Home Detention Curfew Licence (Prescribed Standard Conditions) (Scotland) (No 2) Order 2008 (SSI 2008/125)

Official Report 27 March 2008 – in the Scottish Parliament at 9:15 am on 27th March 2008.

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Photo of Alex Fergusson Alex Fergusson None 9:15 am, 27th March 2008

Good morning. The first item of business is a debate on motion S3M-1599, in the name of Bill Aitken, on the Home Detention Curfew Licence (Prescribed Standard Conditions) (Scotland) (No 2) Order 2008.

Photo of Bill Aitken Bill Aitken Conservative

As one of my former council colleagues famously said:

"It's like déjà vu all over again."

I must confess to being somewhat irritated at having to debate the order for the third time. Two weeks ago, by a clear majority, it was decided that we would not proceed down the route of the order. I must say that I was genuinely surprised by the vote, but I convinced myself that our Liberal Democrat colleagues had been persuaded by the eloquent arguments of John Lamont, by the pithy common sense of Paul Martin, by the personality of Pauline McNeill and by the fact that what I said was so obviously common sense that even the Liberal Democrats could understand the position. It seemed that, rather than the principled stand that I had anticipated, at the last moment they had seen the rightness of our case. However, it turns out that it was ineptitude. So, we are back again.

The arguments remain, and those that are being advanced for the third time by the Cabinet Secretary for Justice are simply unacceptable. Yesterday Kenny MacAskill had a chance to stand up for the victims in Scotland's communities, and he failed. Today he has a similar chance, but I anticipate that he will, sadly, fail again.

The cabinet secretary stands four-square with the Scottish Prison Service. He has backed it time and again, but in his darker moments he must surely ask himself how on Earth we got into this position. How on Earth did we dispose of one facility before another was ready, creating—to use his words—a "crisis in our prisons"? The fact is that the system was not properly thought through. Having first failed to address the problem, the cabinet secretary has repeatedly come up with a solution that is not the answer.

I was asked in the previous debate what my solution would be—I have suggested some possible solutions on a private basis. What I cannot understand is why there was no contingency planning. In this life, stuff happens—fire or storm damage, for example, could mean that a facility or part of a facility is taken out of use. What emergency provisions or contingencies are in force to cover for such an eventuality? I asked parliamentary questions on the subject a couple of weeks ago. I have generally found Mr MacAskill's department to be extremely efficient in replying to such questions, but the silence from it on that matter has been deafening. I cannot be persuaded that either he or his predecessor had the appropriate contingency plans on the shelf, ready to dust down if such a situation arose.

I come now to the nub and the principles of the argument. Is it appropriate that we should follow the course that has been proposed in the order that I seek to annul? It is not. As I have said before, prison has a number of functions: punishment, protection of the community and deterrence. Under two of those headings, the plans manifestly fail.

As Mr MacAskill will know from when he had a real job, the criminal classes speak to one another. The word will get round soon enough that people can get out after a quarter of their sentence, albeit with a tag and restrictions placed on them. Let us consider those restrictions. Can any of us be confident, after the results of the Foye inquiry, that the restrictions will be adequate? At least if we go down the route that I am suggesting, the restrictions on those who are released would be placed by the Parole Board for Scotland rather than by the Scottish Prison Service, which would be a more effective way of working than what Mr MacAskill has in mind. [Interruption.] The trumpets may sound from the telephones on the Government front bench, but the fact remains that the cabinet secretary is failing in his duty to apply the necessary deterrence.

There is also the question of public protection. I accept that the Foye case is probably an extreme example, but nevertheless 21 per cent of those who are released fail to comply with the terms of their release. We cannot be comfortable with that. To suggest that people who are further down the road of criminality than those who are involved in the scheme at present are unlikely to reoffend when released demonstrates a disturbing naivety.

Eventually, something terrible will happen, and at that point Mr MacAskill will have to take personal responsibility. He made an apology in respect of the Foye case, although he had no reason to apologise personally—I do not accept that he was personally responsible for what happened. However, if he puts through the legislation today and something happens, he will have to answer to Parliament. I warn him here and now that he will be held to account for that.

We must consider how the prison system is operating. We have continuing concerns about the open estate, which I had hoped might have been addressed in yesterday's related statement and questions. We must accept that the only solution for many people is that they should be kept locked up for the full duration of their sentence. We have always conceded that early release in certain circumstances—when it is deserved—is appropriate, but not to the extent that Mr MacAskill and the former Administration have sought over the years.

The order is a disastrous move. It is likely to cause great difficulty and may well end in tragedy. On that basis, I have no hesitation in moving the motion in my name.

I move,

That the Parliament recommends that nothing further be done under the Home Detention Curfew Licence (Prescribed Standard Conditions) (Scotland) (No. 2) Order 2008 (SSI 2008/125).

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party 9:22 am, 27th March 2008

Clearly, I disagree with Mr Aitken, and I ask Parliament not to support the motion to annul the order.

Mr Aitken asked

"how on Earth we got into this position".

Part of the answer is that, during 18 long years of Tory rule in this country, not one new prison was built by the Conservatives. Their cant and hypocrisy about the importance of prisons is undermined by their abject failure to take action. They are culpable in part for the crumbling estate that we face.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

Not at the moment.

