Criminal Justice Committee

Meeting date: Wednesday, March 9, 2022

Official Report 767KB pdf

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Subordinate Legislation

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Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment Rules 2022 (SSI 2022/73)

The next agenda item is consideration of evidence on a negative instrument. I welcome to the meeting Keith Brown, Cabinet Secretary for Justice and Veterans, and Jamie MacQueen, from the Scottish Government legal directorate. Allister Purdie, director of operations, Scottish Prison Service, is attending online. I refer members to papers 3 and 4 and I invite the cabinet secretary to make some brief opening remarks.

12:15  

I will take a bit of time to lay out some of the provisions, in order to make it easier for members to ask questions.

The Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment Rules 2022 Scottish statutory instrument extends for a further six months—to 30 September 2022—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).

When I appeared before the committee in September to discuss those powers, I spoke of the need to ensure that the prison service was able to take all necessary measures as we approached another winter during the pandemic.

Of course, neither committee members nor I could have predicted the rapid emergence of the omicron variant only a few months later. That has left no doubt that it remains the case that the Government must ensure that the prison service can deploy precautionary and protective measures as necessary in response to the on-going and unpredictable pandemic.

Therefore, it is essential to extend the flexibility that was afforded by the previous rule amendments, in order to ensure the safety of those who visit, live and work in our prisons. I need not remind the committee that prisons are complex settings, with a significant number of vulnerable people.

While the current rule amendments have been in force, the omicron variant has brought peaks of around 150 cases to the prison estate in January and staff absence rates of 9 per cent. We continue to see Covid cases across the prison estate and, as of Friday 4 March, last week, there were 126 positive cases among 11 prisons.

Consistent with the current SSI in force, some powers are being extended to 30 September. The first set of powers are those that allow governors to suspend or restrict—if necessary and proportionate—in-person visits, purposeful activity and recreation, in response to local outbreaks.

The second set of powers are those that provide for extended timescales in relation to the isolation of large groups of individuals, so that governors and local national health service partners have the means to comply with Public Health Scotland and Scottish Government advice. That includes isolation of those who are symptomatic or have been in close contact with a person who is symptomatic, those who are identified as close contacts of a person who is symptomatic, or those who are new admissions, where isolation might prevent a Covid-19 risk.

The third set of powers are those that enable governors to extend—from the normal seven days to up to 14 days—the period that a prisoner is on home leave, if prisoners advise that they or someone in their home has coronavirus or has developed symptoms of coronavirus.

Members will be aware that, in advance of laying the SSI, the Scottish Prison Service wrote to stakeholders to seek views on the extension of those powers, and those responses have been published on the SPS website.

I am aware that stakeholders and members have concerns regarding the impact on human rights, and that there have been recent calls for transparency in the reporting of why and how frequently the powers are being used in the estate. As I reiterated in September, those powers are being and will be used only as precautionary measures and as a proportionate and necessary response to localised outbreaks in the prison estate. Decisions on their use will remain subject to multiagency decision making and public health advice and remain subject to independent scrutiny by Her Majesty’s chief inspector of prisons for Scotland.

Despite the vulnerability of those in prison to the highly transmissible omicron variant, the powers have not impacted on the vast majority of the prison population since October, and the prison service is providing as full a regime as possible.

In her summary report on the Covid-19 pandemic emergency liaison visit report, which was published in January, the chief inspector of prisons for Scotland commented on the proportionate way in which restrictions have been applied. She said:

“the overwhelming impression was of a calm and orderly atmosphere in prisons, and regimes that were restricted but safe. It was also clear that prisons were working hard to provide more opportunities and reduce restrictions wherever possible”.

I am aware that Teresa Medhurst wrote to the committee last week, with a collation of high-level information on use of the current powers from October 2021 to February 2022, and I am sure that members found that helpful. The information set out the proportionate use of the powers in seven prisons for a variety of reasons in response to local outbreaks. As requested, Ms Medhurst has helpfully committed to provide the committee with further high-level updates on the use of the powers.

Lastly, governors are already under a legal duty to act compatibly with human rights legislation in the discharge of their functions and they can use those powers only where it is necessary and proportionate to do so. It is the SPS position that those amendments have a positive impact on the protection of human rights.

