The next item of business is a debate on motion S6M-15530, in the name of Jamie Hepburn, on the Prisoners (Early Release) (Scotland Bill): emergency bill motion. I remind members that, as per rule 11.3.1(h) of standing orders, the question on the motion will be put immediately after the debate. I invite members who wish to speak in the debate to press their request-to-speak buttons, and I call Jamie Hepburn to speak to and move the motion. You have up to five minutes, Mr Hepburn.

I seek Parliament’s agreement to treat the Prisoners (Early Release) (Scotland) Bill under the emergency procedure that is provided for in Parliament’s standing orders. In doing so, I recognise at the outset that any ask of Parliament to treat a bill under such a process should be when the circumstances require it. I will set out why the current circumstances merit the bill being treated through the emergency procedure.

The Scottish Government is committed to ensuring that, for all of those who live or work in our prison estate, the Scottish Prison Service is able to maintain safety and good order. To protect victims and for public safety, the Scottish Prison Service must be able to accommodate those who pose the greatest risk of harm. It must also be able to support rehabilitation in order to reduce reoffending.

In previous statements to Parliament, the Cabinet Secretary for Justice and Home Affairs set out the scale of the challenge that we face as a result of the rising prison population. The prison population has often exceeded 8,300 this year, and the latest prison population projections indicate that it will likely continue to increase into January 2025, reaching critical levels.

That pressure directly impacts on staff and prisoners. Visits to prisoners are becoming difficult to maintain, and there are increasing challenges to the effective delivery of healthcare. A high population also reduces the capacity of the Scottish Prison Service to facilitate purposeful activity and support rehabilitation, which are essential in preparing individuals for reintegration into the community and, of course, to bring down reoffending.

The Cabinet Secretary for Justice and Home Affairs set out to Parliament the range of actions that are being taken to address the rising prison population. However, many of those actions will take time to have effect. Further urgent and sustainable action is needed now. The cabinet secretary announced on 10 October that she would seek to introduce legislation in November and would ask for it to be treated under the emergency procedure. It should therefore be no surprise that we seek to do that now.

If passed, the Prisoners (Early Release) (Scotland) Bill will allow for the prison population to be reduced at pace and for that reduction to be maintained. We need to accelerate action that will reduce the population in a sustainable way. Progressing the bill under the emergency procedure is necessary because of the urgency of the situation, and it is proportionate to the scale of the challenge that we face. We need to act urgently to ensure that prisons continue to function safely and effectively and that they can accommodate those who pose the greatest risk of harm. Any unnecessary delay will increase the risks to the safety, security and good order of our prisons.

If the Parliament agrees to treat the bill under the emergency procedure, that will allow the proposals on changing the release point for some short-term prisoners, if they are agreed to, to be implemented in early 2025. The proposals being implemented then could result in a sustained reduction in the sentenced population of about 5 per cent.

Planning work is already under way, and it is critical that the Scottish Prison Service has clarity on the final bill as soon as possible, so that it can make the necessary preparations and work with public sector and third sector organisations to prepare for release. Considerable planning is needed, including regarding the training of staff, the recalculation of release dates and other system changes, and all those issues require urgent clarity in the form of the final bill. Progressing the bill on an emergency basis will mean that the Scottish Prison Service can prepare and plan for, as well as implement, the changes at pace, if they are agreed by the Parliament.

Of course, the bill will still be subject to parliamentary scrutiny as it proceeds through its parliamentary stages. The Government has aimed to maximise parliamentary scrutiny as far as is possible under the emergency procedure. That is why the proposed timetable does not follow the default timetable set out in standing orders that all stages of an emergency bill should be taken in one day. Instead, we have set out a timetable that will allow the Parliament to debate and, we hope, agree to the bill’s general principles tomorrow, and further time for scrutiny will be provided ahead of the amending stages in the chamber next Tuesday.

I hope that members will agree that we must act urgently and collectively to address the critical nature of the high prison population and that they will agree to treat the bill under the emergency procedure in order to provide a sustainable reduction in the prison population as soon as possible.

I move,

That the Parliament agrees that the Prisoners (Early Release) (Scotland) Bill be treated as an Emergency Bill.

I rise to speak against the motion to treat the bill under the emergency procedure. The bill will make fundamental and permanent changes to the release point of short-term prisoners. They will be released automatically after serving only 40 per cent of their sentence. The bill will also reduce the scrutiny that would be required should the Government wish to do the same for long-term prisoners in the future. That would be a fundamental change to what we do with convicted criminals, but the Government is asking us to vote for the bill with less than a week’s scrutiny.