The order forms part of a package of measures that we hope to put in place to ease the on-going inherited problem of overcrowding in our prisons. We are using the flexibility to extend the home detention curfew scheme that was built into the Management of Offenders etc (Scotland) Act 2005 by the previous Administration.

We need prisons to lock up dangerous criminals, and we have to allow the SPS to work with those criminals to rehabilitate them for a return to society. However, the SPS is dealing with record numbers. Yesterday, the prison population was 8,001, with 379 of those on HDC. That makes it harder for the SPS to do the job that it needs to do with serious offenders.

We are tackling the problem. Unlike the Tories, we have announced three new prisons since we took office—in less than a year, when they had 18 years in government. We have also announced a major penal policy review, led by Henry McLeish, to come up with new and effective ideas for reducing reoffending through better managing the transition and reintegration of prisoners back into the community. That is vital to breaking the cycle of reoffending that causes many of the problems that we face in Scotland.

The order commencing section 3AA(1)(b) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 came into force on 21 March 2008. As of that date, the Scottish ministers have had the power to release long-term prisoners on home detention curfew licences. The Home Detention Curfew Licence (Prescribed Standard Conditions) (Scotland) (No 2) Order 2008 sets out the standard conditions that are to be imposed on both long-term and short-term prisoners when they are released. It replaces an earlier order that dealt with conditions for short-term prisoners only. Appropriate conditions must be set as a condition of release, but if Parliament annuls the order, no standard conditions will be imposed automatically on all long-term prisoners. That surely cannot be what Mr Aitken intends. Conditions will need to be set in each case, but that will not prevent the release of long-term prisoners on HDC.

Offenders who are considered for HDC must have been recommended for release on parole at the halfway stage of their sentence by the Parole Board. They will be due to be released on licence—they are to get out anyway and are simply awaiting authorisation as the approval works its way through the system. The scheme allows them to be released on HDC pending their being released on licence for which they have been approved. If they breach the HDC, they will jeopardise not just release on HDC but their parole.

My purpose in asking Parliament to approve the order and to reject the motion to annul it is to give transparency to the process by affording Parliament the same opportunity to agree prescribed standard conditions for long-term prisoners as it had in 2006, when it agreed prescribed standard conditions for short-term prisoners.

I assure members that prisoners who are serving long-term sentences cannot be released on home detention curfew unless the Parole Board has already recommended their release at the first parole qualifying date, and they also subsequently meet the current assessment criteria for HDC. I say to Mr Aitken for the avoidance of doubt that convicted sex offenders will be precluded from applying, so references to Mr Foye are therefore utterly shameful and entirely erroneous.

Because of the way in which the parole process and the notification of the Parole Board's decision operate, the maximum time a prisoner could spend on HDC would be about 10 weeks. In reality, we estimate that the period spent on HDC is likely to be nearer six weeks.

Just as with release on parole, the specified licence conditions require the prisoner to be subject to local authority social work supervision during the period of HDC. Those supervision arrangements will continue during the subsequent parole period. In addition, HDC licence conditions will take into account any conditions that the Parole Board has recommended for the parole period and can include any conditions that ministers consider to be appropriate.

All prisoners released on HDC will be electronically tagged and subject to a curfew condition requiring them to remain at a specified place for about 12 hours per day. The Scottish ministers also have powers to revoke an HDC licence and to recall prisoners to custody if they fail to comply with any licence conditions. Modelling indicates that such measures will free up capacity of about 50 places in the prison system. As I have said before, those 50 places are very much needed as a result of years of neglect.

Management of the problem includes our being flexible and using the tools that are available to us, such as HDCs, rather than hectoring the governor of Barlinnie to take just anybody who is sent to him irrespective of the consequences. We have to protect the public and allow the SPS to do its job. What we propose today gets that balance right.

My offer to review the HDC scheme stands. The review would go further than the sunset clause that is requested by Labour members, which would impact only on the continuing operation of standard conditions. I therefore ask Parliament to reject the motion to annul the Home Detention Curfew Licence (Prescribed Standard Conditions) (Scotland) (No 2) Order 2008.

Photo of Pauline McNeill Pauline McNeill Labour 9:28 am, 27th March 2008

"Third-time lucky", as BBC headlines said this morning. It would be amusing if it were not so serious. This extraordinary groundhog day debate will contain exactly the same points that we made two weeks ago, but this time the Liberal Democrats will perhaps remember to leave their offices in time to vote. For the avoidance of doubt, I inform Liberal Democrat members that when they see Bill Aitken's name for the Scottish National Party on the Business Bulletin, they should vote no.

The will of Parliament has already been determined, but it seems that procedure allows for reversal of the will of Parliament because of a few mistakes. Labour's position, however, remains the same. We introduced the principle of home detention curfew as part of a package of measures that included the upgrading of the prisons estate and the Management of Offenders etc (Scotland) Act 2005 for short-term prisoners serving sentences of four years or less to be released no earlier than 135 days into their sentence.

The measures that we are being asked to support today extend far beyond those Labour proposals. We are being asked to approve the order immediately for the single purpose of reducing the prison population rather than as part of a package of measures. I am astonished by the cabinet secretary's logic that such prisoners would get out anyway. With that logic, where would we draw the line?