With regard to articles 2 and 3 of the Human Rights Act 1998, the rule changes are designed to help the SPS to prevent and reduce the risks of the virus spreading within the estate. Without those measures being available, the article 3 rights of the prison population could be engaged.

The SPS also recognises the potential that utilising the measures could impact on prisoners’ article 8 rights. However, its view is that the powers can be and are being applied proportionately, in order to have the least possible impact on prisoners’ article 8 rights, and therefore they do not breach those rights.

The draft instrument provides for precautionary powers that are essential to the Scottish Prison Service’s continuing response to all unknown eventualities of the pandemic, whether nationally or locally. The emergence of this winter’s new variant has shown that we cannot be complacent, given the vulnerability of the prison setting to coronavirus.

On the assurances that have been given that the measures are being applied proportionately, their effect, and the effect of other measures, is demonstrated by the levels of Covid incidence in prisons, which are certainly much lower than many of us feared they could be when the pandemic started.

With that, I am happy to take members’ questions.

Thanks very much; that is helpful. Before we go round the room, I will kick off questions with a general opening question on the justification for the six-month extension.

Restrictions are being removed in most other areas and things are opening up, albeit in the context that there are still cases—you mentioned earlier the numbers that we have been seeing in the past week or so. The pandemic is still very much with us, but is the proposal to extend the provisions slightly out of sync with what is happening in other areas? Does it reflect the Scottish Government’s current guidance on coronavirus and restrictions?

I might ask Allister Purdie to come in on this. It is certainly true, as I think that I said in the previous evidence session, that we applied additional guidance, beyond the Scottish Government guidance, through Public Health Scotland and others. There was a huge amount of provisions and guidance. That was done in recognition of the particular circumstance of prisons, which are, of necessity, confined spaces. I was not in Government when the pandemic began, but everybody was very fearful of what might happen to prisoners because of that.

Prisons will have their own necessity for taking action, and they might not always be completely aligned with the general population, which is able to take other measures. That is the general rationale for the extension.

I have a follow-up question on the process of assessment and decision making that governors and others follow. We know that the decisions on imposing these particular provisions are public-health based. I am interested in the process and how it is informed. Can you give us some of the detail of the risk assessment process?

It is best to hear from Allister Purdie, who will be familiar with the internal processes in the SPS. For some restrictions, if prisons seek to extend them, that will come back to Government for approval.

Applications for the use of precautionary short-term measures always come through our incident management teams, and our public health colleagues will advise us on them. The decision making starts there, between the local multiagency team and the governor, and the risk assessment is made to try and put a fire break on the outbreak. That will look at what is required to deal with the outbreak in the establishment, and certain measures will be proposed by our public health colleagues to stem that flow and the outbreak.

That is the decision making process. The governor will look at the risks and the proportionate impact, and consider whether the outbreak can be localised to specific areas, such as a wing. They will then make a dynamic risk assessment based on public health advice. They will then touch base with ourselves in the prisons directorate and talk through what the potential restrictions could be and the likely timescales, including when they will take effect from. The decision will then be made by the governor.

The governor is also tuned in to a national coronavirus response group, which has active information and up-to-date evidence from across the country from public health colleagues about the likely impact that the outbreak could have on their establishment. Based on that, they will make their decision. How long the measures will last will then be kept actively under review by the governor and, centrally, SPS, and public health colleagues. As soon as that proportionality is not required, the measures are stopped.

That is very helpful. Russell Findlay is next and then we will work our way round the room.

The chief inspector of prisons has raised a concern about a lack of communication from the SPS in respect of the use of these powers and the lack of an ability to properly externally monitor the decision making and the implications of what happens. Is that something that can be improved upon? That is a question, first and foremost, for Mr Purdie.

I will just say first that, in my opening statement, I read out the testimony from the chief inspector and it was extremely positive about the way that the prison service is applying these regulations. Of course it should be the case that she should have the information that she requires. Allister Purdie may want to add to that.

We have regular updates with the chief inspector following any outbreak and we are always open to learning. Throughout the pandemic, we have tried to integrate lessons learned into all our practices so that we minimise the impact on our population.

We have open meetings monthly with the chief inspector’s team and there are regular daily inspections by the independent prison monitors. We are open to learning about any ways in which we could improve on that.

Okay, thank you. Fulton?