The Minister suggests that action to address the prison population has been taken, and that is true. In a panicked response this summer, the Government released 477 convicted criminals. By mid-September, many of them were back in custody. Last year, the Parliament passed a law to reduce the number of people remanded, but today we are considering measures without there having been a formal assessment of the effectiveness of that legislation.

It is clear that the Government has no coherent strategy to address the prison population. Instead, it seeks something—anything—that will keep criminals out of prison, regardless of whether it will actually have an impact on numbers, other than in the short term, and regardless of whether it is safe. Without the full scrutiny that the normal bill process requires, the Parliament cannot help the Government to ensure that its knee-jerk measures will be effective and safe.

Is it not the reality that, following the bill’s publication, we have been confronted with, in fact, two Bills that have been pushed together? One relates to short-term prisoners with sentences of four years or less, and one relates to long-term prisoners. There is an outcry, including from Victim Support Scotland, about long-term prisoners being included in the bill, with a very small amount of discussion with groups outside the Parliament. The bill could achieve its ends by covering only short-term prisoners.

That is a really important point. The Government appears to be grabbing powers over long-term prisoners under the cover of a measure that has got, and will continue to get, all the attention. I find that deeply sinister.

Will Mr Kerr give way?

Will I have time, Presiding Officer?

A little.

I will give way very briefly.

Does Mr Kerr agree that parliamentary approval of any secondary legislation, particularly under the affirmative procedure, is always required? There are 56 laying days, with the right of things to come to plenary. Does he further agree that that is in sharp contrast to the approach of the previous United Kingdom Government, which released 10,000 prisoners without a by-your-leave to the UK Parliament?

I am, of course, well aware of the parliamentary process and the fact that this is Scotland’s Parliament dealing with Scottish legislation. The fact is that, if the legislation that we are looking at is treated as emergency legislation—[ Interruption .]

Let us hear one another.

If it is treated as emergency legislation, what of the representations of some of those who offered some preliminary thoughts early in the year without having seen the bill? For example, His Majesty’s Inspectorate of Prisons for Scotland said that releasing those criminals “may be insufficient” to deal with the spike in the population, the Convention of Scottish Local Authorities said that there might be a “significant risk” that victims will lose confidence in the system, and Victim Support Scotland stated that there might be a

“legitimate threat to victims’ personal safety”.

COSLA also suggested that local authorities

“will struggle to provide adequate support to individuals leaving or diverted from custody”.

We will not be able to interrogate the effectiveness or feasibility of alternatives to custody, such as those that the Cabinet secretary rightly proposes in her interview with Holyrood magazine. Nor will we be able to interrogate whether there is something to be done about foreign nationals in the prison population, or whether there is spare capacity within the prison system, such as at Polmont.

Without the usual scrutiny and consideration of evidence from experts about the wider impact on victims, the public and the criminals themselves, the Parliament will legislate in a vacuum as a knee-jerk reaction to a completely predictable situation.

We should also bear it in mind that, unlike the Covid emergency legislation, the provisions in the bill are not time limited. Once the changes are made, they are made. There is no Sunset clause. There is no second chance. There is no going back.

The Minister even highlighted that the bill’s financial memorandum states that the bill will result in a permanent 5 per cent cut in the average prison population. What if it turns out that that has jeopardised public safety?

The minister prayed standing orders in aid. The legislative process that was set out in our standing orders was carefully considered through the Scotland Act 1998 and the consultative steering group. It was drafted by officials and legal experts, and then debated, amended and formally adopted by the Parliament in its first session to ensure adequate scrutiny and the bringing to bear of talents across the Parliament and civic society to avoid unintended consequences, costs and catastrophes. Today, we are being asked to ignore those steps and accept an emergency procedure for a bill that will make a permanent legal change. We have only the Government’s word that, although previous initiatives have failed, this is the solution.

Members who vote to treat the bill as an emergency bill will give this Government a licence to push through, with minimum scrutiny, a fundamental change to how we sentence that will have profound and long-lasting impacts. I have too much respect for this place, too much concern for public safety and too much respect for the rule of law to accept that. I hope that members share that respect and will vote against the motion.

The Parliament has been asked to agree that the Scottish Government can put before the Parliament emergency legislation—a bill that we saw only on Monday—to change the approach of Scottish prisons to the release of short-term and long-term prisoners. That is a substantial change in prison policy, and the proposed approach denies the Scottish Parliament and the Criminal Justice Committee their scrutiny role over a change in policy. The right to call witnesses, to take our time and to decide who we want to listen to will be denied if we agree to the emergency legislation procedure.

