Portfolio Questions – 16 January 2020
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Portfolio Questions – 16 January 2020

January 17, 2020


Johann Lamont (Glasgow) (Lab):
To ask the Scottish Government whether acquiring a gender recognition certificate gives a prisoner
any new legal rights regarding the decisions that are made by the Scottish Prison Service
about their accommodation. The Cabinet Secretary for Justice (Humza Yousaf):
Acquiring a gender recognition certificate does not and will not give a prisoner any
new legal rights regarding the decisions that are made by the Scottish Prison Service about
their accommodation. Decisions as to the most appropriate location
to accommodate transgender people are made on an individualised basis after careful consideration
of all relevant factors, including risk. Such decisions seek to protect the wellbeing and
rights of the individual and the welfare and rights of others around them, including staff
and inmates, in order to achieve an outcome that balances risk and promotes the safety
of all. No changes are planned to that part of the
process as a consequence of the proposed reforms on how a person can obtain a gender recognition
certificate. Johann Lamont:
The justice secretary might be aware of serious concerns among some people who have direct
front-line experience of working with women prisoners about the implications of the proposals
for changes in the gender recognition certificate process. Does he agree that women prisoners
are among the most vulnerable women in our society? What reassurances can he give that
a full assessment will be carried out of the impact of any changes to the rules on prisoner
accommodation on women prisoners and their wellbeing? Is he willing to meet women who
have direct experience of working with female prisoners, who will be able to underline the
seriousness of the concerns, ahead of final decisions being made on the Scottish Government’s
proposals? Humza Yousaf:
These are, of course, sensitive matters. I appreciate that the debate is a live one,
so we should stick to the facts. I hope that I can reassure Johann Lamont and
anybody else who has concerns—women on the front line and others—that proposed reforms
to obtaining gender recognition certificates would not make a material difference to the
existing process, because they do not give any additional rights in relation to the decisions
that are made on transgender prisoners. I again reassure Johann Lamont that a decision
about where to accommodate a transgender prisoner is made based on the balance of risk and safety
for inmates. A decision on a transgender woman wanting to move to a female prison involves
consideration of the welfare of the female prisoners in that prison. Consequently, some
such moves have been refused by the Scottish Prison Service because they would have caused
risk to the physical or psychological wellbeing of female inmates. This year, the SPS is reviewing the process
and protocols that are in place for such situations. I have told the SPS that it should consult
MSPs on the matter: Johann Lamont is welcome to contribute to that consultation. The Deputy Presiding Officer (Christine Grahame):
I call Kenny Gibson. You will have to be brief, because that was a long answer. Kenneth Gibson (Cunninghame North) (SNP):
I have been advised by a recently retired governor that there is at least one female
prison in which anatomically male prisoners and female prisoners are expected to shower
together. Can the cabinet secretary advise me whether that is the case? If it is, what
will be done to remedy the situation? Humza Yousaf:
I do not know the answer to that question, although it is the case that transgender women
are in the female prison estate. As I said, some requests by transgender women to transfer
to female prisons have been refused because of the risk that would be posed to women in
them. Of course, prisons have in place processes
to protect women. I would be surprised if the situation is as Kenneth Gibson has suggested,
but I will look into his concerns. As things stand, processes exist to ensure that we protect
vulnerable women in the prison estate. That will not change, regardless of the gender
reforms that the Government chooses to bring forward. David Stewart (Highlands and Islands) (Lab):
To ask the Scottish Government what plans it has for a new women’s community integration
unit in the Highlands and Islands. The Cabinet Secretary for Justice (Humza Yousaf):
In June 2015, the Scottish Government announced ambitious plans for the future of the female
custodial estate. Those plans include a new 80-place national facility to be built at