I do not have any specific questions that have not already been addressed by the cabinet secretary. I have a thought, rather than a question. It is obviously not ideal to be in a situation where we are looking to extend these things but I think that we are all in the same boat there. We are living in difficult times and, as was highlighted at the start, the pandemic is still with us, so, in certain areas where people are living closer together, such as prisons, we still need to err on the side of caution.

I have some fact-checking questions. First, what is the current prison population in Scotland? I know that it changes daily but what is the latest snapshot?

Also, either as a number or a percentage, what percentage of those inmates currently have Covid? We know the figures for wider society; do we know the figures for the prison population?

I think that I mentioned the figures on Covid cases, at least from 4 March, in my opening statement. You can check back and confirm that.

I will take a stab at the current prison population; the latest figure that I saw was 7,502 or 7,503, but I am happy to be corrected on that. If I can just look back at my statement, I can tell you the number of inmates who currently have Covid—unless you have that figure to hand?

I do not—it is not a rhetorical question; I do not know the answer. I am sorry that I missed the figures you gave earlier.

Sorry, I meant Allister Purdie—I thought he might have the figure to hand, but it is in my statement—

I have the figure, cabinet secretary. It has actually increased since the briefing that you had. It was 126 cases; it is now 159 positive cases, as of yesterday, so the figure has increased again this week.

On the prison population, you are absolutely right—the figure has sat at roughly 7,500 and just over for the past month.

I will maybe continue with Mr Purdie, as he has all the figures. My apologies to the cabinet secretary for not jotting down the figure earlier but I am glad to get an updated number.

How does that figure compare to the number of cases in wider society? Can you contain cases more easily in a prison environment or is it more difficult, due to the nature of the estate?

What effect has any relaxation of some of the restrictions that were needed during the temporary Covid measures—such as those around visitation or people being out on licence or temporary release—had on the relativity of the case rate versus the population? Are we seeing a marked proportionate increase in the positivity rate as a result of the relaxation of some of those restrictions?

12:30  

I will provide some context. Public Health Scotland’s advice on prisons is that a stepped-up approach should be taken compared with community restrictions. We have kept in place many of the restrictions and other measures because of the high-risk nature of the environment. For example, measures on distancing, isolation, hygiene and testing have been of a higher standard than those for the general population. We have maintained many of those measures and procedures in an attempt to restrict the virus from spreading when the transient population moves from the community back into custody, because that is a key risk area.

On Jamie Greene’s question, significant risks are still posed because of the transient population moving through the criminal justice system back into the community or back into prison. Since March 2020, when there have been variants—omicron, the Kent variant and the variant before that, for example—the peaks and troughs have largely been in line with those for the general public.

That is helpful, as was your analysis of the differences.

I have a wider question for the cabinet secretary. As a society, we are—to use the phrase that is used—learning to live with Covid. As you said, there were 11,000 cases yesterday, but we are heading on a path that involves moving away from restrictions and, we hope, life being back to normal in as much as it can be, although Covid will still be around.

That does not seem to be the case in the prison environment, where higher levels of restrictions are being maintained relative to those for wider society. Is that a proportionate use of temporary powers, given that we in society are no longer in a temporary emergency and are simply living with a long-term pandemic, with the virus becoming endemic?

It is, for the straightforward reason that there are, literally, boundaries that apply to the prison estate that do not apply to wider society. It is true to say that no society had their public estates, whether it was their schools, hospitals or prisons, as they would have wanted them to be, in relation to ventilation and so on, to deal with a pandemic. That is no less true for the Prison Service. Despite the substantial modernisation that has taken place over the past 15 to 20 years, some of the prison estate is still Victorian. The Prison Service cannot get past that constraint. In wider society, we can change our behaviours or change where we go in a way that prisoners and prison officers cannot. That is why there are higher levels of restrictions in prisons. The consequences of one person getting the virus in an enclosed environment such as a prison can be much faster transmission.

I do not know whether Allister Purdie wants to add to what I have said, but that is the main constraint that I see. That is why, throughout the pandemic, as he said, we have required prisoners to meet a different standard. That approach has been really successful, and I acknowledge the work of the Prison Service and the pressure that staff have been under during the pandemic.

