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Mr. James Wallace (Orkney and Shetland): I shall speak to amendment No. 145, which is phrased in almost identical terms to that moved by the hon. Member for Dumbarton (Mr. McFall). I do not wish to detain the House long, because the hon. Member for Dumbarton made the pertinent points about the Government's proposed scheme for early release.

The Government will require prisoners to show positive behaviour rather than an absence of bad behaviour. The hon. Gentleman has underlined the scale of that undertaking and the number of reviews that will be needed. The system will also lead to pressure in prison. The fact that officers will be responsible for filing reports could put them in the way of intimidation and pressure from prisoners or could open the way to favouritism. I do not believe that to be satisfactory. It may not happen, but the concern has been raised before and has never been properly allayed by Ministers.

The other important point relates to the recent report by the chief inspector of prisons in Scotland, referred to by the hon. Member for Dumbarton. If prisoners are to be obliged to show positive behaviour to achieve early release, the resources ought to be available for them to follow various courses that might lead to early release. Under the present regime, many courses that would lead to rehabilitation are not possible because of a lack of resources. That problem will become more acute under the Government's proposed new early release regime.

I do not believe that the Government have thought through the practical implications of their proposals. That is why the system proposed by the two amendments, under which the prescribed minimum standard would be the absence of proved misconduct reports, is more practical and would, in the long term, lead to less tension in Scotland's prisons.

Mr. Gallie: I should like to make a quick contribution, picking up on some of the points made by the hon. Members for Dumbarton (Mr. McFall) and for Orkney and Shetland (Mr. Wallace). I accept some of their points, but do they honestly believe it right that someone who is sentenced to four years should be released automatically halfway through that sentence? The Bill addresses that and I believe that people in Scotland will warmly welcome it.

Lord James Douglas-Hamilton: The prescribed minimum standard defined in amendments Nos. 132 and 145 is:

"an absence of proved misconduct reports."

We discussed a similar proposal in Committee on 28 November, when I explained that we thought the proposal unhelpful.

The earning of early release should require more than simply not breaching prison discipline. Prisoners should have to demonstrate positive good behaviour and that they are making constructive use of their time in prison to address their offending behaviour. For the first 12 months of a sentence, the prescribed minimum standard of behaviour will be set out in the prison rules.

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Examples of behaviour that might attain the minimum standard are: conforming with the prison rules; avoiding violent or threatening behaviour, intimidation and aggressive language; co-operation with staff; respecting others' property; and abstaining from drugs and alcohol. That is no less than should be expected of prisoners. I invite the hon. Member for Dumbarton (Mr. McFall) to withdraw the amendment.

Amendment negatived.

Amendments made: No. 228, in page 28, line 11, at end insert 'the 1989 Act and'.

No. 229, in page 28, line 13, leave out 'the 1993 Act' and insert 'either of those Acts'.

No. 230, in page 28, line 16, after 'amendments' insert--

'(a) to the 1989 Act made by sections 38, 39 and 40 of, paragraph 8(2) and (4) of Schedule 1 to, and the repeal of the words from "including" to the end of section 3(1) of that Act made by Schedule 3 to, this Act; and
(b)'.

No. 231, in page 28, line 17, after '(10)(b)' insert ', (11)(a)'.--[Lord James Douglas-Hamilton.]

Clause 30

Early release

Lord James Douglas-Hamilton: I beg to move amendment No. 37, in page 28, line 27, leave out 'three months or more' and insert 'more than two months'.

Madam Speaker: With this, it will be convenient to discuss Government amendments Nos. 38, 39, 241, 233, 40, and 102, Government new schedule 2, and Government amendments Nos. 121 and 103.

Lord James Douglas-Hamilton: Amendments Nos. 37, 38 and 39 have been tabled to address a point raised in Committee by the hon. Member for Dumbarton (Mr. McFall). He was concerned that if the new early release scheme applied only to those serving three months or more, someone serving a slightly shorter sentence would have to serve longer than someone sentenced to exactly three months who earned full early release.

We have dealt with that point by providing in amendment No. 37 that all those serving more than two months will be eligible to earn early release. At the same time, we have made it clear in amendments Nos. 38 and 39 that no prisoner can be released earlier than the day after his assessment.