The order is not couched in promises of a commitment to a date for opening Low Moss and there is no mention that 700 new prison places at Addiewell will be available in January. There are no reports from the cabinet secretary that he has insisted that the SPS must get its finger out and build those new prisons. I am sure that the Liberal Democrats will join me in saying that the commitment to build three new prisons was well down the line under our Administration and that it is wrong for the cabinet secretary to claim that as his own work. What the order proposes is a rush job. I now begin to wonder whether it is the Government's principled position that long-term offenders will be included in a scheme that is still in its infancy.

The proposals are significantly different to ours because they will include more serious offenders and will make all offenders eligible for early release for longer—for up to six months. As I said two weeks ago, someone who is serving six years could be out in two and a half years. Does the cabinet secretary really believe that he has the general public's support for extension of the scheme? I think not.

I reiterate that Labour has made a fair and reasonable offer to the Scottish Government to support a short extension to the HDC scheme until the opening of the new prisons, whenever that might be. We are balancing the public interest with the problem of overcrowding, which we accept is a real problem. We know about the cabinet secretary's health and safety concerns, but as a responsible Opposition, we believe that we offer an option around which all parties can unite. We will not, however, provide a blank cheque to the Government, as we are being asked to do, for a scheme that is in its infancy and is yet to be evaluated. We demanded a sunset clause in the legislation on the opening of the new prison at Addiewell and that is what we will vote for at decision time this evening. That offer remains on the table.

Your refusal, cabinet secretary, to work with committee members who adamantly oppose your proposals for good reason, is disappointing. Indeed, your refusal to accept a compromise with Labour and the Tories is not in tune with the promises that you made as a minority Administration.

Win or lose tonight, cabinet secretary—we will see what happens—we will demand that you stick to your promise and that you repeal the order when the 700 prison places become available. Whether you win or lose this evening, I want you to commit to that repeal in your summing-up speech.

Photo of Alex Fergusson Alex Fergusson None

I remind members not to use the word "you" unless they are referring to me.

Photo of Margaret Smith Margaret Smith Liberal Democrat 9:33 am, 27th March 2008

I was happy to support the introduction of home detention curfews as part of the Management of Offenders etc (Scotland) Act 2005 when it was introduced by the Labour-Liberal Democrat Government and I am content to support its development through the order today. I am very much looking forward to voting against Bill Aitken's motion to annul the order—it is very helpful to have his name on the Business Bulletin today. I have been on an intensive training course on how to vote for two weeks and I think that I am now up to the task.

Public safety lies at the heart of any decision that will be taken by the prison service or Parole Board to release a prisoner on licence. We know that large numbers—40 per cent—of those who apply for HDC are not granted it. We also know that 69 per cent of people successfully abide by the terms of the curfew and that of the 21 per cent who breach orders, the vast majority commit only minor breaches. Of the 3,000 people who have been released on HDC, fewer than 1 per cent have offended while on the scheme. That seems to suggest that although the risk assessments that are undertaken by the SPS with community assessments from the local authority social work departments will never be perfect, they are working reasonably well. Bill Butler accepted that point in committee.

As we have heard, the criteria for the scheme already exclude sex offenders and other serious offenders.

Some 340 people are currently on home detention curfew, which has a positive impact on overcrowding in the prison estate, but it should also be looked at as a positive option for prisoners who are assessed as being low risk so that they can reintegrate into their communities, managed by the SPS, with community assessments.

The order will allow the release of prisoners who have been recommended for release at the first parole qualifying date by the Parole Board, having served half their sentence, if those prisoners fulfil the criteria for release on HDC. I note that the cabinet secretary has suggested that that will mean that the average time that they spend on curfew will be six weeks.

The order enables standard conditions to be prescribed automatically for any long-term prisoner who is released on HDC licence. The standard conditions for long-term prisoners who are released on HDC are the same standard conditions that are used when the Parole Board for Scotland recommends release on parole, and they take account of public safety and reintegration into the community.

The public need to be reassured that when long-term prisoners are released proper safeguards are in place and risk assessments have been carried out as effectively as possible. Long-term prisoners are more likely to have committed more serious offences, so a decision to release a long-term offender must be considered seriously. However, it could be argued that a long-term prisoner who breaches an HDC and is taken back to prison has much more to lose when the breach is taken into account in decisions about parole.

The cabinet secretary has committed himself to a review of HDC early next year, in the wake of the opening of the new prison at Addiewell. I agree with what Pauline McNeill said about the previous Government's work on new prisons. We seek assurances from the cabinet secretary that HDC for long-term prisoners will be reviewed at that stage. A reasonable amount of time will have elapsed, so our request is reasonable.

Systems of early release and parole are currently in operation for long-term prisoners and nobody is suggesting that we do away with either system. We all want properly managed, effective and safe systems that allow offenders to return to their families and communities in a way that is safe for communities. If there are questions about safety, HDC should not be agreed to.

The use of the same standard conditions for long-term prisoners who are to be released on HDC as are used for prisoners who are released on parole means that social work supervision conditions and other conditions that the Parole Board for Scotland recommends can be applied from the start of the HDC period, which seems perfectly reasonable. Further conditions will be needed, as the cabinet secretary said.

