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You may recall the home detention curfew regulations that we took through committee. They were aligned with the previous arrangements for short-term prisoners, and we wanted to align them to the short-term prisoner 40 programme.

Yes. I might ask Ruth Swanson to explain this, because I always make a wee bit of a dog’s dinner of it. Although eligibility for some prisoners kicks in at 15 per cent—and there are exclusions around who is eligible for home detention curfew as well—because of the other requirements and the assessment process, people will actually be further into their sentence. Do you want to explain a wee bit about that, Ruth?

With home detention curfew, as well as being risk assessed, everybody is tagged. There are conditions of release and curfew.

Thank you, convener, and good morning to the committee. I welcome the opportunity to attend today’s meeting to discuss the Early Release of Prisoners (Scotland) Regulations 2025 and the Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2025.

The continuing rise in the prison population and its complexity is putting significant pressure on our prisons, impacting the ability of the Scottish Prison Service and its partners to ensure that prisons function effectively and safely and accommodate those who pose the greatest risk of harm. This morning, the prison population stands at 8,404, and, on Tuesday 21 October, the population reached 8,430, which is its highest level ever. The Government has taken a range of measures to reach a sustainable population, including changing the point of release for some short-term prisoners and increasing investment to strengthen alternatives to custody. I have also established an independent review of sentencing and penal policy, to inform future action.

However, given the recent rate of increase and the associated risks, further action must be taken. It is my view that the legal test for emergency relief has been met and it is necessary and proportionate to ensure that the Prison Service can maintain the security and good order of prisons and the health, safety and welfare of prisoners and prison staff. It is not a decision that was taken lightly, but the increasing number of prisoners in custody is now at a level at which the Prison Service’s assessed capacity tolerance has been breached on more than one occasion. A number of establishments are identified as being at red risk, and the SPS is at risk of not being able to comply with statutory duties and legal obligations.

Protecting victims and public safety remain my priority, and I recognise that the early release of prisoners is a cause for concern for victims. That is why, if the regulations are approved, they will have safeguards in place: only short-term prisoners with sentences of less than four years who are within 180 days of release are eligible, and there are strict exemptions for those in prison for sexual or domestic abuse offences and those with non-harassment orders. There are also statutory exclusions; details of those are included in the SSI, and they include prisoners with life sentences, registered sex offenders and those serving a sentence for domestic abuse. There is also a prison governor’s veto if there is immediate risk of harm to identifiable individuals or groups. Should a prisoner pose an immediate risk of harm, they will not be released.

The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2025 have been laid alongside the emergency early release regulations. They seek to amend the prison rules to allow governors to delegate the application of the governor veto to deputy governors. Deputy governors are experienced in risk management and risk-based decision making. They also chair the risk management teams in their establishments. The change is intended to provide resilience in the application of the governor’s veto by allowing governors in charge to delegate it to deputy governors where required—for example, when governors are unavailable. The deputy governor cannot delegate the veto further.

Emergency release is not the answer to addressing the prison population issue in the longer term, but it is essential to provide some critical relief to those who live and work in our prisons. I am grateful for the cross-party engagement that I have had on these important issues so far and I encourage committee members to support today’s regulations and to work with me on our collective goal of a sustainable prison population.

The answer to your question, Ms McNeill, is that across the board people are, on average, receiving longer sentences. The average increase in sentence length is 31 per cent.

This suite of regulations will transfer the functions and members of the existing police appeals tribunal into the Scottish tribunal structure. The Scottish tribunal structure was created by the Tribunals (Scotland) Act 2014, which introduced a new and simplified statutory framework for tribunals in Scotland. The Scottish tribunals consist of the First-tier Tribunal for Scotland and the Upper Tribunal.

The Police and Fire Reform (Scotland) Act 2012 gives police constables the right to

“appeal to a police appeals tribunal against any decision to dismiss ... or to demote the constable in rank”.

At present, police appeals tribunals are administered by the Scottish Police Authority, and the appeals are heard and decided by three members who are drawn from a list of independent, legally qualified members, which is maintained by the Lord President. It is proposed that, upon transfer, police appeals cases will be heard in the general regulatory chamber of the First-tier Tribunal for Scotland.