As Liam Kerr said, the Scottish Government is seeking a permanent change to the way in which we release prisoners—those who are serving a short-term sentence will go from serving 50 per cent to 40 per cent, with some exclusions—even though the temporary release programme seems to have its flaws and we are back to where we started in July this year, with the prison population back up to 8,300.

A number of prisoners who were released have been back in jail during that period. As predicted, there is a revolving door, which is a major concern for those who are interested in prison policy. I am sure that all parties agree that, for short-term sentences, it seems obvious that simply legislating to reduce time in jail without a more radical plan to tackle reoffending rates is a failure. We should have the right to discuss that and the impact that it will have on victims and communities in more detail.

Victims have the right to expect the Parliament to demonstrate that we put their concerns at the heart of the matter. By rushing the bill through this week and next week, we are not going to do that. Indeed, victims’ organisations are extremely concerned about the legislation and the fact that it would be fast tracked. The experience of victims so far is that we are yet to make significant improvements to our criminal justice system.

It is unacceptable that the Scottish Government is saying that this is emergency legislation. The emergency legislation that we have passed has mostly met the criteria, but this bill does not.

The most concerning aspect of the emergency bill is the regulation power, which indicates a significant change in policy that will apply to both short-term and long-term prisoners. Section 3 grants the Scottish ministers a power to make future changes to automatic early release for both short-term and long-term prisoners.

When a major change was made to the release of long-term prisoners in 2015 and 2016, that was done through standard primary legislation, because it involved a significant shift in prison policy, and it seems to have had an impact on the prison population. If we are going to change the policy, is it not obvious that such a change should again be done through standard primary legislation, to allow the Parliament to look at it? It seems odd that the Government is arguing that this is an emergency.

Scottish Labour opposes the motion for the bill to be treated as emergency legislation, because the bill involves a substantial policy change, so the Parliament and the relevant committee should have the right to examine in detail what impact it will have on the prison population and whether the proposal will in fact achieve its aim to sustainably reduce the prison population. I do not think that we can achieve that by looking at the bill tomorrow and next week. I urge the Parliament to give proper scrutiny to this important piece of legislation and to oppose the Government’s proposals tonight.

I thank Liam Kerr and Pauline McNeill for very fairly setting out the concerns that I certainly have and which I suspect many share—I suspect that even the justice secretary herself shares many of those concerns. I also put on record my thanks to the Cabinet secretary for engagement on the issue, not just in relation to the bill that we are looking at but earlier in relation to previous initiatives.

The Minister rightly set out the rationale for emergency Bills, which are a legitimate way of addressing extraordinary circumstances. Unfortunately, the more often we face those bills, the less extraordinary the circumstances appear.

I acknowledge that there are measures in place that will take time to take effect, but the problem has been years in the making—years. We are where we are, and I would almost be prepared to accept the need for urgent action in relation to short-term prisoners. However, I very much agree with the point that Martin Whitfield made in his Intervention on Liam Kerr, which was backed up by Pauline McNeill, that this is, in effect, two bills in one and that the provisions that the Government is looking to introduce through order-making powers in relation to long-term prisoners do not do justice to some of the sensitivities and controversies that there are around that issue. I think that Parliament would want to take its time to consider the evidence that the Criminal Justice Committee would almost certainly wish to take on that issue.

On that basis, although the bill may proceed under emergency provisions at the moment, if that element of section 3 is not removed, I cannot see how the Parliament can pass the bill at stage 3 next week. I look forward to listening to the minister’s response to the concerns that have been raised, but I very much echo the concerns that Liam Kerr and Pauline McNeill have articulated.

I thank members for their contributions. If a Government seeks to introduce an emergency bill, it is important to have the opportunity to debate the rationale for doing so. I stand by my opening remarks about the emergency nature of the situation. The extreme circumstances that we find in relation to the prison population necessitate the requirement for us to look at this on an emergency basis.

It was mentioned by Liam Kerr—who is seeking to intervene; I will certainly give way.

If the Minister concedes the point about the emergency to get people out, does he then concede the point that the ability to deal with long-term prisoners later could meaningfully be removed while the same end is achieved?

We have laid out our position. The sustainability of the entire prison population must be a factor, too. Of course, we seek to address this through regulation-making powers, which would still be subject to the scrutiny and agreement of the Parliament. We would engage with people on that basis. However, if we are going to look at the sustainability of the prison population so that the environment can be the safest possible for the people who are in it—and let us not forget the people who work there—we must look at the matter as a whole.

