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Baroness Carnegy of Lour: I listened with some care to the proceedings in relation to this aspect of the English Bill. Various matters make me anxious. However, perhaps I can listen to the response of my noble and learned friend as to how the process will work and then ask a question.
Lord Mackay of Drumadoon: In replying to Amendment No. 138, with the leave of the Committee
I shall reply also to Amendments Nos. 142 to 146, all of which have been spoken to by one or other Members of the Committee.Amendments Nos. 138, 143 and 144 in the name of the noble Lords, Lord Sewel and Lord Macaulay, seek to make the award of days of early release the function of an independent prescribed person, leaving it to prison rules to specify who that prescribed person will be. On the contrary, Amendment No. 142 in the name of the noble Earl, Lord Mar and Kellie, would have the effect of making the Parole Board responsible for such awards during the first 12 months of the sentence, though I assume--perhaps it can be confirmed in due course--that the intention is that the Parole Board would handle all such awards.
Amendment No. 145, tabled by the noble and learned Lord, Lord McCluskey, would prevent the prison rules prescribing the person who would make the assessment and provides that either a sheriff or a sheriff principal should consider and make recommendations on appeals regarding assessments. It is obvious, therefore, that among the amendments before the Committee there is a range of views as to how this matter might be approached. Against that background it may be helpful if I explain in a little detail why the Government have chosen the system set out in the Bill. Before I do so, I remind the Committee that rules made under the Prisons (Scotland) Act 1989, which is referred to in subsection (5) of Clause 30, would require to be laid before the House and would be subject to the negative resolution procedure.
The Bill reduces the opportunity for early release in the manner I described earlier and will require that it is earned by good behaviour in prison. Since that is the basis for early release, it appears clear to the Government that those based in the prisons are best placed to make the individual assessments that are necessary. I need not explain to the Committee the structure and management within prisons, but there are a number of governors under the senior governor and below them prison officers of different ranks. Prison staff work with prisoners on a day-to-day basis and are trained to have the necessary expertise to assess the behaviour of prisoners and to gauge the progress individual prisoners are making. The more senior the rank and the greater training and experience the prison officer or governor has had, so the ability to carry out that exercise will increase.
Even if the function which would require to be discharged to fulfil the provisions of subsection (3) of Clause 31 were to be handed to an outside body--whether a sheriff, the parole board or whoever--such a body or individual would be reliant on reports coming from prison staff. The Bill calls for a process of continuous assessment, with up to 12 days being capable of being awarded to each prisoner for every two months of the prison sentence. On current prison populations, that implies somewhere in the region of 30,000 decisions to be made each year. It may assist the Committee to know that the Parole Board of Scotland currently sits some 24 times a year to consider between 500 and 700 cases where determinate sentences have been imposed. The number varies from year to year as
the prison population comes towards the period for eligibility for early release. It is clear that the Parole Board could not be expected to take on a case load of the nature predicted under the Bill.Nor do we believe there is any need for a body of the nature of the Parole Board to do so, the assessments involving, as they do, whether a prisoner's behaviour in custody over a two-month period would merit 12 days' early release. If the idea of someone independent from the parole board was to be selected, one would require him to create a cadre of independent persons with a back-up staff quite enormous in number; so also if sheriffs or sheriffs principal were to be involved.
We propose that the assessment procedure be laid down in prison rules, subject, as I have already indicated, to parliamentary scrutiny. We envisage that the governor or another senior manager in the prison will convene an assessment board to consider reports from relevant staff on each prisoner according to a range of criteria set out in the prison rules which are to be made. Decisions on the award of early release will be made following the meeting of this internal assessment board. If a particular prisoner is dissatisfied with the decision we envisage that a three-stage appeal process, based on the existing complaints procedure in Scottish prisons, will apply. As part of that appeal process the rules will empower the Secretary of State to appoint a person to consider the appeal and report to him. In all normal circumstances he will ask the prison complaints commissioner for such a report. The commissioner will provide an independent element to the process if that proves to be necessary. He will not have power to overturn the governor's decision by his own hand but will expect the chief executive of the Scottish Prison Service, acting on behalf of the Secretary of State, to take account of any factors which he may identify before any final decision is made.
