Chamber and committees

We are asking for the powers to be extended to 31 March next year. The point that I was trying to make was that the pandemic can quickly change in nature. What if, hypothetically speaking—I have no inside knowledge on this—we saw a very benevolent decrease in the pandemic and a much smaller incidence of the virus in the prison estate and elsewhere? That would inevitably raise concerns among committee members, and in that context—or in some other context—I would be more than willing to come back to the committee to explain things or listen to members’ concerns. That is my offer at this stage.

Thank you for inviting me to come along. I will be brief.

SSI 2021/289 extends the application of certain modifications that were made to the prison rules in response to the coronavirus pandemic by the Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2020 (SSI 2020/122). The current amendments to the prison rules are due to expire tomorrow, and the instrument’s purpose is to extend the application of the changes until 31 March 2022 and to revoke others that are no longer considered to be required.

Given the unique operating environment of the prison setting, the Prison Service considers it necessary to retain some of the flexibility afforded by previous rule amendments that were made during the pandemic to ensure the safe running of our prisons for the pandemic’s duration. The Prison Service also considers it necessary to take steps to retain some of the flexibility afforded by previous SSIs that were introduced during the pandemic to ensure that we are prepared and able to focus on any immediate priorities that might arise.

Members will of course be aware that the threat of coronavirus to the operation of the justice system remains. As at Monday this week, there were 136 positive Covid cases spread across nine prisons in the prison estate, so vigilance is vital. I should also say that the Scottish Prison Service’s track record in this area is very good compared with the record of other jurisdictions.

The SSI seeks to retain some of the powers that were taken in response to the pandemic, which gave prison governors the flexibility to introduce precautionary and responsive measures to prevent and limit the spread of the virus and, crucially, to ensure the safety and wellbeing of those who live in, work in and visit our prisons.

Among the key powers that are being retained are powers to allow governors to suspend or restrict, if necessary, in-person visits, purposeful activity and recreation in response to local outbreaks; rule 40A and the extended timescales in rule 41, which provide governors and local national health service partners with the means to comply with Public Health Scotland and Scottish Government advice in relation to the isolation of large groups or individuals who are symptomatic or who have been in close contact with a person who is symptomatic or have been identified as a close contact of a person who is symptomatic, or who are new admissions that might present a Covid-19 risk; and the ability for governors to extend the period for which a prisoner is on home leave for up to 14 days from the normal seven days where prisoners advise that they or someone in their home has coronavirus or has developed symptoms of coronavirus.

The committee will be aware that, in advance of laying the instrument before Parliament, the SPS undertook a tailored consultation in July with stakeholders such as the Howard League, Families Outside and Her Majesty’s Inspectorate of Prisons for Scotland. In addition, an operational review determined that not all amendments to the prison rules would require to be maintained, due to the majority of the estate returning to a regular two-shift model working day in October 2021, with staff attendance patterns that better support a fuller regime model.

The majority of amendments that are revoked by the instrument are related to administrative processes and associated timescales in areas such as internal disciplinary processes and requests and complaints. The rules that are being retained are intended to remain in force until 31 March 2022 but can be revoked earlier if necessary. Consistent with the wider community, the Prison Service is opening up regimes across the estate and its priority remains to continue transitioning to a full regime in alignment with public health advice.

For clarity, the powers in question are therefore proposed as precautionary measures and will be used only if they are felt to be necessary and proportionate. They will be subject to multidisciplinary input and decision making, and will be kept under review if put in place. Senior SPS headquarters staff and governors will continue to work with the Government and NHS colleagues to ensure that the most up-to-date information available is used to inform their response and contingency planning.

Given the uncertainty that exists as we approach another winter, it is essential that the Government ensures that the Scottish Prison Service can rapidly respond to all eventualities of the pandemic, whether nationally or locally. The draft rules provide for precautionary powers that are essential to the SPS’s continuing response to the pressures that prisons face during the pandemic.

I welcome any questions that members may have.

Her Majesty’s chief inspector of prisons has the powers that are set out in statute to inspect prisons and undertake various other elements of scrutiny of prisons, which Mr Fox might want to speak to.