Cornton Vale, and up to five new community-based custodial units, each accommodating around
20 women at locations across Scotland. The Scottish Prison Service is working towards
opening the new national facility and the first two CCUs in Glasgow and Dundee by the
end of 2021. The custodial arrangements for women from
the Highlands and Islands will remain as they are. Decisions on the next phase of CCUs will
be dependent on the risk profile and community locations of the women in custody, as well
as on the lessons that are learned in bringing the first phase of CCUs into operation and
how that impacts on the design and operation of the remaining CCUs. David Stewart:
I thank the cabinet secretary for his answer. In 2019, 24 women from the Highlands and Islands
and Moray were in custody, serving their sentences in HMP Grampian or Cornton Vale. As the cabinet
secretary knows, distance from families affects relationships at home and behaviour within
the prison environment. Will the cabinet secretary consider a community integration unit for
the Highlands and Islands for women who are on short sentences, remand and community integration,
or who are nearing the end of their sentences? Humza Yousaf:
David Stewart is aware that the reason why a specific facility for women no longer exists
in HMP Inverness is low numbers. It is not possible or justifiable to provide a meaningful
regime for women there. However, he makes the important point that the other locations
of the community custody units have not been decided. I suggest to David Stewart that he
make representations to the Scottish Prison Service. If he thinks that there is justification
for a community custody unit in the Highlands and Islands, he is free to put that case. Liam Kerr (North East Scotland) (Con):
In 2018, it was reported that the Dundee women’s unit would open in late 2020. However, Audit
Scotland reports suggest that it will not open until 2021 or 2022. Is the cabinet secretary
in a position to give further certainty? Humza Yousaf:
I will reflect carefully on what Audit Scotland has said. Liam Kerr is aware that there have
been challenges in the market, particularly in the construction market. Therefore, we
will reflect carefully. When I have an update on timescales, I will make sure that Liam
Kerr knows about it. Donald Cameron (Highlands and Islands) (Con):
To ask the Scottish Government how many prisoners were released early in 2018-19, who had previously
been released early and recalled to prison for breach of licence. The Cabinet Secretary for Justice (Humza Yousaf):
The Parole Board for Scotland confirmed that, in 2018-19, of 441 individual prisoners who
were considered at an immediate re-release hearing, 29 were recommended for release following
recall. That equates to 7 per cent. In addition, of 313 individual prisoners considered at
a first or subsequent review following recall, 23 were released. That also equates to around
7 per cent. Donald Cameron:
A freedom of information response that the Scottish Conservatives received from the Scottish
Prison Service shows that 41 offenders were recalled to prison for breaking the terms
of their release, but were then re-released on home detention curfew. In the light of
that, and given the clear risk to the public as well as the need to maintain confidence
in the system, what steps will the Scottish Government take to understand that issue? Humza Yousaf:
There has been a significant amount of thought about and review of the home detention curfew
aspect of electronic monitoring. Donald Cameron knows that, because his party rightly raised
the issue in the wake of the tragic death of Craig McClelland. There were two inspectorate reports, and Parliament
debated and agreed changes to the home detention curfew. The home detention curfew is more
stringent than it ever has been. We have gone from 300 prisoners being released to—this
week—30 prisoners being released on home detention curfew. We have to be aware of the
error terror, as it has been described, that exists about the regime. Nonetheless, we have
a more stringent regime on home detention curfew. I will continue to reflect on what more we
can do to give the public confidence, but people can have absolute confidence that,
on the back of two independent inspectorate reviews and because of the changes that we
have made to home detention curfew, we have a more robust system in place. James Kelly (Glasgow) (Lab):
On home detention curfew, why was there a significant breach of parliamentary rules?
When the order was laid, Parliament was given only three days’ notice and not 28 days.
