Chamber and committees

I want to add two further points. It is clear that if a judge deems that someone merits a two-year sentence—in other words, two years in custody—they will direct that they receive a four-year sentence, in the knowledge that automatic release will allow them to leave custody after two years. The same would be true in relation to someone whom a judge thinks merits a three-year sentence—they would give them a six-year sentence, knowing that, as the law stands, they would be out after three years anyway.

Consideration needs to be given to the practicality of the law as it is at the moment. It is unclear why there is not parity between short-term and long-term sentences. We would have found it very helpful to get an analysis of the data on reoffending relative to sentencing, which is a subject that I have always been intrigued by. I presume that there is some form of parabola or gradient—we have certainly heard about this anecdotally—around the ability to rehabilitate someone in custody.

Regardless of what your views on such sentences are, the Government has declared that very short sentences are in some ways useless and do not provide the best outcome from a rehabilitation point of view. There is academic evidence that shows that time is needed in order to rehabilitate people, and very short sentences have just as poor outcomes.

It would have been helpful to understand why the cut-off has been set in the way that it has and why the promise that was previously made to analyse and change that, if required, has not come to pass. I hope that that has nothing to do with the size of the prison population, because emptying prisons through automatic early release is not the way to address that issue. There are serious questions to be asked about how much rehabilitation can take place in a very short period—14 months, say—in custody.

In my view, the approach should be evidence and data led. Unfortunately, the committee has struggled to get data on the issue. If the statistics show us that there is a cohort of people who are released after between 12 and 24 or 36 months in custody who have a higher reoffending rate than prisoners who cross over the line of 50 per cent automatic early release, surely the Government needs to be mindful of that. Once again, though, we have struggled to get any meaningful data on that.

Given that the bill is all about changes to bail and release, it provides the Government with a good opportunity to justify the status quo, or at least to make a commitment to change it, as it has done hitherto.

There is a massive difference between automatic release and eligibility for release, and I feel that these decisions lie best with the Parole Board. The premise of the amendment is that people could still be released after serving 50 per cent of their sentence. That is not up for argument, whatever your views are on the policy—

—but it would be subject to the extra level of test that the Parole Board was comfortable with it. I appreciate that there would be implications for the Parole Board and it may be unhappy with those, to an extent, but it would add another level of scrutiny to the process.

Automatic release means that the person just walks out the door halfway through their sentence. Given the data that we have on reoffending by those prisoners, the amendment would add an extra level of check and balance to that release. Prisoners would still be eligible for release halfway through their sentence, if suitable.

All the terrorists and sex offenders would burn to death, but everyone else would get out. It is such an odd scenario, and the explanation does not make sense. The emergency power is to be used in a life-threatening situation, and I think that we probably agree that it is sensible for the Government to have that power—

When the Government lodged its amendments in this group, we were minded to support them, because they seemed to improve the legislation and provide further clarification. However, it cannot go unnoticed that amendments 21 and 23 to 27 are opposed by the organisations that work with victims day in and day out. That is notable.

I suggest that the Government should do something unusual by not moving the amendments if there are problems with them and instead taking them back to the drawing board. We have been asked throughout the two weeks of the stage 2 process not to move amendments that are, on the face of it, trying to do the right thing but might be problematic. This is an opportunity for the Government to do exactly the same.

Although an explanation has been given quite late in the day, it is of notable concern that those to whom this section of the bill will apply have problems with the amendments as drafted. One approach would be to agree to the amendments and to fix this at stage 3, but it seems to me that it would be better for the Government to revisit the issue after further consultation.

I do not doubt that, and I do not doubt the cabinet secretary’s commitment to consultation and engagement ahead of stage 3, but we have to decide whether to vote for the amendments here and now. It would be easier if we did not have to do that, given that the position of those organisations is clearly contrary to that of Government. It would be better if the committee were not put in that position. Nonetheless, we will support the amendments because of the promise, which is now on record, that the Government will look at them again ahead of stage 3.

The problem is that it is not clear cut. The pandemic was an emergency, which is why we passed emergency legislation. It is interesting that the cabinet secretary said that it is not a power that she would ever want to use. The problem that I have, irrespective of your views, is that previous cabinet secretaries have used the power to release prisoners for emergency reasons. When that power was used, we saw the consequences. That is what I will come on to next.