To debate whether to look at the issue on an emergency basis, it is important to place it in some context. It is not as if the Government is not trying to take action here and now to deal with the problem, as Mr Kerr and Mr McArthur referred to. We have taken action through the Scottish Prison Service to increase capacity in Polmont to assist with the matter; we are looking to ensure that home curfew is optimised; we have increased the Prison Service’s resource budget by £14 million to further strengthen alternatives to custody this year; and we have historically high levels of electronic monitoring, with more than 2,200 people being monitored each day. We are therefore taking action right now. That action will take some time to have effect, but we have an emergency situation that requires us to act.

Let us talk about the policy in relation to long-term prisoners, which the main argument that we are putting to you concerns. Does the Minister accept that, if the bill is passed in this way, we cannot scrutinise it in the same way as we would in a committee? Does he accept that we cannot amend a Scottish statutory instrument and that we must accept what you put before us? Would it not be more in tune with the Parliament’s principles for you to let us amend the policy when you decide to introduce it?

Always speak through the chair, please.

[ Made a request to intervene. ]

That comes back to the age-old issue that, somehow, secondary regulation-making powers are subordinate to or lesser than primary legislation. However, they are a perfectly legitimate way to make law.

I understand that Mr McArthur wants to intervene, but let me come back to my point. Secondary legislation is a perfectly legitimate way for us to make law, and it is, of course, still scrutinised by the Parliament. When we take forward the changes, we will do so on the basis of consultation and engagement, including with members in this place.

Mr Kerr talked about the number of prisoners who will be released. Of course, a number of prisoners have been released previously through the urgent process that we undertook.

Let us place the issue in context. This is not a uniquely Scottish challenge; it is a challenge across the entire United Kingdom. Let us talk about what has happened under Conservative jurisdiction. Yes, this is about Scotland but, if we are to hear from Conservative members about what we have done, let us hear from them about what the Conservatives have done in other parts of the UK. From October 2023 to July 2024, the Conservative UK Government released more than 10,000 prisoners up to 70 days early to deal with overcrowded prisons—[ Interruption .]

Let us hear the Minister.

That process has continued under the current UK Government. Let us make it clear that it was not done through primary legislation or any form of parliamentary scrutiny. It was done under the end of custody supervised licence scheme, which had no recourse back to Parliament. Let us have the full context of—

On a point of order, Presiding Officer. I am afraid—[ Interruption .] No, First Minister, this is a very important point.

Through the chair, please, Mr Kerr. It is very important that you speak through the chair.

This is a debate about whether to treat the bill as emergency legislation, not a debate about the substance of the legislation. I am afraid that the Minister for Parliamentary Business has gone off.

Mr Kerr, I ask you to remember that I am chairing the meeting, please.

I think that I touched a raw nerve there, Presiding Officer. It seems that Mr Kerr was not confident enough to stand on his feet to seek to intervene.

Let us come back to the process. Pauline McNeill talked about concerns about using the emergency process. I recognise—as I said at the outset—that that process should not be used regularly. However, Liam McArthur rightly said that it is legitimate.

Rule 9.21 of standing orders sets out the special requirements of the emergency bill process and specifies that it should ordinarily be done in a day. I am not asking Parliament to agree to that; I am seeking to build in additional time for scrutiny. Let us remind ourselves that all Administrations have utilised the emergency process in the past.

Pauline McNeill said, and this astounded me—

In conclusion, Minister.

She said that this set of circumstances does not meet the threshold for an emergency. Let me go back to what I said earlier: the prison population has often exceeded 8,300 this year. The latest projections indicate that the prison population will likely continue to increase into next year and will reach critical levels. We cannot jeopardise the safety of those in our prison environment—not least those who work there. That is why we should treat the bill as an emergency bill.

That concludes the debate.

There is one question to be put. The question is, that motion S6M-15530, in the name of Jamie Hepburn, on the Prisoners (Early Release) (Scotland) Bill—emergency bill motion, be agreed to. Are we agreed?

Members::

No.

There will be a Division.

There will be a short suspension to allow members to access the digital voting system.

Meeting suspended.

On resuming—

We come to the vote on motion S6M-15530, in the name of Jamie Hepburn, on the Prisoners (Early Release) (Scotland) Bill—emergency bill motion. Members should cast their votes now.

The vote is closed.

On a point of order, Presiding Officer. My vote went through, but my proxy vote did not.

Please bear with me, Ms Mackay.

Sure.

Thank you, Ms Mackay. How did you wish to cast your proxy vote?

I would have voted yes.

We will ensure that that is recorded.

The result of the Division on motion S6M-15530, in the name of Jamie Hepburn, on the Prisoners (Early Release) (Scotland) Bill—emergency bill motion, is: For 67, Against 50, Abstentions 4.

Motion agreed to,

That the Parliament agrees that the Prisoners (Early Release) (Scotland) Bill be treated as an Emergency Bill.