Parliamentary protocol was therefore treated with absolute contempt. The Deputy Presiding Officer:
I was about to call James Kelly again. I do not know why I was going to do that. I call
the cabinet secretary. Humza Yousaf:
I am not offended in the slightest by that comparison, Presiding Officer. I really disagree with the premise of the
question and how James Kelly asked it. I will, of course, appear in front of the Justice
Committee to explain exactly why that was done, but any objective observation of the
figures shows that, towards the end of the year, there was a spike in people requiring
electronic monitoring. Much of that is, of course, outwith my control. I do not determine
who has electronic monitoring: it is decided by a range of operators independent of the
Government. I could have chosen to wait until we came
back from the Christmas recess before I laid the order, but that would have created a potential
risk. Some people might have been released on electronic monitoring by court order, but
there might not have been enough stock, or it might have been that the stock could not
have been used because the Scottish statutory instrument had had to wait until after the
festive recess. I chose to lay the instrument before the Christmas recess. That is not ducking
and diving in respect of parliamentary scrutiny. I will appear at the Justice Committee next
Tuesday. No doubt James Kelly will be at that meeting and will ask me questions on the subject.
Not only that, but 40 days of parliamentary scrutiny will still be available, in which
Parliament will be able, if it so wishes, to choose to annul the instrument. I completely reject the premise of James Kelly’s
question. If I had taken the route that he has suggested, we might well have been unable
to use electronic tags, in which case he would have been the first to demand that I come
before the Justice Committee to explain how on earth we had got ourselves into that situation. Peter Chapman (North East Scotland) (Con):
To ask the Scottish Government what action it is taking to reduce crime in and around
court buildings. The Cabinet Secretary for Justice (Humza Yousaf):
Decisions on how to allocate police resources are a matter for the chief constable, but
Police Scotland continues to work with partners to ensure that there is appropriate provision
to keep the public safe. More than 100 full-time officers are deployed across the Scottish
court estate, and in the event of incidents occurring outwith court premises, resources
are deployed according to how the call is prioritised. The number of officers who are
deployed at court buildings is kept under review, and where intelligence suggests that
there may be potential for unrest, such as during high-profile cases, action will be
taken to ensure that appropriate resources are deployed. The Scottish Courts and Tribunals Service
works closely with Police Scotland to assess any risks and take appropriate measures. Police
Scotland has recently taken the step of formalising the function of police officers within court
buildings and it has signed a formal memorandum of understanding to that effect with the Scottish
Courts and Tribunals Service. Peter Chapman:
I thank the cabinet secretary for that response, but figures that have been released by the
police in response to a freedom of information request show that, in just the previous financial
year, police attended nearly 400 incidents at sheriff or justice of the peace courts,
including 30 in Aberdeen and seven at Peterhead. Over a quarter of those incidents resulted
in a crime being reported. Presiding Officer, if we cannot keep people
safe when they are attending court, how can the public have confidence in the justice
system? The Deputy Presiding Officer:
I do not think that you are asking me that question. I call the cabinet secretary. Humza Yousaf:
People can have confidence because we have one of the lowest crime rates in 40 years.
