Management of Offenders (Scotland) Bill: Stage 3

Part of the debate – in the Scottish Parliament on 25th June 2019.

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Photo of Humza Yousaf Humza Yousaf Scottish National Party

Amendment 124 seeks to make a change to section 3AA of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in order to provide greater flexibility in the structure of HDC and to clarify its impact on the Parole Board’s assessment for parole.

The direct impact of the change will be minimal in terms of eligibility for HDC. However, in the context of a historically high prison population, the change is required so that ministers will have sufficient powers to configure HDC differently in the future, should they ever need to do so. I believe that it is a prudent step to take now, when there is an available legislative vehicle.

The amendment proposes a change in how the minimum length of time that is to be spent in custody before a person becomes eligible for HDC will be framed in legislation. Currently a prisoner can be eligible only after serving one quarter of their sentence or four weeks—whichever is greater. Subsection (2) will change that so that a prisoner will have to serve only one quarter of their sentence to be eligible for HDC. The Scottish ministers currently have the power, via subordinate legislation, to modify the requirement that a prisoner must serve a minimum of four weeks but not the requirement that a prisoner must serve an absolute minimum of one quarter of their sentence. Subsection (3) will enable the Scottish ministers to modify, via subordinate legislation, the minimum amount of time that must be served for HDC eligibility, should they ever need to do so.

If it were ever necessary to change the requirement that a minimum of 25 per cent of a sentence must be served before someone becomes eligible for HDC, any such proposal would come back to the Parliament for approval under subordinate legislation—which, importantly, would be subject to the affirmative procedure—instead of requiring future primary legislation. That pragmatic change will ensure consistency with the already broad range of powers that ministers have to modify the HDC regime via subordinate legislation.

The Scottish ministers have the power to modify the following aspects of the HDC regime via subordinate legislation: the minimum sentence that a short-term prisoner must be serving to be eligible for HDC, which is currently three months; the number of weeks that must be served before a short-term prisoner can be eligible for HDC; the number of days leading up to the halfway stage of a prisoner’s sentence during which HDC can be granted; and the statutory exclusions from HDC.

However, although the Scottish ministers have a power to modify the minimum number of weeks that must be served before a prisoner is eligible, which is currently four weeks, there is no power to modify the requirement that one quarter of the sentence must be served. The requirement that a prisoner must have served a requisite amount of a sentence before being eligible for HDC remains a barrier to flexibility in how the system can be configured.

Under the powers that are proposed, the Scottish ministers will be able to change the minimum time that must be served before a prisoner can be eligible for HDC, either by reference to a specific period of a prisoner’s sentence or by a specified period of time. The two-pronged approach of requiring either four weeks or a quarter of the sentence to be served will be replaced with the simple requirement that one quarter of a sentence be served. Ministers will retain the power to modify that requirement. I stress that we are not proposing to change the requirement that a prisoner must serve 25 per cent of their sentence. However, amendment 124 provides the flexibility for ministers—present or future—to work with the Parliament to act quickly if that is required.

I would have preferred to have had the opportunity to debate the change at committee stage—or, indeed, to have taken forward the approach through new legislation—but the prison population has continued to change over recent weeks, with numbers creeping steadily upwards. I must therefore act now and ask the Parliament to consider this option as a pragmatic future proofing of the available policy responses. We are, of course, exploring other measures in relation to operational capacity in the existing prison estate, and we are looking across the operation of the entire justice system in seeking to address the rising prison population. The change to HDC is relatively minor in nature, but the fact that it needs to be considered should give us all pause to reflect that we have the highest prison population per capita in western Europe—which is not a statistic to be proud of.

There has been positive collaboration on many parts of the bill to date, including through the support for electronic monitoring as an alternative to prison. I hope that the collaboration across parties will extend into future parliamentary sessions, because it is important that we continue to seek alternatives to incarceration across all our legislative and policy choices.

The final change that amendment 124 will make is to clarify that the legislation that underpins HDC does not require the Parole Board for Scotland to make a decision on parole by a specific date to enable a long-term prisoner to access HDC. Long-term prisoners are eligible for HDC only if they have been pre-approved for parole by the board at the halfway stage of their sentence. Amendment 124 clarifies that the window during which a long-term prisoner can be granted HDC is restricted by the timing of the board’s decision to recommend release on parole: the decision on parole will take precedence and will not be expedited to enable a long-term prisoner to spend a longer period on HDC.

Amendment 127 was lodged in response to an amendment that Margaret Mitchell lodged at stage 2, which proposed that statutory HDC guidance should be produced and laid before the Parliament. As I said at stage 2, I am sympathetic to the intent behind that amendment, and I am grateful to the convener, Daniel Johnson and Liam Kerr for working with us on an approach that I hope satisfies them and provides what they were looking for.

Amendment 127 sidesteps two areas of concern with the amendment that was considered at stage 2. It avoids including material that duplicates other provisions in the bill and it does not create a circular obligation on the Scottish ministers to have regard to their own guidance. We propose that ministers should be obliged to publish a statutory HDC operating protocol, which will include the following heads of information:

“(a) the process of risk assessment that is carried out before a prisoner is released on licence under section 3AA”— of the Prisoners and Criminal Proceedings (Scotland) Act 1993—

“(b) the factors taken into account in carrying out such risk assessments,

(c) the procedures for monitoring a prisoner while released on licence under section 3AA,

(d) the process for investigating a suspected failure to comply with a condition included in a licence under section 3AA,” and

“(e) the process by which a licence under section 3AA is revoked and a prisoner recalled to prison as a result”.

We included in amendment 127 a requirement for the police, the SCTS, local authorities, the Parole Board and the Risk Management Authority to be consulted in the preparation of the protocol. In addition, the protocol will require to be laid in the Parliament within six months of royal assent and will thereafter be kept under review.

The inclusion in the bill of the heads of information on risk assessment and factors to be taken into account in carrying out a risk assessment will, we hope, satisfy members and provide what they were looking for in relation to risk.

The heads of information that are set out in amendment 127 will ensure the publication of information about the entire HDC process, including the risk assessment prior to the granting of HDC, the monitoring of risk in the community and the revocation of HDC.

The requirement to lay the protocol before the Parliament will give the Parliament an opportunity to scrutinise the risk assessment procedures that are used for the purposes of HDC.

I urge members to support amendments 124 and 127, and I move amendment 124.