Seòmar agus comataidhean

I will just say first that, in my opening statement, I read out the testimony from the chief inspector and it was extremely positive about the way that the prison service is applying these regulations. Of course it should be the case that she should have the information that she requires. Allister Purdie may want to add to that.

I will take a bit of time to lay out some of the provisions, in order to make it easier for members to ask questions.

The Prisons and Young Offenders Institutions (Coronavirus) (Scotland) Amendment Rules 2022 Scottish statutory instrument extends for a further six months—to 30 September 2022—the application of certain modifications that were made to the prison rules, in response to the coronavirus pandemic, by the Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2020 (SSI 2020/122).

When I appeared before the committee in September to discuss those powers, I spoke of the need to ensure that the prison service was able to take all necessary measures as we approached another winter during the pandemic.

Of course, neither committee members nor I could have predicted the rapid emergence of the omicron variant only a few months later. That has left no doubt that it remains the case that the Government must ensure that the prison service can deploy precautionary and protective measures as necessary in response to the on-going and unpredictable pandemic.

Therefore, it is essential to extend the flexibility that was afforded by the previous rule amendments, in order to ensure the safety of those who visit, live and work in our prisons. I need not remind the committee that prisons are complex settings, with a significant number of vulnerable people.

While the current rule amendments have been in force, the omicron variant has brought peaks of around 150 cases to the prison estate in January and staff absence rates of 9 per cent. We continue to see Covid cases across the prison estate and, as of Friday 4 March, last week, there were 126 positive cases among 11 prisons.

Consistent with the current SSI in force, some powers are being extended to 30 September. The first set of powers are those that allow governors to suspend or restrict—if necessary and proportionate—in-person visits, purposeful activity and recreation, in response to local outbreaks.

The second set of powers are those that provide for extended timescales in relation to the isolation of large groups of individuals, so that governors and local national health service partners have the means to comply with Public Health Scotland and Scottish Government advice. That includes isolation of those who are symptomatic or have been in close contact with a person who is symptomatic, those who are identified as close contacts of a person who is symptomatic, or those who are new admissions, where isolation might prevent a Covid-19 risk.

The third set of powers are those that enable governors to extend—from the normal seven days to up to 14 days—the period that a prisoner is on home leave, if prisoners advise that they or someone in their home has coronavirus or has developed symptoms of coronavirus.

Members will be aware that, in advance of laying the SSI, the Scottish Prison Service wrote to stakeholders to seek views on the extension of those powers, and those responses have been published on the SPS website.

I am aware that stakeholders and members have concerns regarding the impact on human rights, and that there have been recent calls for transparency in the reporting of why and how frequently the powers are being used in the estate. As I reiterated in September, those powers are being and will be used only as precautionary measures and as a proportionate and necessary response to localised outbreaks in the prison estate. Decisions on their use will remain subject to multiagency decision making and public health advice and remain subject to independent scrutiny by Her Majesty’s chief inspector of prisons for Scotland.

Despite the vulnerability of those in prison to the highly transmissible omicron variant, the powers have not impacted on the vast majority of the prison population since October, and the prison service is providing as full a regime as possible.

In her summary report on the Covid-19 pandemic emergency liaison visit report, which was published in January, the chief inspector of prisons for Scotland commented on the proportionate way in which restrictions have been applied. She said:

“the overwhelming impression was of a calm and orderly atmosphere in prisons, and regimes that were restricted but safe. It was also clear that prisons were working hard to provide more opportunities and reduce restrictions wherever possible”.

I am aware that Teresa Medhurst wrote to the committee last week, with a collation of high-level information on use of the current powers from October 2021 to February 2022, and I am sure that members found that helpful. The information set out the proportionate use of the powers in seven prisons for a variety of reasons in response to local outbreaks. As requested, Ms Medhurst has helpfully committed to provide the committee with further high-level updates on the use of the powers.

Lastly, governors are already under a legal duty to act compatibly with human rights legislation in the discharge of their functions and they can use those powers only where it is necessary and proportionate to do so. It is the SPS position that those amendments have a positive impact on the protection of human rights.