Violent crime has fallen by 46 per cent over the past decade, and they can have confidence
in that. They can also have confidence because we have more than 1,000 additional officers
on the street compared with the number that we inherited, which is in stark contrast with
the position in the rest of the UK. Police Scotland will, of course, attend incidents
that take place where that is appropriate. Last year, 200 items were seized from people
who were trying to make their way into city-centre court rooms, but I note that that number was
down from 1,000 the year before. The number of knives that were seized at courts went
down from 80 to 35 last year. The formalising of the relationship between Police Scotland
and the Scottish Courts and Tribunals Service is clearly paying dividends. Claire Baker (Mid Scotland and Fife) (Lab):
To ask the Scottish Government what progress the Scottish Sentencing Council is making
with the development of multiple guidelines on sexual offences. The Cabinet Secretary for Justice (Humza Yousaf):
The Scottish Sentencing Council is an independent advisory body. I spoke yesterday with Lady
Dorrian, in a very constructive and productive meeting. She advised me of a range of scoping
and preparatory work that had been carried out on the guidelines, including stakeholder
engagement, data gathering, court observation and a review of available evidence. The council commissioned a national survey
on public perceptions of sentencing, which was published on 2 September 2019. A sexual
offences working group committee has been established, which will lead on the development
of the guidelines, including recommendations to the council as to their scope, content
and approach. It is a complex and sensitive area, which
requires careful consideration, an evidence-based approach, and appropriate levels of research
and consultation. It is vital that the guidelines be fit for purpose. Claire Baker:
Sentencing is dependent on the definition of the offence. I thank the cabinet secretary
for his recent letter, following my question on violence during consensual sex. In that
letter, the cabinet secretary confirms that the police and the court do not provide information
on cases involving violence during what began as consensual sexual activity. Will he explore
whether there is a way to extract such data, where the defence of consent is used in such
cases, and will he consider commissioning research into the level of violence in consensual
sex in Scotland? Humza Yousaf:
I thank Claire Baker for raising that issue. I reiterate what I said to her previously,
and also what I said in the letter, that it is my understanding that “consent” can
never be a justification for assault, let alone for murder. She has asked me to consider a couple of things
in terms of the data available, and whether we can extract it. I will speak to stakeholders
about that. She has also asked me to reflect carefully
on whether we could commission research, and I promise her that I will take that away:
I will speak to my officials and to stakeholders to see whether we can do that. There is already
quite a programme of research, as things stand, but nonetheless I will give Claire Baker’s
requests careful consideration and let her know the outcome of those considerations. Gail Ross (Caithness, Sutherland and Ross)
(SNP): To ask the Scottish Government what access
and communication provisions will be made in the new justice centre in Inverness for
people from remote rural communities. The Cabinet Secretary for Justice (Humza Yousaf):
Although the Inverness justice centre will not replace local courts in the Highlands
and Islands, it will allow people from rural communities to access specialist court services
for children and vulnerable witnesses, and will enable a wide range of justice and third
sector support organisations to enhance their support to rural communities through improved
facilities and access to digital technology. The flexible use of space throughout the centre,
and the wide access to digital technology and videolinks, will help those organisations
communicate with and support those people in remote rural communities who already use
their services, and will hopefully encourage others to access services. The justice centre will also incorporate a
dedicated evidence and hearing suite, supporting the legislative presumption that children
in high court cases, and through time all children and adult vulnerable witnesses in
all serious criminal cases, will no longer attend a criminal trial. Gail Ross:
I welcome that news. It can be particularly difficult for my constituents
who live in remote rural locations to access justice, particularly for those who have additional
access needs. Does the cabinet secretary agree with me that technology and innovative thinking
must be applied to ensure that the new justice centre fully serves the needs of all those
in the north? Humza Yousaf:
Yes, I agree with Gail Ross; she has an exemplary record in raising such matters concerning
not only her constituents but rural communities more widely. I can give her an absolute reassurance
that technology is central to the working of the justice centre. The flexible use of
space, and wide access to digital technology and videolinks, really help organisations
communicate with and support people in remote and rural areas. The evidence and hearing
suite, with its own discrete entrance, which is really important, will provide a specially
designed child-friendly hearing room, allowing for a trauma-informed approach when prerecording
evidence. If Gail Ross or any other member requires further information in that regard,