We have been trying to balance the four harms. We have been trying to provide people with a meaningful regime involving activity and addressing offending behaviour while allowing people to be as free as possible in a constricted environment, in which households are much bigger than they are in the community, so the spread can be significant. It is about balancing the harms and, as the cabinet secretary said, ensuring that the safety of everybody who lives in, works in or visits the prisons is at the front of our minds.

I have a final question. Will there be any improvement in transparency relating to how frequently the powers are used and the impact of those powers as they are used on a case-by-case basis, given that the powers are used in different ways in different establishments? HMIPS and other stakeholders have written to us to express concern about clarity and transparency in how and when the powers were used. If the use of such powers remains a feature, will transparency be improved, particularly for the benefit of the families of those who are in prison?

That is an entirely reasonable request. It is perhaps a bit distinct from the point that Mr Findlay raised about the chief inspector not having the information that she was looking for. I am happy for what Mr Greene suggests to happen. Obviously, when lockdowns happened very unexpectedly, it was more difficult to achieve that, but there should now be no reason for not having the maximum possible transparency. We are talking about prisoners, but their rights are being affected, so the call for transparency is legitimate. I will certainly do what I can, and I am sure that the SPS will, too, to ensure that we have that.

You spoke about human rights considerations. I presume that, in particular, you are thinking about article 3 of the European convention on human rights and whether the requirements amount to “inhuman and degrading treatment”. Will you outline what you can do in your role to ensure that the Scottish Prison Service and, in particular, governors take proportionate action? How can more resources be put in to deal with the transparency issues that Jamie Greene spoke about, given that the Scottish Prison Service has raised systems issues, and so that there is an awareness in prisons of the importance of human rights considerations?

I believe that prisoners’ rights figure in the minds of not just governors but individual prison officers. You mentioned some of the assurances that we have on that. We have the inspector, who is able to challenge where she believes that prisoners’ rights have not been observed. As Jamie Greene has asked for, we have the assurance on transparency to ensure that, when such measures are introduced, that is logged and people know when it is done and why, as well as when the measures finish and the reasons for that.

The Prison Service has done different things to try to mitigate the impact of that. I am sure that Allister Purdie can set this out more effectively than I can—although Jamie MacQueen is the expert on the interplay between different rights—but, for example, in-cell telephony has been a big boon to prisoners. Of course, that is not without its issues, either. That shows that there has been a recognition that such extraordinary measures impact on prisoners’ rights, and we have tried to ensure that the impact has been mitigated. There are any number of checks on that. If we can increase the checks by responding to Jamie Greene’s point about transparency, we should do so.

Those are the reassurances that I would give. It might be worth hearing from Jamie MacQueen, who, like you, I am sure, is the expert on the interplay between the rights that are affected.

One thing that I would highlight is the Scottish Government’s guidance on the management of Covid in prisons, which is produced with Public Health Scotland and the SPS.

On article 3 and the human rights aspects, there are tensions between prisoners having access to purposeful activities and protecting them from the virus ripping through prisons, or at least behaving in a less controlled way. That balance always has to be in the mind of the decision maker, including governors, because they are bound to act compatibly with the convention.

What is the cabinet secretary’s understanding of how prisons differentiate between different types of prisoners? For example, during Covid, children in prison have been subject to the same measures to combat virus infection as adults have. How do the prisons balance those rights and look at individuals, particularly those who might be more vulnerable?

I will make a general point before I go on to the specific example of children or the under-18s. As I am sure committee members will know at first hand from visiting prisons, especially from having been to Saughton prison, there is a big balancing act to be done, not just between vulnerable prisoners of different kinds but sometimes between competing serious organised crime groups. The Prison Service is very good at doing that, although it is not without its tensions and problems. That includes looking after the rights, safety and health of vulnerable prisoners.

The number of under-18s in prison is much smaller now; I think that we are down to approximately 14 from perhaps 200-plus in 2006. However, the fact is that they are put in prison by the courts—that is who decides that they go there rather than to an alternative. It might be best to hear from Allister Purdie on this, but my understanding is that the same restrictions will apply. I would point out, though, that young people are based at Polmont, which is not currently full—far from it—so that might give some latitude.

A very small cohort is being held in Polmont, and the capacity at that institution allows us to manage a virus outbreak there more effectively to ensure that we do not impose the additional restrictions and precautionary measures that we would have to in other establishments.