The Prison Service carried out a human rights assessment prior to the instrument being laid. I understand the concerns that committee members have, but I will describe the way that the system has worked over the pandemic. The governors are not tyrants—I am not suggesting that that has been suggested—and they know that the best way of managing a prison is to allow the maximum possibility for purposeful activity, such as visits. That is why they have worked hard on alternatives to visits. That tends to help to make the running of prisons easier. Sometimes, it is not in governors’ interests to restrict such activities, and they would do it only because of health needs.

The safeguards are the conversations that governors have with SPS headquarters. It is possible for legal action to be taken if a governor extends their powers. Plus, there are the inspector of prisons and the European convention on human rights.

The officials might want to speak on any further powers that the inspector of prisons has on the matter.

Yes, and the powers that we seek to revoke, rather than extend, are, in large part, to do with internal administrative and disciplinary processes. You are right in identifying the ones that we wish to extend.

I note from my recent experience at committees that there have been a number of times during the pandemic when the usual expected patterns of development for measures have been curtailed, for fairly obvious reasons. It was probably not possible, even in July, to predict what stage the pandemic would now be at, although when the powers were due to expire was predictable.

The extension of the powers is not being nodded through. I acknowledge that the consultation process was limited; however, I again emphasise that the SPS did not have to undertake it, although it was right to do so. I am also not sure that it is true that the balance was critical here. Officials might have the exact details, but some who were contacted did not respond at all while others said that they had no comment to make.

You are right to say that the issues raised were significant and probably reflect those that members will raise today; indeed, they are the obvious issues of concern. As a result, the Government did not seek to have the proposed extension nodded through. We talked to the Prison Service about it and, on balance, believed—for the reasons that I gave in my opening remarks—that allowing the powers to be extended was the right thing to do.

I understand that the extension runs to 31 March next year but, as I have pointed out, the pandemic has changed in nature and, indeed, is changing all the time. I hope that, when we see the figures today, further progress will have been made. I undertake, if the nature of the pandemic changes again—and if the committee so wishes—to come back before that date next year and further discuss the need for the powers. I am more than willing to do that. However, at this point, the Government has considered the consultation responses and believes that, on balance, this is the right way to go.

It is true that Police Scotland is investing in new technology to support transformative change away from legacy systems and to provide staff with tools that will improve recording of criminal records. The programme of change has resulted in restructuring and regrading of roles in the criminal justice services division, which has the support of trade unions that represent police staff.

The organisational changes are an operational decision for the chief constable, and when I met Unison earlier today, it confirmed its support for them. It is vital that Police Scotland work closely with trade unions and affected staff to support them through the period of change.

The programme for government lays out the fact that we have committed to protecting the police resource budget in real terms for the entirety of this session. We increased the Scottish Police Authority’s resource budget for 2021-22 by 5.2 per cent, to over £1.3 billion. That has eliminated Police Scotland’s structural deficit for the first time since its formation.

We have committed to introducing legislation in this session to change how imprisonment is used, and there will be consultation on initial proposals relating to bail and release-from-custody law this autumn. That will be underpinned by investment in a substantial expansion of community justice, in supporting diversion from prosecution, in alternatives to remand, and in community sentencing, which evidence shows is more effective at reducing offending.

That is not just about reducing crime; we are determined to protect victims, too. This year, we launch our new funding programme to provide practical and emotional support to victims, survivors and witnesses of crimes across Scotland.

No. As I have said, the changes that Police Scotland is making are part of driving the efficiencies that we expect from having a single police force.

In financing, the real source of problems is the Tory Government, which has had austerity budgets for 10 years, has not matched the funding for new police officers that we have provided in Scotland and has not matched the pay for police officers that we have in Scotland. That is the structural problem that undermines our ability to fund the police more.

We increased police funding by £60 million last year and by £75 million this year. That shows that this Government is, unlike the Conservatives, committed to supporting its police force.

That is not really related to the question that was put to me, but if Russell Findlay wants to write to me on the issue that he has raised, I will try to respond, to the extent that that is possible.

The question was about funding and support for the police, which we have provided over successive years. We have more police officers here than there are elsewhere in the United Kingdom; there are 32 police officers for every 100,000 people in Scotland, compared with 23 per 100,000 in England and Wales.

We are the Government that supports the police in this country. It would be good if the Conservatives could—instead of trying to undermine the police, the justice system and even the Lord Advocate—get behind the justice system for once.