With regard to articles 2 and 3 of the Human Rights Act 1998, the rule changes are designed to help the SPS to prevent and reduce the risks of the virus spreading within the estate. Without those measures being available, the article 3 rights of the prison population could be engaged.

The SPS also recognises the potential that utilising the measures could impact on prisoners’ article 8 rights. However, its view is that the powers can be and are being applied proportionately, in order to have the least possible impact on prisoners’ article 8 rights, and therefore they do not breach those rights.

The draft instrument provides for precautionary powers that are essential to the Scottish Prison Service’s continuing response to all unknown eventualities of the pandemic, whether nationally or locally. The emergence of this winter’s new variant has shown that we cannot be complacent, given the vulnerability of the prison setting to coronavirus.

On the assurances that have been given that the measures are being applied proportionately, their effect, and the effect of other measures, is demonstrated by the levels of Covid incidence in prisons, which are certainly much lower than many of us feared they could be when the pandemic started.

With that, I am happy to take members’ questions.

I will add something that might help Mr Greene in relation to that. The Government is not just listening and eager to act to see whether we can get agreement. If additional resources are required to help that process, given the impact that it has, particularly on defence lawyers, we will be willing to look at that as well. We are keen to do this for the reasons that Rona Mackay mentioned, but also, of course, because it will help us in addressing the backlog. We stand ready to support that if we can.

It is best to hear from Allister Purdie, who will be familiar with the internal processes in the SPS. For some restrictions, if prisons seek to extend them, that will come back to Government for approval.

Again, this was prior to my time in post, but that was evident in the criteria for release. The people in question had to be very close to their release date, for example, and there were certain categories of offender who were not to be included.

I know that attention has been drawn to the reconviction rate, although that is sometimes confused with readmission to custody, which can be a different thing. From memory, the reconviction rate is around 40 per cent. In any case, if we look at the categories of prisoners who were released, we will see that the situation was not at all unusual. For those on short sentences, you could be looking at a 50 per cent or sometimes 60 per cent reconviction rate.

There would, of course, be a public safety assessment. I am sure that I will be corrected if I am wrong, but I think that I am right in saying that the categories of prisoner for whom release was agreed took into account the risk to public safety and that that was agreed by all parties in the Parliament at the time. We would hope to try to achieve that again, if it turned out to be necessary.

That was mentioned and discussed, as were all possible means by which we could reduce the backlog. It must be borne in mind that the whole system would need to be ready for that; it would not just be a case of having a courtroom or, if it were applicable, a remote jury centre available. We thought that the stress on the court system generally, given what was being asked of it, could not be sustained for seven days a week. I know that there have been Nightingale courts down south, but we thought that, given the pressures on the system—it might be worth hearing from the officials on some of those pressures—providing £50 million or so this year for 16 additional courts would be the most effective way of reducing the backlog. My officials might want to say more about that.

Thank you for the opportunity to provide an opening statement on the justice provisions in the bill. I thank all those who engaged in the 12-week consultation process, which has helped to inform the development of the bill, and those who have provided written and oral evidence to the committee.

The majority of the justice provisions detailed in the bill are being progressed on a longer extension basis. That is in the context of the justice recovery programme, the “Justice Vision and Priorities delivery report—key achievements and impact of Covid 19”, which was published last month, and against a background of the backlog of cases as a result of the pandemic.

During the pandemic, we have seen significant changes in how the justice system has operated and adapted to changes in working practices as it has responded to public health guidance. Public safety has been the paramount consideration throughout and consequently required a change in how we work. That consideration clearly remains, as does a recognition that public attitudes to travel and general day-to-day activities will have been shaped by people’s experiences of the pandemic.

I expect that much of what we will discuss will be firmly rooted in the “Recover, Renew, Transform” programme. The measures in the RRT programme have contributed to recovering a viable justice system, responding flexibly to meet the challenges that Covid-19 presents, while delivering a more effective and efficient justice system now and for the future. That is fundamental to protecting our rights and freedoms and to addressing inequality.

