a self-ID basis. Indeed, doing so would be a clear breach of the regulations, and guidance that suggests otherwise is incomplete, misleading or false.”

The central questions are, why do public bodies risk being on the wrong side of the law and where do those policies come from? The Government has to take responsibility in that regard. The Equality and Human Rights Commission pointed out that, in the case of Fife health board, no assessment was done.

Police Scotland’s guidance says that all members of staff are entitled to use toilet and changing facilities that are appropriate to their sex, but, again, the current policy ignores the 1992 regulations. I believe that that is under review, but I am unclear on what the current policy is.

We need leadership on the issue. Women’s spaces are about their right to dignity and privacy as much as they are about safety. Women should be central in the design of those policies, because levels of violence against women and girls have never been higher. None of those examples illustrates that women have been central to the design of those policies.

It was the case of Isla Bryson that probably altered the public understanding of the self-identification policy. It was while Isla Bryson was waiting to stand trial and was placed on remand in a women’s prison that the transition began. The Government seemed to realise that the policy was problematic only when it became public, and the Scottish Prison Service made the decision to divert Isla Bryson to Cornton Vale prison rather than Stirling prison or the planned destination at HMP Barlinnie. However, only after public outcry was there redirection of the destination of the prisoner. Having allowed that to happen was a prime example of where the Government’s policy is contradictory.

We agree with the Scottish Government that special policies should be applied to women offenders, because most women in prison are vulnerable. I do not need to tell the minister that 70 per cent of them have experienced domestic abuse and a third of them have had head injuries because of male violence. To force them to share a space in a female prison with someone who is charged with a sex offence is completely unacceptable to most people, and certainly to the people I represent. The judge found in that case that the offender had a high risk of reoffending, which only serves to highlight the risk that was posed to women.

We do not have clarity over whether female prison officers have to search a male-bodied trans woman. This is the point that I want to make—we cannot make unilateral changes to policy without involving those who are expected to enact that policy. I hope that the Government would at least agree with us on that point.

We have policy capture that is widespread in public bodies, and the Government’s smoke-and-mirrors amendment tells us nothing really about whether it takes any responsibility for that. We will work with the Government to protect women and girls and their right to single-sex spaces, and we will work with it to make that policy work for all people, but I say to it, please take some responsibility for the shambles that we have to endure right now.

Our hearts go out to the people of Ukraine for what they have endured, and their hopes for peace and security for their nation and their right to sovereignty.

Does the First Minister agree that we live in complicated and dangerous times, given the rise of the right in Europe and the unpredictability of the US Administration, and that we must therefore strive for peace and stability in Europe and influence, where we can, all nations that are at war? That includes peace and security in the middle east, where Europe could play a leading role for peace.

I know that the cabinet secretary agrees that, as part of the strategy, we need to improve throughcare services. The Wise Group recently advised me that one of the big issues for offenders who leave prison is the fact that they will have lost their place on their general practitioner’s list. That is one of the stumbling blocks in getting them resettled back into the community.

Will the cabinet secretary consider finding a way round that, perhaps by freezing the place of offenders on GP lists, so that it will be much easier for them to see their GP when they leave prison?

Given that the Mental Welfare Commission has visited Skye house on six occasions since 2017, and given that the main issues that were raised in the BBC’s investigation include allegations of physical abuse—including nurses quickly resorting to force such as physical restraint and dragging patients down corridors, leaving them bruised and traumatised—can we have any faith that the enhanced programme of visits will provide the necessary oversight?

Given the magnitude of the allegations, surely it is time to consider regular unannounced visits to such facilities, because Skye house is not the only institution that has had allegations made against it involving abuse of children. Otherwise, we cannot be sure that children are getting the standard of care that they need.

Will the cabinet secretary take an intervention?

It dumbfounds me at times. I have been taking part in debates on this issue for two decades now—indeed I have—and we know that the answers lie in throughcare and supporting prisoners. However, we are nowhere near doing that. A budget line that demonstrated the Government’s commitment to throughcare would definitely be appropriate.

I want to set out why we are not convinced by the policy review.

Our prisons are bursting at the seams and we are being forced to release prisoners early, causing deep public concern. We have some of the highest levels of incarceration in Europe, so it is clear that one of the answers to this situation is to focus on sentencing.

It is also obvious that, to do so, we have to give the courts serious alternatives to imprisonment. I do not know how many times that that has been said in the chamber, but it is a failure of SNP justice management that we have not made progress in that area. For example, the number of community payback orders has slumped over the past decade. In 2014-15, there were more than 19,000 orders, but nearly 10 years later, that figure is just over 15,000. To me, it seems extraordinary that we are going backwards.

If we want to send fewer people to prison, where that is appropriate, and relieve our bulging prison estate, it is important that we run our prisons better from within. The point about the importance of being able to work with offenders has been rehearsed many times. It is all about the work that we do with them, about their conditions in prison and about staff being given an opportunity to do the job that they were employed to do inside the prison.

Research suggests that community sentencing can have a positive effect on both the chances of the perpetrator reoffending and the public purse. What is crucial in those cases is that it makes sense to use it and that it has the confidence of the public and the judiciary—we all know that. It is not an easy fix, and it requires a serious focus to make it work. To that extent, I agree with the cabinet secretary and assure her that Scottish Labour thinks that this is a matter on which there should be cross-party working.

