Delegated Powers and Law Reform Committee

Meeting date: Tuesday, December 14, 2021

Official Report 590KB pdf

---

Instrument subject to Negative Procedure

Agenda item 5 is consideration of a negative instrument.

---

Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2021 (SSI 2021/446)

An issue has been raised on this instrument, which amends the Prisons and Young Offenders Institutions (Scotland) Rules 2011. As it was laid before the Parliament on 30 November and came into force on 13 December 2021, it does not respect the requirement in section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2021 that at least 28 days should elapse between the laying of an instrument that is subject to the negative procedure and the coming into force of that instrument.

Before I invite comments from members on whether the breach of the 28-day rule was appropriate, does the committee agree to report the instrument on reporting ground (j) for failure to lay it in accordance with laying requirements under the Interpretation and Legislative Reform (Scotland) Act 2010?

No member has indicated that they are not content, so we are agreed.

As well as the explanation provided by the Scottish Government for the breach, members will have seen the correspondence from the Scottish Centre for Crime and Justice Research. Although the letter probably focuses more on wider policy concerns instead of issues that fall within our technical remit, it also refers to the speed with which the changes have been implemented.

Do members have any comments?

With our previous evidence session in mind, I think that this instrument highlights why scrutiny is important. Indeed, the reason for the 28-day rule is to allow some form of scrutiny.

On the face of it, a lot of people will think that the Scottish Government has done the right thing by pushing the instrument through. However, you mentioned the letter that the Parliament has received from the Scottish Centre for Crime and Justice Research, which puts forward a counterargument. That shows why we need to have scrutiny.

We need to tell the Government in no uncertain terms that breaching that 28-day rule, whatever one thinks of the policy, is really not acceptable.

We need to look at how we got here, in light of Mr Simpson’s remarks and the evidence that we took earlier about the Government getting into bad habits, drafting and laying instruments too late even though it knew the policy intent earlier.

I think that my colleague Russell Findlay first raised the issue with Keith Brown at the Criminal Justice Committee on 1 September. The issue was raised again with Keith Brown in the chamber on 15 September. Russell Findlay wrote to the justice secretary on 16 September, and raised the issue again with the Minister for Drugs Policy on 29 September in the chamber and in a further letter on 26 October. The intent to introduce the policy was then announced on 2 November.

The Government’s reason for bringing the policy forward is that a major incident occurred at the end of November. We are perhaps seeing that ministers had been asleep at the wheel to some degree and were only really awoken by Russell Findlay. The 28-day rule could have been adequately covered had the Government introduced the policy earlier.

We could have what I think is potentially a good piece of legislation that introduces a proportionate, timely and practical policy, provided that it does what it says on the tin. However, the situation exposes the fact that we do not have adequate scrutiny if the Government does not plan properly for the introduction of that kind of legislation. For such legislation to have public confidence, the public expect us to have had due time for consultation and that all-important scrutiny.

I support the intent of the policy but there are concerns that it might not do what it sets out to do. I am very much in favour of the principle behind it, but I share Mr Simpson’s concerns that how we got here is not sufficient or adequate.

I have significant concerns with the policy, which I think represents abuse of power and Executive overreach; I also think that there has been insufficient scrutiny and insufficient evidence that it will achieve its desired effects. For all those reasons, this is an inappropriate use of the procedure and should be resisted.

I am inclined at the very least to write to the lead committee on justice policy and to the minister dealing with the drug deaths emergency. The instrument flies in the face of public health approaches to management of the issue, particularly given that no evidence exists that illicit substances have been responsible for any deaths in prison in Scotland—the primary driver of drug-related deaths in prison is prescribed medications. We need to make greater efforts to understand the nature of the problem, rather than jumping the gun, particularly given that the Scottish Prison Service has a problematic issue with deaths in custody at the hands of prison officers.

I believe that we have to take the matter further. I would like the Criminal Justice Committee to be informed of the evidence that has been put in front of us in relation to the failure to bring the instrument into force properly.

I am concerned to read about psychoactive substances arriving, via different formats, for prisoners from outside. However, prisoners have human rights, and I do not believe that all their communications from loved ones outside should be treated in the manner that has been suggested. The matter requires further investigation.

I take on board the points from the SCCJR. At the same time, I think that we need to be able to see, following proper investigation through the Scottish Government, the actual circumstances. I do not think that we have been given that opportunity, so that needs to be looked at.

Colleagues have made a number of points there, for which I thank them.

First, does the committee wish to report that it is not content with the explanation that the Scottish Government has provided for a breach of the requirement in section 28(2) of the 2010 act? As the committee has done previously, I emphasise that the Scottish Government should normally comply with laying requirements to facilitate timely parliamentary scrutiny of such important policy choices.

Secondly, does the committee agree to highlight to the lead committee the correspondence that has been received from the Scottish Centre for Crime and Justice Research?

Finally, does the committee wish to highlight concerns about the speed of change in policy to the Cabinet Secretary for Justice and Veterans, who is responsible for prison reform and policy, and to the Minister for Drugs Policy?

Convener, you might already have covered this, but I think that it is important that we write a quite strongly worded letter to the Government and relevant minister to reflect the committee’s thoughts on the matter. We will report to the lead committee, as is entirely right, but we need to get what has just been said down on paper and send it to the Government.

The final point that I raised was about writing to the Cabinet Secretary for Justice and Veterans, and we will certainly incorporate members’ thoughts.

Is the committee content with those actions?

No member has indicated that they are not content or that they wish to speak, so we are agreed.