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

Although we supported the principle behind the original amendment on information sharing that was lodged by Daniel Johnson at stage 2, we opposed it at stage 2 on the grounds that it was unnecessary and that it created challenges. Nevertheless, the amendment was agreed to and inserted section 7A. The concerns that we raised about the amendment remain valid. Amendment 61 would remove section 7A, and amendment 126 proposes an alternative approach to information sharing.

Section 7A places an obligation on the Scottish ministers to

“request information relevant to the monitoring of that prisoner” from specified bodies—the Scottish Courts and Tribunals Service, Police Scotland and the relevant local authority—and the specified bodies must provide the information that is requested within 28 days of the request. I will set out the practical issues with such an approach.

The duty to request information arises before the prisoner is released on home detention curfew, but the duty has the caveat that it need be complied with only “where reasonably practicable”. The Scottish ministers will therefore be able to release a prisoner on HDC without complying with the duty if they can show that it was not reasonably practicable to do so.

The Scottish ministers will be obliged to request information prior to releasing a prisoner on HDC but will be under no obligation to wait for the information to be provided before they release the prisoner.

There is no description of what

“information relevant to the monitoring” means. The Scottish ministers will therefore have a wide power to request any information that is linked to the monitoring of prisoners on HDC.

Furthermore, there will be no ability on the part of a specified body to refuse a request, in part or in whole, and section 7A provides no definition of “relevant local authority” or any explanation of how the Scottish ministers are to determine which local authority is relevant to the prisoner.

As we noted at stage 2, information is already shared between the Scottish Courts and Tribunals Service, Police Scotland, local authorities and the Scottish Prison Service, and the information is used by the SPS in determining applications for HDC. Therefore, our starting position was that the amendment was unnecessary.

Section 7A might also disrupt the current arrangements. A requirement to request information in every case could place an unnecessary burden on the SPS, which might already have the necessary information or might not require further information. The timing of the request could interrupt the determination of HDC, given that the timeframe that is set out in section 7A allows 28 days for the information to be provided if a request is made. That could slow down the determination and shorten the period that is available for HDC.

However, we are sympathetic to the intention behind section 7A. Amendment 126 will replace section 7A with provisions for a related but alternative approach, which amends section 1 of the Management of Offenders etc (Scotland) Act 2005. That section places a duty on the Scottish ministers and local authorities

“to co-operate with one another in carrying out their respective functions” in relation to two groups of individuals. The first group is people who are supervised by, advised by or guided by a local authority as part of a service that is provided under

“sections 27(1) or (1A) or 27ZA of the Social Work (Scotland) Act 1968.”

That includes people who are released from prison on licence and people who are supervised under a community sentence. The second group is people who are detained in custody.

The duty to co-operate expressly includes the sharing of information. Amendment 126 will retain the intention behind section 7A while avoiding the difficulties with that section, which I have described.

On amendment 2, in the name of Daniel Johnson, access to suitable accommodation is important in supporting individuals who leave prison to reintegrate successfully and, therefore, in reducing the risk of reoffending. However, amendment 2 does not offer a proportionate or effective means of achieving that aim. It risks losing the current flexibility, which allows support to be tailored to the needs of the individual.

The Scottish Government supports a range of interventions that support prison leavers to reintegrate into the community. Those include measures to support prison leavers to access accommodation on liberation, such as the sustainable housing on release for everyone—SHORE—standards, which set out good practice on how the SPS and local government housing authorities can ensure that the housing needs of individuals in prison are met.

It is important to note that local authorities have statutory duties to address the needs of individuals who present as homeless and to provide information, support and services to individuals who are at risk of homelessness. Therefore, I am not persuaded that there is a need to legislate to require the Scottish ministers to take separate action to achieve the same aim. The duplication of existing duties and activities would be inefficient and disruptive, and it would create confusion about the responsibility for housing individuals who leave prison.

Instead, we should focus on making the existing processes as effective as possible. The Scottish Government will look at wider legislation and statutory guidance to ensure that everyone who faces homelessness is able to exercise their right and gain access to appropriate support. That work cannot take place in the context of the justice system alone, and the bill is not the right place to make such substantial changes to housing provision. Therefore, I ask Mr Johnson not to move amendment 2. If he does, I ask the Parliament to reject it.

On amendment 128, I welcome Daniel Johnson’s effort to encourage us to think about how the justice system could operate differently. His amendment seeks to add a new element to HDC by requiring that

Scottish Ministers take steps to ensure that a person subject to a curfew condition is provided with meaningful activity whilst subject to the curfew condition.”

I am not convinced that legislation is required to support people on home detention curfew, which provides an opportunity to support effective reintegration by enabling part of a prisoner’s sentence to be served in the community, subject to licence conditions and electronic monitoring. That option can currently be provided alongside other services to support individuals who are leaving short-term sentences, including pre-release planning, voluntary social work throughcare, the SPS’s throughcare support service and third sector offender mentoring services.

Although Daniel Johnson’s amendment is well intentioned, I believe that it could create significant restrictions on how the HDC system operates. The definition of “meaningful activity” is to be prescribed by Scottish ministers via subordinate legislation

“but must include ... work or volunteering opportunities”.

However, not every individual on HDC would be able—or, indeed, willing—to engage with those work or volunteering opportunities. It is not clear whether those individuals would be restricted from accessing HDC because no meaningful activity could be provided for them.

Ministers do not control the employment market and could not ensure that work was available for everyone on HDC, so the Scottish ministers could never comply with that duty. In any event, if ministers prescribe work or volunteering opportunities for people, that could cut across other work or family commitments that they may have. Such a system would not provide the flexibility that is needed to take account of the specific circumstances of the individual.

I agree that, ultimately, we can do more to ensure that people who are released from prison are able to connect with public services and are given opportunities. However, I disagree with an approach that seeks to set a broad and mandatory set of activities instead of allowing actions to be determined voluntarily. For those reasons, I propose to resist amendment 128.

I move amendment 61.