The first instrument before the committee is the draft First-tier Tribunal for Scotland General Regulatory Chamber (Police Appeals) (Procedure) Regulations 2025. The instrument provides for a set of rules regarding practice and procedure to be followed by the First-tier Tribunal when hearing police appeals cases. The procedure rules are based, so far as possible, on the existing rules of procedure for police appeals cases. Opportunity is taken to update some rules; for example, around electronic signing of documents and the electronic sending of documents. To aid consistency across the Scottish tribunals, some rules that apply to all chambers in the Scottish tribunals have been added; for example, the overriding objective to deal with cases “fairly and justly” is included in the updated set of procedure rules.

The Upper Tribunal for Scotland has an existing set of procedure rules, and those are to be used for any police appeals cases that are to be heard in the Upper Tribunal.

The second instrument is the draft First-tier Tribunal for Scotland (Transfer of Functions and Members of the Police Appeals Tribunal) Regulations 2025. If passed, the instrument will transfer the functions of the existing police appeals tribunal to the First-tier Tribunal. The instrument allows for the existing members of the police appeals tribunal to be transferred into the Scottish tribunals as legal members.

The regulations will also make transitional provisions to ensure that any live appeals before the existing tribunal are transferred to the First-tier Tribunal.

The third instrument is the draft First-tier Tribunal for Scotland General Regulatory Chamber Police Appeals and Upper Tribunal for Scotland (Composition) Regulations 2025. If passed, the instrument will make provision for the composition of the First-tier Tribunal and the Upper Tribunal when hearing any police appeals cases.

The existing composition of three legally qualified members is maintained for the First-tier Tribunal. The composition rules for the Upper Tribunal are drafted in such a way as to allow the president of the Scottish tribunals flexibility when determining the composition of the Upper Tribunal. If the instruments are passed, the Scottish tribunals will be able to hear such appeals from 29 December 2025.

The Lord President and the president of the Scottish tribunals were consulted regarding the draft sets of regulations in line with the requirements of the Tribunals (Scotland) Act 2014. Feedback provided was used to further inform the development of the regulations. Public consultation that included those regulations was also conducted and closed on 22 January 2025.

It is the case that the three instruments will enable the Scottish tribunals to hear those appeals. I understand that the Delegated Powers and Law Reform Committee considered the regulations on 30 September and that no points were raised.

Will Mr Kerr give way? Am I allowed to intervene?

I will try to be brief, because I might be at risk of repeating what I have said to the Parliament and to the committee previously. We are scoping out work on different models of care for the older prison population. The notion of a combined hospital, prison and secure care home would involve a substantial capital investment. Nonetheless, we are looking at a range of options.

Those are not quick options, but, in the meantime, the prison healthcare group, which I chair and which is attended by all health ministers, is seeking to ensure that there is better cross-Government and cross-service working to support older people in custody and, in particular, to support the Prison Service with the task that it faces.

It is also important to highlight that the new HMP Glasgow will be built in such a way that it will have smaller, more community-type units within the much larger establishment. As part of the design, it will have improved healthcare facilities.

Ms Medhurst might wish to add to that.

I will be very brief, convener.

I want to reassure members that this is not business as usual; this is an emergency situation, because of the risk to the health, wellbeing and safety of both staff and prisoners. Doing nothing is not an option. Our hard-working prison staff and their partners need to know that we have their back and that help is coming.

I understand very well the concerns that have been expressed here today, but I remind people that with those who were released in the first emergency release—this is the second time that we have done early emergency release—the change to the management of some short-term prisoners was set out in primary legislation. It was not some knee-jerk emergency reaction.

As I have said, this is the second time that we have done emergency release. When it was done last summer, two thirds of those who were released were within three months of their liberation date. These folks are due to return to their own communities in the very near future.

I make the plea to the committee that doing nothing right now is not an option and, in my view, would be a complete abdication of our duty. I therefore press the motion.

The legislation that changed the point of automatic early release for some short-term prisoners is not the Bail and Release from Custody (Scotland) Act 2023. The bill relating to short-term prisoners is the Prisoners (Early Release) (Scotland) Bill, which was passed earlier this year. As was done south of the border, for some short-term prisoners—not those who are serving sentences for domestic abuse or sexual offences; there were some other exclusions as well—we changed the automatic early release point from 50 per cent of time served to 40 per cent.