I have heard this many times, but one reason for community payback orders not being used as much as they should be is that judges do not seem to have the confidence in some of the programmes or in the ability of the convicted person to complete them. We need to improve the suitability of community payback orders, particularly for those with addictions and those who lead chaotic lives. The Criminal Justice Committee heard as much fairly recently, when Karyn McCluskey, the chief executive of Community Justice Scotland, pointed out that

“We must imprison those whom we are afraid of, and not those we are mad at. People enter our justice system with mental health issues, addiction problems, homeless, from the care system and many who’ve been victimised as children.”

However, for those who receive a jail term, we need to improve access to throughcare services. Such services involve trying to get people who are coming out of prison back into their homes and communities, something that many third sector organisations such as the Wise Group are, as we all know, brilliant at.

The throughcare budget is around £5 million, but it has been estimated that providing throughcare for everyone who comes out of prison will cost nearly £19 million. Given that the majority of sentences are short term, and that many people with addiction issues cycle through the system time and again, it is a false economy not to invest more in those systems.

I have had many letters from constituents who have written to me from prison, frustrated that they cannot get on to the courses that they are willing to go on to demonstrate that they have been rehabilitated. I confess that I do not have the data, so this is somewhat anecdotal, but the suggestion is that there are long waiting lists in prison for people who want to go on rehabilitation courses, and it has also been suggested that someone could be waiting on the list, but someone else could go above them. It seems a bit unfortunate that there are issues inside prisons with trying to do that kind of work, and it would be helpful to get more data on that.

At the moment, the Scottish Labour position is that we are not in favour of a sentencing policy review. I have to say that this is the first time that I have heard the cabinet secretary’s intentions. I will reconsider, but that is our position at the moment.

I absolutely do welcome it, but the two points are not mutually exclusive. I would like it to be visible, but of course I welcome the commitment. What I have been demonstrating is that a lot of the answers to the problems are already known.

There was confusion over the sentencing policy for under-25s, partly because the Scottish Sentencing Council did not seem to take any soundings from the Parliament before it arrived at it. However, there has not been a lot of discussion in the Parliament about that. There is lengthy guidance, as Liam Kerr has already said, which has been quite controversial, and there is a case to be made for the Criminal Justice Committee to look at sentencing, too.

The point that I want to make to the cabinet secretary is that there must be transparency around this important debate. One of my concerns about another review on sentencing is that it will put it behind closed doors, but the Parliament needs more transparency in the discussion. I do not fully understand what approach the Crown Office and Procurator Fiscal Service is taking, for example, although it seems to be using its discretion more often not to take young offenders to court. I am not commenting on the rights and wrongs of that, but there should be more up-front openness about what is happening.

If the Government wants cross-party support on sentencing, it follows that we need to know exactly where the Government is heading on that, and we need to discuss what the alternatives will be. We believe that the job of the Government is to get on with it and not kick it into the long grass with a review.

In many debates, we have noted that 2,000 people are on remand in Scotland, which is a problem that needs to be discussed. We need answers on how to deal with remand prisoners in overcrowded jails, where, for obvious reasons, there are no programmes, and we need to think more about the conditions in which we hold remand prisoners.

People on remand suffer some of the same issues as convicted prisoners. I am sure that the cabinet secretary is aware of this, but the Wise Group has told me that one of the things that happens when someone goes to prison is that, along with losing their home and job, they are removed from the register of their general practitioner’s surgery—and that seems to be the case even when someone is in prison on remand. One small change that could be made would be not to do that. Indeed, the Criminal Justice Committee has successfully argued for prescriptions in the prison system to make that more joined up; small things can be done that will make a difference to prisoners, and that is one that the Government should look at.

I will listen carefully to what the Government has to say. However, at the moment, our position is this: let us get on with the job. We know where the answers lie. The Government will get our full co-operation. However, we do not want to see this happen behind closed doors.

I move amendment S6M-16532.2, to leave out from “recognises” to end and insert:

“acknowledges that prisons remain severely overcrowded, with prisons operating above capacity even after the Scottish National Party (SNP) administration’s emergency early release of prisoners, impacting on the ability to rehabilitate offenders; is concerned by the high numbers of women in prisons; condemns the SNP administration’s failure to tackle high reoffending rates, which result in offenders returning to custody due to the lack of robust alternatives; agrees that the third sector can play a significant role in the effective delivery of justice services that reduce reoffending, and support reintegration into society; calls on the Scottish Government to urgently increase the availability of robust community payback orders, and invest in safe and secure GPS electronic monitoring to drive down the remand population and give more public confidence to non-custodial sentencing; further calls on the Scottish Government to expand access to throughcare services, which are essential in assisting offenders to reintegrate into society and to stop offending; believes that a review of sentencing and penal policy will not address the urgent crisis in Scotland’s justice system, and resolves that the SNP administration should take immediate action based on parameters set by the Parliament to address these concerns, rather than focus on a review that will not take the prompt action needed to fix the justice system and keep Scotland’s communities safe.”

To ask the Scottish Government how it plans to encourage the prescription of medicinal cannabis on the national health service for the relief of chronic pain. (S6O-04323)

On a point of order, Presiding Officer. My device would not connect at all. I would have voted no.