Amendment No. 233 was drawn up following discussions in Committee on the procedure under which a prisoner may make appeals in relation to awards of early release days. Since consideration in Committee, we have given full consideration to that procedure. The details will be spelled out in the prison rules.

We now envisage a three-stage process. The amendment makes it clear that there will be more than one level of appeal. The process will be based on the existing complaints procedure. A governor or other senior manager will convene an internal assessment board to make initial decisions on the award of early release. If the prisoner is dissatisfied with the decision, his first avenue of appeal will be to the prison internal complaints

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committee. Each prison has such a committee, chaired by a senior prison manager, with a minimum of three members. Membership is flexible, so that staff who were previously involved in the case will not become reinvolved at this stage.

If, following consideration of the case by the complaints committee, the prisoner remains dissatisfied, he will have a further appeal to the governor in charge, who will reconsider the case. It should be noted that half of all general complaints under the existing complaints procedure put to internal complaints committees are resolved at that stage and do not need to go to the governor, reducing the burden on him.

If the prisoner is still unhappy about the decision following reconsideration by the governor, there will be an appeal to the Secretary of State. Amendment No. 233 makes it clear that the rules may prescribe the Secretary of State for that purpose. The Secretary of State's functions in relation to the appeal will be exercised by the chief executive of the Scottish Prison Service, acting in the name of the Secretary of State. The Scottish prison complaints commissioner will become involved at that stage. Under the terms of the amendment, the rules will empower the Secretary of State to appoint a person to consider the appeal and report to him. He will, in all normal circumstances, ask the commissioner for a report on the case.

The prison rules would, therefore, formally specify the internal complaints committee, the governor in charge and the Secretary of State as the persons prescribed to consider appeals. The commissioner would provide the independent element in the process. He would not have the power to overturn the governor's decision at his own hand--which is what we had envisaged in Committee. However, we would expect the chief executive to take serious account of any factors that the commissioner may identify in his report in making his final decision on the case. I invite the House to accept the amendment.

Mr. McFall: I thank the Minister for saying that the amendment was tabled to address my proposals in Committee. Under the current arrangements, a prisoner sentenced to 12 weeks could be released before a prisoner who had been sentenced to 10 weeks. Therefore, a judge could sentence someone to 10 weeks in prison and the prisoner could say, "Give me 12 weeks as I will be out sooner." That was absurd. However, I have news for the Minister: the amendment fails to rectify the position completely.

I shall be brief, but constructive. In his letter to me dated 12 December, the Minister wrote:

"I agree we should avoid any possibility of a situation where an offender sentenced to a period above the threshold can, by earning early release, reduce his sentence below that of a person who falls just below the threshold and who is therefore not eligible for early release. I aim to table amendments to achieve this on report."

However, lowering the threshold has not achieved the desired result. For example, a prisoner sentenced to 70 days could be released after 56 days, whereas a prisoner sentenced to 59 days could be released only after 59 days.

The amendment brings those serving between 60 and 89 days into the same position as those serving 90 days or more. In 1994, 1,366 prisoners came into that category, which represents about 58 per cent. of those serving fewer than 90 days. So the amendment would give large numbers of prisoners some prospect of early release that would not

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have been available to them in the original Bill. What about those serving up to 59 days? Are they still to be denied any early release? That anomaly persists. In 1994, 901 or 91 per cent. of the 990 prisoners in that category were serving 30 days or fewer.

The Government have some thinking to do, perhaps in another place. They could table amendments to rectify the anomaly or they could revert to their previous approach, with automatic release at two thirds of the sentence for those serving up to 59 days. Alternatively, they could introduce a different basis, such as a banding system, for calculating early release for those serving fewer than 60 days but more than seven days.

Any such solution would allow consistency with the concept of earned as opposed to automatic release. It would give short-term prisoners the opportunity of early release analogous to long termers; it would give short-term prisoners an incentive to good behaviour; and it would allow relatively easy calculation of release dates, because there would be no need for assessment. In that constructive vein, I ask the Minister to re-examine the issue to provide some consistency.

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