The justice system has responded to, and continues to respond to, the challenges presented by the pandemic and societal changes that we must adapt to. Many of the technological changes that have been introduced, such as virtual custody hearings, the operation of remote jury centres and the electronic transmission of documents, have proven to be a successful response to the new working environment.

As the committee has heard in its evidence sessions, for some, those changes are seen as temporary measures to address the problems that have been caused by the pandemic and ought to apply only in that context. However, others see an opportunity for transformation that could form part of a new justice system.

In common with the committee, I agree that it is essential that we fully evaluate the impact of the measures—operationally and on court users—before they could be considered a permanent feature. Also, there will be some changes that are only ever temporary and that the Scottish Government has no intention of making permanent. For example, the extended time limits are purely to address the impact of the pandemic on the criminal courts.

Equally, I can provide reassurance that powers that are no longer required will not continue to be used. The bill includes suggested annual milestones at which the provisions can be reassessed. The bill also includes powers for measures to be expired or suspended ahead of the annual milestones. The Government remains committed to expiring or suspending any existing provisions that are no longer necessary.

It is proposed that measures requiring to be extended beyond November 2023 could be extended by regulations, using the affirmative procedure, potentially through to November 2025. That would mean that appropriate parliamentary scrutiny could take place, and would place a clear onus on all justice organisations to evidence how the powers have been used and to make the case for their retention.

In addition, and in an effort to be open and transparent, the policy memorandum to the bill highlights areas where stage 2 amendments might be progressed, noting other areas of activity that might have an impact.

I have listened carefully to the evidence sessions over the past two weeks and, to some extent, the evidence that was heard this morning. It is clear that there are a range of views on how best to respond to the impact of the pandemic on the justice system and to the opportunities and challenges that that raises for us all, but there is no doubt that there is agreement on the impact that the pandemic has had on the justice system.

I take on board all the comments, and trust that, as we consider the provisions and their individual and collective impacts, we can respond and address points of concern carefully and directly as a Parliament. I am happy to take questions, convener.

Of course it was taken into account. That is why Parliament debated the measure and agreed to it—I think that it might have done so unanimously; I am not sure.

Covid has meant that Governments and others have had to balance harms. Parliament decided that releasing those prisoners was the better option to take.

If there were to be a legal challenge, it would be for others to take that decision. From my point of view and the point of view of the justice portfolio, the important thing is to ensure that we can identify whether that has been the case. That is why we are carrying out the risk review process that I have previously mentioned. It is quite a lengthy, detailed and technical process with different layers, but it will be very thorough. I do not know whether it is possible to hear from Cat Dalrymple about how that will be carried out.

I should mention an issue that might well come up. Last week, I mentioned that we had 285 open cases. We were concerned and, as of yesterday, we have been able to check every single one of those cases. Not one is giving rise to any public protection issues for us.

On other cases in which people might feel that they have been wrongly assessed, my understanding is that, with the different layers of checks that are carried out in the risk review process, that is unlikely to be the case. However, it might be a good idea to hear about that from Cat Dalrymple.

I will respond first, as I believe that you asked a similar question in the chamber last week, and what I said in my statement should provide you with some reassurance.

You have asked about the offences that are involved, particularly whether they are sexual ones. I am grateful for the question, but I have to point out that LS/CMI is not an offence-based system and does not record the offence involved. As I have explained, it is a kind of generic triage system; although that might seem strange, that is entirely consistent with the risk assessment approach. As our briefing paper sets out, it is a general tool that looks at general factors, including potential offending, but part of the judgment applied relates to a different part of the assessment that looks at the nature of offending and provides structured consideration of that issue. I know that we have said this a number of times, but it is important to get across the fact that every risk assessment has different elements.

That element of the system does not have a score. For example, individuals convicted of a sexual offence will have bespoke risk assessments carried out. Those will likely focus not only on general offending but on risk of harm, which are particular to that type of offending. So, there are other processes that cover that.

You asked about what has priority. So far, we have concentrated on—this has been our priority—the 285 live cases. Moving on—