Cathy Jamieson, the former Minister for Justice said:

"home detention curfew ... will help to manage the return of selected low-risk prisoners from custody back to the community."—[Official Report, 16 June 2005; c 18004.]

She also said that

"The important point is that a proper risk and needs assessment has to be done in each case, before anyone is released to home detention curfew."—[Official Report, 3 November 2005; c 20390.]

That was the case in 2005 and it remains the case.

The overwhelming rationale for releasing a prisoner should not be the impact on prison numbers, however important that is; it should be what is best in the context of the offender's reintegration into the community. It could be argued that long-term prisoners have a greater need for reintegration to take place gradually and effectively than do short-term prisoners. The crucial point is that the impact on the offender's family, victims and community must be considered.

Photo of Stuart McMillan Stuart McMillan Scottish National Party 9:37 am, 27th March 2008

I am grateful for the opportunity to speak again on a matter, which will perhaps this evening—if all members arrive in time for decision time, as I assume that they will—be put to bed for the foreseeable future.

I am happy to reiterate my position. During the parliamentary debate on HDC a couple of weeks ago, I said that there was no logic to not extending the scheme and that proposing a sunset clause was tantamount to faffing around. I accept that on occasions sunset clauses have a legitimate place, but given that the cabinet secretary has offered a widespread review—not a repeal—of HDC when Addiewell prison opens, a sunset clause is not relevant in this instance. I could have considered a sunset clause if there had been no other offer on the table.

The cabinet secretary has outlined the strict guidelines around the extension of HDC and has given details of measures to allow prisoners to make a safe transition back to society, which include statutory exclusions, preventing certain categories of offenders, such as sex offenders, from being released on HDC, and a robust risk assessment process, which is undertaken by the SPS and takes into account a prisoner's previous history of violence, for example.

The primary aim of HDC was to ease the reintegration of prisoners into the community, while restricting their movements, which creates a better environment for all concerned.

As the cabinet secretary pointed out during the previous debate on HDC, prisoner numbers in Scotland have reached record levels. Prisons are operating over capacity by about 1,000 places. What kind of environment is that for prisoners and prison staff? It has been established that the situation is due in no small part to years of neglect by the Tories and a lack of investment by the previous Administration.

The Labour Party is on record as saying in the Justice Committee that it is not against HDC per se. I would not expect Labour to oppose HDC, given that it was part of the previous Administration, which introduced the scheme. I am sure that Labour and Lib Dem members of the previous Executive viewed HDC as an important part of justice policy.

I am also sure that Labour members are aware that when HDC was introduced by the United Kingdom Parliament in 1999 the system was intended for prisoners who were serving sentences of between three months and four years. HDC was then brought in for up to two months at the end of a sentence. Since then, HDC has been extended twice: first in 2002, when presumptive HDC was introduced for prisoners who were serving sentences of between three and 12 months; and secondly in July 2003, when the maximum curfew was increased to 135 days. I would not suggest that Labour members are opposing the SNP Government's plans for the sake of it, but they know that Labour ministers in London have extended HDC—and that that has happened without mention of sunset clauses.

In a recent interview with Jack Straw it was said that the prisons estate in England and Wales is only 70 places short of capacity and emergency measures might have to be taken. Who knows what the future will bring on HDC in England and Wales? In Scotland we have an opportunity to help prison officers and to help prisoners to reintegrate into the community. It is in everyone's interests that prisoners not only do their time but have a chance to be rehabilitated. I am sure that all members—even the Tories—agree on that.

There is no doubt that HDC should be extended. I hope that members have the sense to press the right voting button tonight and reject the motion.

Photo of Bill Butler Bill Butler Labour 9:41 am, 27th March 2008

A little more than two weeks ago Parliament voted narrowly to agree to the draft Home Detention Curfew Licence (Amendment of Specified Days)

(Scotland) Order 2008. I regret that that happened, but I am a democrat and I accept the will of Parliament. I sincerely hope that no ill comes of the decision.

Members will recall that during the debate two weeks ago the members who expressed concern about the draft order, which contained a proposal to modify significantly the specified length of HDC, were the subject of colourful charges that were levelled by the cabinet secretary. We were accused of indulging in "cant and hypocrisy"; of

"seeking to play politics with our prisons"; and of

"jeopardising the good order in our prisons and undermining the excellent work that our staff do."—[Official Report, 12 March 2008; c 6864.]

Mr MacAskill refused to take a single intervention during his closing speech in that debate, which was redolent of mere captation, so I offer him some advice gratis: he should not automatically assume that people who oppose his arguments and question his judgment on matters as serious as public safety are insincere or unprincipled. Such an approach debases proper debate, which is never a good idea. I had hoped that the cabinet secretary's comments today would be more considered and rational than they were a fortnight ago. I have been disappointed, although I still live in hope.

I say again that I still support the HDC provisions in the Management of Offenders etc (Scotland) Act 2005, which were reasonable and proportionate. HDC was conceived as part of a wider package of measures to deal with the serious problem of reoffending rates. The correct position was taken in the 2005 act and I do not resile from it.

I remain baffled by the Government's refusal to countenance a sunset or review clause, which would have allowed Parliament to agree to a modified order and return to the matter in due course. I still feel that the approach has much to commend it. Given the nature of the decision with which Parliament is faced, I am even more convinced that the approach is wise.