Under the coronavirus legislation, the Government—not this cabinet secretary, but this Government—did use that power to release prisoners. The Scottish Government released 348 prisoners in early May 2020 under what was then emergency legislation. Of the 348 prisoners who were released under that emergency legislation—we all understood what an emergency was in that scenario—142 went on to reoffend within six months of release. That is perhaps why victims organisations have such an issue with it.

What is worse is that none of the victims involved in any of those cases was informed of the emergency release. The use of that power was debatable in that scenario, and the effect that it had on the wider community was debatable. Therefore, it is all very well saying that it is just a catch-all emergency power that we hope we will never have to use, but the Government has used it and might use it again.

I believe that the power was perfectly suitable under the Coronavirus (Recovery and Reform) (Scotland) Act 2022, which I understand is limited to run until 2025, but, if the Government wants that power for longer, it can come back to Parliament and ask for that or make it permanent if it wishes. This bill is not the place to put in such a power, but, if the Government insists on having it, the very least that it can do is be forthcoming to Parliament and make sure that there is some form of scrutiny. At the moment, there is none; it simply does not exist.

For the protection of future Parliaments—whether I am in them or not is irrelevant—if there is to be such a sweeping power, knowing the effect on the community and on victims of releasing hundreds or potentially more prisoners, the very least that the Government can do is ensure that there is some scrutiny, debate and, ideally, a vote. In this case, that would be done through the affirmative procedure, as the Government already details. That is why my amendment 93 would remove the rest of proposed new section 3D of the 1993 act. I also support Katy Clark’s amendment 38, which I note from the groupings document Collette Stevenson supports, too.

The wider point, though, is that what is notably absent is any duty to consult a victim about the release of an offender. As you rightly said, the VNS is really the only mechanism. I know that the VNS is subject to review, but we feel that we have an opportunity—via future amendments if not the ones in this group—to put something about victims’ consent in the bill. It is not a blanket proposal—every victim will deal with it differently.

This is all about release planning, and clearly our intention is to ensure the on-going safety of the victim after the offender’s release. We have widely debated that issue, but there are also advantages to the offender in knowing the parameters around the conditions for their release. It might even ensure that the offender does not inadvertently breach licence conditions, which we have heard is sometimes the case; indeed, we saw examples of that in the hearings that we attended. There is a significant advantage to offenders, as well as victims, in the victim being involved in the process. At the moment, it is a bit woolly around the victim’s involvement. I hope that the Government can find a mechanism to ensure that there is a duty to consult.

I find amendment 1 very helpful. It is not a huge surprise that the Government has pushed back on it. In my experience, from working on many bills, any reporting requirements that members propose to add are generally rejected by the Government, although such requirements sometimes appear. I hope that the member will move amendment 1 or at least bring it back at stage 3. It would not place an onerous task on the Government. The timescale of one year after the legislation is introduced is on the tight side, but that could easily be amended at stage 3 to two or three years.

I do not buy the rebuttal that post-legislative scrutiny is the answer to the issue, because that generally takes a number of years and it is not always done well, as committees are extremely busy.

Amendment 1 would require the Government to come back to Parliament with a report for the reason that Katy Clark rightly mentioned, which is the very substantial worry that the financial memorandum has massively understated the costs to social work. As a committee, we have heard numerous pieces of evidence about social work being under pressure. The amendment would be a welcome addition to the bill, and I hope that the member will press it.

Thank you. I forgot to mention the lack of data that is available to us throughout the process, and you have just prompted my memory. That is a real issue. We should be making legislation that is driven by good data, by which I mean relevant qualitative and quantitative data. The biggest problem that we had was understanding what the prison population looks like. Are people there for too long? What types of crime profiles are people in prison for?

If a pattern emerged—for example, that people who had committed quite low-level crimes had been remanded—there would be valid questions to ask of the judiciary about their decision making using the current bail test. However, we did not have such evidence presented to us, and there certainly were no patterns emerging, other than that we know that there are delays to eventual trials. There is a lack of positive information to show that the current rules do not work and are leading to a high remand population, which is why we are so nervous about the change to the bail test. We are not opposing it for the sake of opposing it.