However, as the committee will know, the virus does not discriminate. It has gone through the whole prison population and has impacted on the young people in our custody in Polmont, who are in open conditions most of the time. When we had an outbreak, the virus spread to all 16 or 17 who were there at the time, but the capacity at Polmont allowed us to manage that outbreak effectively.

As the high-level information that Ms Teresa Medhurst provided to the committee in her letter of 3 March has, I hope, outlined, Polmont has not been one of the establishments for young people where the virus has had a significant impact. We are, however, always alert to putting in the same protective measures for young people as we would in any other classification of prison across the estate.

We have been given information on how the powers have been used since October 2021. As the cabinet secretary knows, the buck stops with him. To what extent is he advised of the steps that have been taken so that he can give political oversight of the situation and, if he has concerns about how the legislation was being implemented, take action or express those concerns?

We get regular updates that go down to individual prison level. During the worst of the pandemic, they set out the increases in individual prisons and the movement between wings when people had to be isolated. The updates that I get also mention new prisoners coming in and give some background on where the virus is thought to have started and whether it was brought in by someone new coming into the prison. They give details of the number of prisoners who have been vaccinated once, twice or three times, and details about levels of testing. They also give levels of testing among prison staff. They are pretty detailed, regular accounts.

I have asked lots of questions that might have encroached into other systems that the Government has put in place for the general management of the pandemic, but apart from asking for more information, I cannot think of any time that I have had to intervene to impose a political steer on things.

Sure. So when the powers are used in a particular establishment, you are informed.

I am not informed of every single use of every single power, but if, for example, a wing has to be closed down or people have to be isolated in that way, or if there is a move towards double shifting, which means more purposeful activity is taking place, I am advised of those things.

Thank you.

Before Rona Mackay asks the committee’s final questions, cabinet secretary, I just want to pick up on what you said about self-isolation and some of the measures that are required in response to that. According to Scottish Prison Service statistics from a couple of days ago, 1,040 prisoners are self-isolating. In the context of the overall prison population, that figure seems quite high. Does that present additional challenges for the day-to-day running of prisons? Perhaps Mr Purdie will pick that up.

Yes, Allister Purdie might be best placed to answer that. However, the number, which Allister will be able to confirm or otherwise, includes quite a high level of remand prisoners, for reasons that we are all aware of, as well as people moving in and out of prison. The Prison Service is more susceptible to and not at all immune from the wider increase in the figures that we have seen in the past week or so.

12:45  

The number for those who are isolating is correct. It is simply a result of households being larger and precautionary measures being taken to make sure that any close contacts who are either symptomatic or asymptomatic are isolated for as short a time as possible so that we can keep households safe. That can cause problems, because it clearly restricts the activity of some individuals in the prison on that day or for a number of days until we can make sure that they are safe, the virus has been cleared and the area is as safe as it can be. With the numbers that we are talking about, self-isolating causes operational difficulties.

Our public health guidance for prisons places a burden on us. Our approach to isolation is different from that in the community, simply because prisons are high-risk residential areas, and we have to protect people’s rights to health, safety and humane treatment under the human rights articles that we talked about earlier. We do have high isolation numbers just now.

That is helpful, Mr Purdie. Rona Mackay has some final questions.

My questions were very much along the same lines as those that Katy Clark asked on purposeful activity and exercise, and the cabinet secretary has answered most of them. However, I note that the briefing from Teresa Medhurst shows the differences between the prison estates, and they seem to relate to staff and staff absences. Perhaps Mr Purdie can confirm that on the record. Secondly, has any thought been given to drafting in retired prison officers to cover situations temporarily so that more activity can be done?

As you will see from the outline high-level information, acute numbers of staff were off at peak times, including during omicron. We transferred staff from other establishments that were not experiencing outbreaks, but the risk of that approach is that we might well be exporting the virus from one establishment back into the family home or the community. We did that kind of transfer on several occasions, and we continue to use it as one of our contingencies so that we can keep establishments functioning and do not have to take precautionary measures and set aside the purposeful activity or the visits that are so important to the rehabilitative programme for the people who are in our custody and their families.

That is fine. Thank you.

That brings this agenda item to a close, and I thank the witnesses for attending. We will have a short break to allow for a changeover of officials.

12:47 Meeting suspended.  

12:50 On resuming—