A fortnight ago, Parliament passed an order that significantly modified the specified length of HDC licences. It could be argued that that change was merely quantitative. Today we are being asked to agree with a qualitative change to primary legislation. If we do not support Mr Aitken's motion to annul the Home Detention Curfew Licence (Prescribed Standard Conditions) (Scotland) (No 2) Order 2008, we will have changed the type of prisoner who can be released on HDC. There was no intention in the primary legislation to include long-term prisoners in the scope of the scheme. In effect, Parliament is being invited to allow more serious criminals who are serving long-term sentences to be released up to six months early. That is a serious matter and it is right and proper that we should proceed with caution, given that the safety of our communities is our paramount consideration.

That is why I urge the SNP ministerial team to reconsider its position—even at this late stage—on the insertion of a sunset or review clause in an order that makes a qualitative modification to primary legislation. Sunset or review clauses are appropriate when regulation is introduced at short notice in response to a crisis. It would be a precautionary measure; it would do no harm, and it may very well do good. What on Earth is wrong with that?

I genuinely hope that the SNP Government will reconsider its position. If it does, my party stands ready to support the Home Detention Curfew Licence (Prescribed Standard Conditions) (Scotland) (No 2) Order 2008, once it has been suitably amended to ensure the safety of communities across Scotland. I hope that the SNP will listen to reason and dispense with mere assertion and bluster.

Photo of John Wilson John Wilson Scottish National Party 9:45 am, 27th March 2008

I have pleasure in speaking in the debate. I am opposed to the motion in the name of Bill Aitken. I support the order that the cabinet secretary laid.

Home detention curfew was debated in the chamber on 12 March 2008. As members have said, today's debate has a feeling of déjà vu or groundhog day about it. The primary aim of HDC is to ease prisoners into the community while restricting their movement. As has been said, Scotland's prison population is just over 8,000. The Scottish Prison Service is operating at 1,000 places above capacity, yet the crime rate is not increasing.

In his speech, the cabinet secretary reinforced the point that the order affects only prisoners who serve certain periods of time. Basically, it will bring them into the ambit of HDC and allow the Scottish Prison Service to operate a system to place other prisoners on early release.

The statistics on HDC are clear: some 3,000 people have been released under HDC, yet less than 1 per cent of them have reoffended while on the scheme. The SPS is by no means perfect, but prison governors are rightly strict in deciding on HDC applications. As Margaret Smith highlighted, that is evidenced by the fact that 40 per cent of those who apply for HDC are refused. That indicates the strict criteria that the SPS applies.

Bill Aitken quoted a 21 per cent failure rate for those who are on HDC, but if we analyse the figures—which I have done—we find that the figure is less than 9 per cent, once we account for prisoners who are taken off HDC only to appeal successfully.

Photo of John Wilson John Wilson Scottish National Party

In many ways, we are at a crossroads in the justice agenda. Community sentencing is the clear answer to resolving prison overcrowding. That said, we are all aware of the horror of prisoners committing criminal acts while on probation orders or electronically tagged.

Unfortunately, some political figures on the Conservative benches pander to the short, sharp shock policies of a bygone age, when playing to the press gallery was paramount. However, such strange posturing on HDC is evident in its fullest sense when we turn to the sunset clause that the Labour Party has attempted to introduce. At no point in the debates on the Management of Offenders etc (Scotland) Bill did Labour make the case for such a clause. Its mixed messages and misinformation on HDC are highlighted in what Bill Butler said at stage 1 of the bill:

"Most of the evidence that we heard suggested that there was merit in home detention curfew for certain low-risk prisoners."—[Official Report, 16 June 2005; c 18019.]

Clearly, locking up people is not the answer and it does not impact on the overall crime rate. Only now are we beginning to understand that jail should be for people who are a clear threat to the community.

The real and lasting benefit of today's debate will be if the justice agenda is debated in a more mature fashion. We have a prison system that suffers from chronic overcrowding on a daily basis. Bill McKinlay, the governor of Barlinnie prison, has stated in stark terms that he will not be able to house any more prisoners within months.

I trust that sense will prevail at decision time and that members will reject the motion in the name of Bill Aitken and support the order.

Photo of Cathie Craigie Cathie Craigie Labour 9:49 am, 27th March 2008

The debate on home detention curfew has taken up a great deal of committee and parliamentary time over the past few weeks. I am sure that members will not complain about that; as a responsible Opposition, it is right that we hold the minority Scottish Government to account. It is also right that the ministers who are responsible for ensuring that our communities are safe are called on to defend their proposals.

I make it clear that my party supports HDC for appropriate people as a way of reintegrating short-term offenders into the community. As an individual MSP, I want tagging to be used more widely as a disposal for non-violent offenders. Prison is a place for people who are a danger to society. It is in everyone's interest that we work with minor offenders, in particular. We should offer them the opportunity to make amends for their criminal behaviour, maintain a job and take responsibility for supporting themselves in a community setting. Greater use of tagging, with support, is a way of addressing and reversing criminal behaviour.

As other members have said, the Cabinet Secretary for Justice is asking the Parliament to support extending HDC to longer-term prisoners. I am unwilling to support that because of lack of information. He has made available no information either to the Justice Committee or to Parliament on the effectiveness of HDC since its introduction in 2006. Figures have been bandied about this morning, but no serious research has been conducted on the effect of HDC on communities or whether it stops reoffending.

