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It is quite a short amendment and we are trying to get our heads around what it would do and why. Is the scenario that you are explaining that, prior to the Parole Board considering someone’s release, Scottish ministers could direct their release and that would be the end of the matter? In which circumstance would Scottish ministers want to release someone earlier than the Parole Board would decide to? It is not clear cut; the case has not been made.

I will describe what my amendment 93 would do. If members look at page 11 of the bill, they will see, about halfway down, proposed new section 3D of the 1993 act, which is about parliamentary scrutiny of regulations made under proposed new section 3C. It says:

“Regulations under section 3C are subject to the affirmative procedure, unless”

the following applies, and there is a list of situations in which that scrutiny would be removed.

My amendment takes a simplistic approach, perhaps, but it would remove the rest of section 3D down to the end and just before the beginning of proposed new section 3E on the following page. The reason for that is simple. It would remove the Scottish ministers’ ability to release prisoners under section 3 of the 1993 act without some form of parliamentary scrutiny or, indeed, a vote.

Affirmative regulations are often debated at committee, which could be an appropriate place. Indeed, over the years, this committee has given a number of Scottish statutory instruments full scrutiny and debate. Sometimes, we have even pushed an SSI back or brought it to a vote when there was disagreement. Therefore, the affirmative procedure is a suitable means of scrutinising such decisions.

I will come on to amendment 38 in a second. It clearly goes a step further. However, my amendment 93 would remove the problematic part of proposed new section 3D.

The bill states that the Scottish ministers can release prisoners under the made affirmative procedure if they

“are of the opinion that, by reason of urgency, it is necessary to make the regulations without their being subject to the affirmative procedure.”

In her comments, the cabinet secretary said that that would impair their ability to make immediate decisions.

I will make two points in response. The first is that it is entirely possible for Parliament to make laws in an emergency situation when it is necessary to do so. The sort of emergency situation in this case remains unknown, because the cabinet secretary was unable to tell the committee what situations would be suitable for use of the power. During the passage of the coronavirus legislation, we, as a Parliament, even when not sitting in person, were able to pass quite sweeping laws in very short timescales. In fact, the Government makes use of emergency protocol to pass law when it suits it. Therefore, I cannot understand the rationale behind ministers arguing that their ability to make decisions would somehow be impaired.

There is the fundamental point that Parliament should be able to scrutinise such decisions, because we do not know the volume of prisoners who could be released or the reasons that could be given. At the very least, as a courtesy to the committee or to the Parliament itself, the Government should be forthcoming with its plans to do that, even at short notice, to give Parliament some say in the matter, so that it can be properly debated. It is a very sweeping power.

There is some definition of what would constitute an “emergency situation” on page 10 of the bill. For example, it refers to a

“situation which has resulted in any prison (or part of a prison) ... being unusable”.

Half of Greenock prison is unusable—does that mean that ministers could release prisoners on the basis that there was a water leak or damp? What if, for example, the Health and Safety Executive deemed a prison to be unsuitable and breaching international human rights legislation? Would that constitute a reason for release?

The answer is, “No, probably not,” and the answer from ministers in that scenario would probably be that it would not, but the provision as currently drafted says that they could do so. That is the problem.

I indicate to Katy Clark that the Conservatives will support both amendments in the group if she presses them to a vote.

I appreciate that the circumstances are in some ways abstract. We understand that powers are needed for pandemics and other health emergencies; such provisions are common to other legislatures. More extreme unplanned situations that have arisen in other countries include a prison fire, when people needed to be released quickly. That led to huge amounts of absconding, because people never came back after they left the prison gates. It would help if the Government were a bit clearer about what scenarios might constitute an emergency that such a power might be suitable for.

We would be happy to support amendment 6.

As it is not my amendment, I will let Russell Findlay speak to it.

I will in a second.

Amendment 38 goes a step further. I am not necessarily saying that the Government should not have the power; all I would be doing through my amendment is providing that regulations under section 3 be subject to the affirmative procedure—full stop. There would be no exceptions to that.

For the benefit of the cabinet secretary’s understanding, the rationale for the amendment was that victim support organisations themselves had written to the committee to say that they would like to be involved in the delivery, not just in the planning. That is in black and white.

If we want to know what they think their role is, perhaps we and the Government should ask them, and then they would not have to write to us the night before stage 2 consideration. I strongly advise that either the committee or the Government speak to the three organisations in question ahead of stage 3. If they feel that there is no role in delivery but there is a role in planning, we can find a way around that.

Of course, there are other ways of amending the bill as it is. The proposed new section 34A on “Duty to engage in release planning” is a duty to engage, not a duty to deliver. That whole paragraph, which refers to statutory “persons” and their role

“in the development, management and delivery of the release plan”,

could easily be split into two sections. There could be a group of people who are statutory named persons involved in development, and another group who are involved in delivery. As you rightly pointed out, cabinet secretary, there is a difference.

There will be solutions to that issue that will not place undue statutory duties on organisations that do not want or need them, but which, equally, will reflect the views of those organisations. I am sure that my colleague and I will work on such amendments with the Government, as it is willing to do so.

I support the amendments. The additional point that I want to make before the cabinet secretary responds is that we looked at the issue quite constructively at stage 1. There is clearly an identifiable issue, historically, of prisoners being released on a Friday without access to good and proper public services. I suspect that that is the reason why we stopped releasing people on Saturdays, Sundays and bank holidays. Many of the public services that people rely on upon release were reduced on those days.

Our concern, which perhaps underlines the amendments, is that the solution to that problem is not to condense the number of days on which someone can be released. That is a technical solution to the problem, but it does not solve the problem. The problem is that we should be improving access to services upon release and not simply releasing the same number of people but to a much shorter timescale. The concern that we have heard about that is that it will put huge pressure on the very public services that we are trying to ensure are delivered to prisoners on release, including services provided by social work departments and local authorities. The capacity of such public services is already quite overstretched. If they can provide services only from Monday to Wednesday, instead of having five days to staff those services, it either means reduced access to services or some people not getting the attention that they need upon release.

I think that we all understand the Government’s intention, but do we really need to put it in primary legislation? Could the Government have been a little more ambitious and made this a short-term measure, with a view to improving services so that we can use Mondays to Fridays in the way that they are used by the wider public? We understand the Government’s intention, but the bill seems like a blanket approach to the problem—and not necessarily one that will fix it, either.

If the Government is not minded to accept the amendments, one solution might be to make the provision temporary and, if the Government is so inclined, to commit in the bill to monitoring outcomes and taking action as a result. After all, what we do not want to see a couple of years down the line is Wednesday or Thursday being seen as the new Friday and people still being failed. That is clearly not an outcome that anybody wants, and I ask the Government to reflect on that, too.