We believe that to ask sheriffs or sheriffs principal to consider appeals regarding early release would be to mix the different roles of those involved in the criminal justice system in an inappropriate way. Unlike the prison complaints commissioner, they are not used to dealing with complaints about decisions regarding behaviour in prison. Moreover, the need for urgent decisions on such appeal cases would represent an unwelcome burden for sheriffs at a time when court resources in most parts of the country are reasonably stretched.
Our position is that no one outwith the Scottish Prison Service will be in a position to make the necessary assessment of the prisoner's behaviour on which the initial award of days of early release depend. We accept that there is a case for independent scrutiny, but we believe that that will come from the involvement of the Scottish prison complaints commissioner who has been operating recently and whose work commands respect.
I now deal with a number of points raised by Members of the Committee. The noble Lord, Lord Thomas, indicated that he considered it offensive that an individual employed by a company which had a contractual arrangement with the Government should have any role to play in these matters. As Members of
the Committee will know, there are as yet no private prisons in Scotland. But the comment made about offence may be--I do not do so--turned round the other way. People running private prisons in England are trained: they are performing a very important function. I am unaware of any evidence which suggests that the fact that they are working for a commercial company rather than the prison department causes them to operate in a different way than they might otherwise do.I am not sure what lay behind the comment of the noble Lord, Lord Thomas. I do not know whether he is suggesting that an individual employee might be more inclined to refuse early release days so that the prisoner stayed in prison longer and his employer earned more money, or whether he is suggesting the contrary. I suggest that because private prisons are subject to supervision, it would be quite inappropriate to suggest that those employed at governor or senior management grade in those prisons are any less capable of doing this work in a responsible manner than their colleagues who are currently employed by the prison department.
Dealing with the points raised by the noble Lord, Lord Sewel, I hope that he will accept that because the assessment board will be detached from immediate contact with the prisoner--in other words, it will not be the prison officers working on individual wings who will be carrying out the assessments that will require to be made under Clause 31(3)--the risk of graft or favouritism will be minimised, if not completely eliminated. Whoever is to do the assessment will clearly require reports from the wings. I suggest that governor grades would be in a far better position to be alive to the risk of graft or favouritism than would an independent body or sheriff at some distance from the prison who could not begin to have the same knowledge of staff as the prison governor. Therefore, although I understand why the noble Lord raised these matters, I believe that the danger of any improper pressure or favouritism is fairly minimal. I believe that that was part of the concern which lay behind the noble and learned Lord, Lord McCluskey, tabling his amendments.
Clearly, this is a new procedure which will have to be carefully worked out with those who run the prisons. The procedure will require incorporation in the prison rules which will be brought to Parliament and laid before the House. However, in my submission, if that is done there is no need to accept any alteration in the procedure that we propose. Therefore, I hope that all noble Lords will withdraw the amendments which stand in their names.
10 p.m.
Lord Thomas of Gresford: Before the noble and learned Lord sits down, perhaps I may ask him a question. He said that those who are based in a prison will make the decision. That implies that if a prison is run by a private company--I use Group 4 simply as an example--decisions are made by employees of the company. If there is a procedural unfairness in what those employees do, would the noble and learned Lord consider that to be a matter of public law and therefore subject to judicial review? I ask for enlightenment.
Would the noble and learned Lord consider that that was a matter which would breach the European Convention on Human Rights? These are decisions about the liberty of the subject. Does he think it right that such important decisions should be taken by private persons, who are not employed by the state, who are not public servants? Does he believe that people who are simply under a contractual duty to their employer can take decisions to the extent that a prisoner can be held in prison for days, weeks or even months without any proper recourse? Is that a matter of public law? Is it subject to judicial review? Perhaps the noble and learned Lord could help me.
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