I remind ministers that the purpose of introducing HDC was to reduce reoffending, and it was introduced not in isolation but as part of a package of measures to make Scotland a safer place. Ministers have neither listened to calls for evidence to support the extension nor accepted the Labour Party's offer. HDC has been in operation for almost two years, yet the SNP has nothing to say on whether it is a success in terms of offenders or the communities to which they return. Has HDC addressed the revolving door syndrome? I do not know. If the cabinet secretary knows, he has failed to tell the Justice Committee or Parliament.

In the last parliamentary debate on the topic—I use the term "debate" loosely, given that the cabinet secretary refused to engage in it—SNP members got to their feet to defend their minister. The cabinet secretary accused the Opposition of playing narrow, sectarian party politics and SNP back benchers accused us of taking an overtly political tone. I will speak directly to SNP back benchers. I ask them not to follow, like sheep, their ministers' orders, but to demand from them what we are demanding: fact-based evidence. Before an extension is agreed, the HDC scheme must be properly assessed, but we need evidence before we can do that. Any extension of HDC should be driven not by the goal of reducing the prison population but by the fact that it is working. Thus far, we do not know that it is. I will not vote to put my community at risk. I ask SNP members to vote to support communities, not to save the face of their cabinet secretary.

The Labour Party is not playing politics but taking a responsible political position. I urge the cabinet secretary to take up Bill Butler's reasonable offer. If he does not, I ask SNP members, and Liberal Democrat members, to vote with their heads and not their party whips at decision time.

Photo of Alex Fergusson Alex Fergusson None

We come to the wind-up speeches.

Photo of Mike Pringle Mike Pringle Liberal Democrat 9:53 am, 27th March 2008

I accept Bill Aitken's criticism of what happened a fortnight ago. However, I have been consistent. I supported home detention curfew: I voted for it at committee when I substituted for my colleague Margaret Smith, and I voted the right way on the day. I assure Bill Aitken that, at 5 o'clock, I will try my very best to herd sheep into the chamber at the right time.

Photo of Mike Pringle Mike Pringle Liberal Democrat

As I said, I will do my best to herd sheep at 5 o'clock and to ensure that they go in the right direction.

As my colleague Margaret Smith and John Wilson outlined in their speeches, there can be no doubt of the success of HDC. As the cabinet secretary alluded to, the figures on HDC demonstrate that. The Scottish Prison Service ensures that any prisoner who is released on HDC licence, or who wants to do so, fulfils rigorous conditions.

The order revokes the standard conditions in the Home Detention Curfew Licence (Prescribed Standard Conditions) (Scotland) Order 2006, which apply only to short-term prisoners, and prescribes new standard conditions for those prisoners. The result is that standard conditions for short and long-term prisoners will appear in one order, which is a sensible, commonsense approach. However, there will be a need for further conditions to be added on an individual basis, as recommended by the Parole Board for Scotland or the Scottish Prison Service.

A major rationale behind the introduction of HDC was that it would assist offenders' reintegration into their family and community, which is essential. HDC allows offenders to work and to access all the services that are available in communities—many of which are lacking in prisons. As my colleague Margaret Smith said, the SPS is required to examine each individual case and to assess the person prior to granting an HDC licence, with the option of adding conditions when necessary, which is essential. For example, the condition could be that the individual must attend particular addiction treatment or that they must not visit a certain place.

As other members have said, we cannot get away from the fact that there is a record number of prisoners in our prisons. All of us in the Parliament have an obligation to try to reverse that trend. The fact that we in Scotland have more people in prison per head of population than almost any other country in Europe is a disgrace. There is an obligation on all of us to do what we can to sort out the problem.

We cannot ignore the words of the governor of Barlinnie prison or the chief inspector of prisons when they warn of the impact of overcrowding on the SPS's ability to perform its duties effectively and to engage with prisoners in a way that addresses their needs and helps them to avoid reoffending. Burying our heads in the sand and ignoring the practical reality that the Government is grappling with is not an acceptable course of action.

The minister has given a commitment that he will review the system in light of the impact of Addiewell prison being opened in January, and we will hold him to that. We want a commitment that includes an extension of the scheme to long-term prisoners. We will not ignore the overcrowding in our prisons and its detrimental impact on rehabilitation and reoffending levels. We will not ignore the fact that we introduced HDC when we were in government and that, if it is managed properly, it can assist in effectively reintegrating offenders into the communities in which they want to live.

Photo of Paul Martin Paul Martin Labour 9:57 am, 27th March 2008

Once again—for the third time—the Cabinet Secretary for Justice has failed to convince members of the merits of extending the home detention curfew scheme from four and a half months to six months. This has been a shameful journey for the Scottish Executive. There has been a lack of respect on the part of the Government towards the committee process and contempt has been shown towards decisions taken by the Parliament.

It is important to recognise that the situation is unprecedented: never before has a minister presented secondary legislation to our committees for it to be defeated there. It is also unprecedented for a Scottish statutory instrument to be brought to the chamber, defeated and then brought before us again. I remember a number of the things that members who formerly were in opposition said over the years about the respect that should be shown to the committee process. Perhaps Mr Ewing, when he sums up, can clarify the fact that he made such remarks about the process on many occasions.