I would be more than happy to provide more detail in writing. Liam McArthur (Orkney Islands) (LD):
We know the importance of family contact, and the particular difficulties faced by people
living in the islands. Last year, Families Outside gave the Justice Committee evidence
that overcrowding in prisons is making it very difficult to facilitate video visits,
but that other models of facilitating that sort of contact have been successfully trialled,
elsewhere in the United Kingdom and internationally. Will the cabinet secretary undertake to discuss
with the Scottish Prison Service and the third sector ways in which video visits can be facilitated
for not just those from the islands, but other rural areas too? The Deputy Presiding Officer:
Cabinet secretary, if you would be brief, it would help us to get the other members
in. Humza Yousaf:
In short, I agree with Liam McArthur, and I will take those conversations forward with
the SPS. I have tremendous respect for Families Outside. I recognise the issue that Liam McArthur
raises, and if there is any way in which we can help with family contact, which helps
with rehabilitation, I will be more than happy to explore that further. Gordon MacDonald (Edinburgh Pentlands) (SNP):
To ask the Scottish Government whether it will consider specific measures for parole
in no-body murder cases. The Cabinet Secretary for Justice (Humza Yousaf):
I recognise how traumatic any murder must be for the families that are involved, but
that must be particularly the case when the body has not been disclosed. In relation to Gordon MacDonald’s question,
I intend to bring forward changes that will explicitly state that, for the very first
time, the Parole Board for Scotland may take into account when determining release the
failure of an individual to disclose the location of a victim’s body. Gordon MacDonald:
I thank the cabinet secretary for his answer and for the discussions and meetings that
he has held with me and my constituents about how to address the issue. Will the cabinet secretary outline what further
measures the Scottish Government has in place to ensure that the families of murder victims
receive the support and protection that they need? Humza Yousaf:
I thank Gordon MacDonald for his campaigning on the issue, along with families from his
constituency who have suffered the most severe of losses. In meetings with those families,
I have often been struck when those who are involved in cases in which the body has not
been located have told me that they are retraumatised day in, day out and that they have no sense
of closure. Therefore, I am pleased that, as I said, the
changes will mean that, for the first time, it will be explicitly stated that the Parole
Board may take into account the non-disclosure of a body. On other available support for such families,
we have helped to fund a support service for families bereaved by crime, which is led by
Victim Support Scotland. I am more than happy to write to Gordon MacDonald with more details
about other support. Of course, families that have already been bereaved by crime can access
that service, so I encourage any MSP who has such a family in their constituency or region
to make use of that service, if appropriate. The Deputy Presiding Officer:
We have to move along quickly. I will take question 8, but it all has to be brief. Alexander Burnett (Aberdeenshire West) (Con):
To ask the Scottish Government what progress is being made with the Police Scotland digital,
data and ICT strategy. The Cabinet Secretary for Justice (Humza Yousaf):
The delivery of police ICT projects is a matter for the Scottish Police Authority and the
chief constable. Police Scotland continues to make good progress on a number of ICT projects
that are key to delivering on its DDICT strategy and which support the transformation of the
service. The introduction of mobile devices to front-line
police officers is one of those projects. It is scheduled for completion by 31 March
2020. The project has received an overwhelmingly positive response, with some officers suggesting
that it is the most positive piece of enabling technology in the past decade. Alexander Burnett:
Last year, Police Scotland confirmed to the Justice Committee that the Scottish National
Party Government had underfunded its digital strategy, with the result that crucial equipment
is not being rolled out quickly enough. With considerable extra funding coming to
the Scottish budget, thanks to the Barnett consequentials from United Kingdom Government
investment, will the SNP now properly fund the strategy and finally move our police into
the 21st century? Humza Yousaf:
I would love Alexander Burnett to write to me after portfolio question time and tell
me the exact details and amounts of consequentials that are coming to Scotland. He will forgive
me if I have a healthy degree of scepticism about the amounts of money and consequentials
that are being bandied about by the UK Government. This financial year, we increased Police Scotland’s
capital budget by 52 per cent. Of course I hear the calls to examine and explore whether
the capital budget should be increased further, and I will give serious consideration to making
that case to the Cabinet Secretary for Finance, Economy and Fair Work. I am sure that when
Alexander Burnett’s party sits down with the finance secretary in budget negotiations,
they will bring the issue along as part of the negotiation. I note that, as well as what the Scottish
Government can provide in finances, it would be very helpful if the UK Government gave
back the £125 million that it stole from Police Scotland in VAT.

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