Chamber and committees

The officials have confirmed that.

I think that Tom Fox wants to come in on that point. The Government’s lawyers and the SPS have looked at that and are very conscious of taking a human rights-based approach. It is not a hollow threat because, if they were to be in breach of human rights legislation, they could be challenged on that by individual prisoners or their representatives.

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.

Given that the portfolio is split and that civil justice rests with the minister, I ask whether she may speak first. I will come in after that, if that is okay.

I will be brief. Thank you for the invitation to committee. Last week, we both appeared before the Criminal Justice Committee for a similar session. Given that the minister’s portfolio responsibilities cover civil justice, I imagine that you will look to talk to her over the coming months, but I will, as ever, be happy to come and answer any questions on the wider issues.

I will take up one point that the minister has made already about the impact of public health measures on court business. It is an important point because, in discussions about court backlogs—which, as you can imagine, are substantial—some people may have been looking at the issue purely as a criminal justice matter. However, we need to recognise that resources that are essential to our recovery work, such as the judiciary, court staff and court buildings, cannot be stretched in one area without that having an effect on the work in the other area. It is essential that we look at the criminal and civil justice system as one in relation to that, rather than as two distinct issues.

From my part of the portfolio, recent laws on hate crime and protection from domestic abuse orders that were passed in the previous session each in its own way demonstrates ways in which criminal law impacts on our civil legal system. Parliament has taken the decision to split the justice portfolio between two committees, but we know that such a split can never be entirely clean or absolute when we cleave apart the criminal and civil justice system. We will see that over the coming months and years, when we discuss manifesto commitments such as legal aid or the register of judicial interests, which the minister touched on and which come into both areas.

Last week, as I said, the minister and I appeared before the Criminal Justice Committee to discuss our priorities. We both expressed our willingness to work collaboratively with members of that committee when taking forward our proposals for reform. I reiterate that commitment to build consensus where possible to the Equalities, Human Rights and Civil Justice Committee. Together, I believe that we can reform for the better the way in which civil justice works for the people of Scotland.

When the minister and I met the Faculty of Advocates, it expressed a similar concern. Even when putting a case to somebody who is very accustomed to a courtroom, there is the issue of being able to read body language and, to an extent, to lip read what people are saying. There are two sides to it.

As the minister said, there are benefits to remote hearings in certain circumstances. The Faculty of Advocates also raised with us the fact that there should not be a practical logistical reason for somebody not being able to participate. We talked about the provision of additional keyboards and iPads for some people, and what we can do to help with that.

As we go forward, there will have to be awareness of both forms of participation. I do not know about the situation in other parties but, in my political party, we will not be dispensing with the use of online fora, because they enable people to make meetings that they could not otherwise make. Therefore, there will have to be a blend.

The Lord President has a very good and refreshing attitude, in that he is very keen to learn from and to keep the best of what we have done during Covid, but to be aware of some of the shortcomings, one of which Pam Gosal mentioned.

Again, I might rely on Neil Rennick to give you more detail about the priority that is being given to such cases. I am trying to think back to the letter. I have received a substantial number of letters, including from most members of the committee, over the past few months. Because of its unique nature, I think that I recall some elements of the letter. In any event, the first warning that you get in this job is to not comment on specific cases, so I will not do that.

With regard to justice generally, and certainly with regard to Covid and recovery, we are asked often in different fora to prioritise this, that or the other. The act of prioritising one thing means that you deprioritise something else, so we must have regard to that. All I would say is that the criteria for prioritising must, first and foremost, take into account public safety. However, we must have regard—I take it that this relates to your constituent’s situation—to victims and the accused and, as Jamie Greene mentioned, how the matter impacts on them.

Beyond the general comment that we were trying to prioritise public safety first, huge priority has been attached over the period of the pandemic to domestic violence. For example, almost a third, I think, of all cases that are going through the courts relate to domestic violence. On the one hand, that level is worrying, but, on the other, it shows the priority that the system is giving to those cases, and the Parliament deserves congratulation on its ground-breaking legislation in that regard.

We are looking to prioritise in various ways, but we are very conscious of what is deprioritised as a result. If that is not done—if everything is prioritised—in essence, nothing is prioritised. Neil Rennick may want to say more.