I have read with interest the unprecedented number of briefings in recent weeks regarding the prison overcrowding challenges that face the Government. John Wilson, Mike Pringle and other members are concerned about overcrowding, and they quite rightly made a case in that respect. I also heard some quotes from the governor of Barlinnie prison on the overcrowding challenges that he faces. I respect Bill McKinlay, who represents the prison that is located in my constituency, and I recognise the challenges in his role of managing Barlinnie prison. However, no one in the chamber should allow Mr McKinlay to believe that adding 50 prisoners to the HDC scheme will give him any respite from overcrowding. That is the serious point that needs to be made in the debate. The order will make no difference to the overcrowding challenges that we face.

If the order is passed today, perhaps the cabinet secretary will ensure that members will be kept informed, through the convener of the Justice Committee, of the success of the order, and of whether it has any positive impact in dealing with overcrowding. The overcrowding argument has been the pivotal one that the cabinet secretary has made in respect of the order. He must, on a regular basis, be able to prove that the legislation is making a difference.

In the interests of good, open and accountable government, and assuming that the Government presses ahead with its plans today, I ask the minister to clarify in his summing-up speech when the extension of the HDC scheme will actually be operational—not when the legislation will be passed. That is the most important point in the debate. It is about not what we do in respect of overcrowding, but what difference the home detention scheme will make.

As I said, the Government has once again failed to convince the Parliament. It might win the vote today, but it will not have won the argument. I call on the Parliament to support the motion in the name of Bill Aitken.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party 10:01 am, 27th March 2008

As is often the case with debates in the chamber, more heat than light has been generated this morning. As Mr Aitken said in his opening speech, there is a sense of déjà vu, therefore I make no apology for reiterating that there has been a great deal of cant and hypocrisy in the debate, particularly from the Labour-Tory alliance that has congealed around the issue.

However, cogent points have been made. In particular, Margaret Smith made it clear—and it was echoed by John Wilson and others—that 40 per cent of HDC applications are rejected, which shows that clear criteria must be considered. In addition, breaches occur in less than 1 per cent of cases. Mr Wilson was correct—irrespective of the sedentary criticism from Mr McLetchie—about the opportunity to appeal to the Parole Board in cases where there is a breach. Indeed, I think that the majority of appeals are successful.

Returning to the hypocrisy of the Tories, we had 18 years of Tory rule with not one new prison. The Tories caused some of the consequences that the Government is now having to address. There has also been cant and hypocrisy from Labour. Ms McNeill seemed to object to extending the scheme to long-term prisoners. Bill Butler fulminated about it. Cathie Craigie oozed false sincerity about it. Mr Martin appeared bullish about it. Let us consider the facts. We are dealing with subordinate legislation today because the previous Administration—a majority Labour Administration—included within the parent act provisions for HDC—

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

The parent act expressly included provision for HDC to be extended to long-term prisoners. It might be that there was simply an oversight, and Mr Butler did not have the opportunity to—

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I will not take an intervention at the moment; I am in the middle of making a point.

Perhaps Mr Butler was unable to persuade the then Minister for Justice of the benefit of a sunset clause—if he had been able to do so, we would not be in this situation now. Perhaps the initial error was that a sunset clause was forsaken. The position is that the previous Administration allowed the scheme to be extended to long-term prisoners by subordinate legislation.

If we take Ms McNeill's point of view, perhaps it was entirely a mistake. Perhaps the draftsmen somehow created an eligibility for long-term prisoners that could be triggered by subordinate legislation—but that was clearly not what Labour meant. I view the assertions that have been made as cant and hypocrisy. The previous Administration, under Labour, knew that there might be a requirement or a desire to extend the HDC scheme to long-term prisoners, so it provided for that in the Management of Offenders etc (Scotland) Act 2005. Ministers did not introduce a sunset clause—they did not forsake the provision, because they knew that they might want to use it. Labour's position is utter cant and hypocrisy.

The mention of delay with Bishopbriggs prison is equally so. Thankfully, it appears that the current—although who knows for how long?—Labour leader in the Parliament welcomes the Government's commitment to Bishopbriggs prison being built in the public sector. Why has there been a delay? Because the previous Administration, under the so-called Labour Party—the party of syndicalism and trade unions—went head to head in a two-year competition to decide whether or not the SPS could build the prison. That delayed matters for two years, at a cost of £2 million—with which we could have built a wall and started construction. Fortunately, this new Administration has repudiated the further privatisation of our prison services—privatisation that was instigated by the Labour Government. We have ensured that the prison service will indeed be a prison service and not a service that is operated for private profit.

As I have said, our prison service faces difficulties. Fortunately, members from all parties acknowledge the excellent job that is being done by the SPS, our prison governors and our prison staff. They have to be able to deal with serious and violent criminals, and they have to be able to deal with not only drugs but mobile phones coming into prisons. If they have to take the flotsam and jetsam, they will be unable to concentrate on the people they need to concentrate on. They cannot do both, and those who would force them to do so would undermine and jeopardise the job that they do. That is why we need flexibility.

Mr Martin thinks that 50 people on HDC is an irrelevant amount. When dealing with the numbers that Mr McKinlay has to deal with in HM Prison Barlinnie in Mr Martin's constituency, 50 is a substantial number. That is why we will vote against the motion.

There has been cant and hypocrisy from the Labour-Tory coalition that got us into this mess in the first place. However, in its wisdom, the Labour Party fortunately gave us the opportunity to deliver measures by way of subordinate legislation. It clearly had the foresight to see that a future Government, Executive or Scottish National Party Administration might wish to implement the measures. I thank the Labour Party for its foresight and wisdom in ensuring that measures for long-term prisoners can be dealt with by means of subordinate legislation.

Photo of John Lamont John Lamont Conservative 10:06 am, 27th March 2008

Here we are again—episode 3 of "The Great Prison Escape", hosted by none other than the Cabinet Secretary for Justice, Mr Kenny MacAskill, ably assisted—perhaps—by his Liberal Democrat friends, who are also waving the get out of jail free card.

Thank goodness that Margaret Smith is back in the driving seat of the Lib Dem justice brief, after the chaos of two weeks ago when, on Mike Pringle's watch, there was a rebellion on a scale never before seen in the Scottish Liberal Democrats. Thanks to a combination of no-shows and voting blunders, six of the 16 Lib Dem members—including, remarkably, the party leader—failed to support the party line. I am sure that this time, Margaret Smith will have inspired her colleagues at least to turn up, if not to vote.

At the previous vote, I could barely hide my surprise. I thought, "Are the Liberal Democrats actually listening to the electorate? Are they listening to the victims of crime? Are they willing to stand alongside the Conservatives and oppose a ridiculous measure that will undermine the public's confidence in the criminal justice system?" Oh no, Presiding Officer, I should have known better. After all, why would they be supporting proposals to keep criminals in prison, when I know that some Liberal Democrats think that prison should be abolished altogether? It is, of course, the prerogative of the Liberal Democrats to advance barmy policy ideas every so often, and it is important that they continue to do so.

Photo of Margaret Smith Margaret Smith Liberal Democrat

We are looking at a system for which there are set criteria. Of the people who apply for home detention curfew, 40 per cent are not accepted. A total of 3,000 people have been released on HDC, and less than 1 per cent of them have offended. Is Mr Lamont suggesting that we should no longer have any form of early release or any form of parole, and that we should keep everybody locked up in prison for the full term of their sentence? How would you deal with that when you did not build a single prison when you were in office?

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

I certainly did not build any prisons, Ms Smith.

Photo of John Lamont John Lamont Conservative

We are confident enough in our court system to know that people who are sent to prison should spend their time in prison. That is what victims of crime and the wider public tell me. We do not cut crime by cutting the prison population; we cut the prison population by cutting crime. The immediate goal should be to reduce the reconviction rate, not the prison population.

I do not understand why the Government will not examine more closely the experience in England and Wales, where the chief inspector of prisons has warned consistently of the danger of allowing unsuitable prisoners to be transferred out of closed prisons early. Stuart McMillan spoke about the English experience, and I draw his attention to the fact that, under the English version of the HDC scheme, which was introduced in 1999, more than 4,000 prisoners who were released early have reoffended, committing more than 7,000 crimes. More than 1,000 of those crimes were violent crimes, including one murder, 56 woundings and more than 700 assaults. Those crimes would not have been committed if the criminals who committed them had remained in prison serving out their sentence.

Photo of John Lamont John Lamont Conservative

The member says "England", but surely we should learn from our neighbours across the border, rather than put our heads in the sand and make the same mistakes that they have made. Following what happened in the case of Mr Foye, I would have thought that the Cabinet Secretary for Justice would learn the lesson and not propose to release more prisoners even earlier.

Nothing dismays victims more or brings the entire criminal justice system into greater disrepute than the fact that criminals almost never serve the sentence that is handed down by the court. Rather than let criminals out early, the Government needs to rethink its justice policy so that the problems of overcrowded prisons are tackled not by letting prisoners go home early but by cutting the crime figures.

We need to make criminals scared of getting caught and scared of punishment, so that they will choose not to commit crime. Letting offenders home early will not achieve that. We need to make criminals pay a heavy price for their actions, so that others are scared of following their example. Letting offenders home early will not achieve that. We need to put victims first and ensure that they see justice being done. Letting offenders home early will not achieve that. We need to give the police the backing that they deserve. Letting offenders home early will not achieve that.

I wonder what the Lib Dem rebels will be doing today. Will they vote with us to ensure that criminals do their time? Will they vote with us to ensure that the criminal justice system is on the side of the victims of crime rather than on the side of the offenders? Will they vote with us to ensure that dangerous criminals are kept in prison for the length of time that the courts have determined they should be locked up? Will they vote with us as we start the war against crime, so that the law-abiding majority can take back their streets, their town centres, their homes, their communities and their shops? Or will they vote with the SNP Government to set even more prisoners free even earlier? Will they vote with the Government to undermine confidence in our criminal justice system? Will they vote with the Government for a soft-touch Scotland, where four years means 18 months and the decent law-abiding citizens of Scotland have to pay the price? The choice is for the Liberal Democrats. I hope that they will not let us down.

I urge Parliament to back the motion in Bill Aitken's name.