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Lord Sewel: Having heard the Minister on this occasion and not being entirely convinced with his arguments, I think it may still be appropriate to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 142 to 144B not moved.]
On Question, Whether Clause 31 shall stand part of the Bill?
The Earl of Mar and Kellie: I wish to take this opportunity to give an assessment of what I believe will happen in prisons if the early release scheme is implemented: first, a state of insecurity across the prison community. Prisoners will only know the last possible day of their imprisonment, not the first possible day of their release. The staff will be for ever having to help prisoners sort out when they might be released. That means asking the general office to work it out and entails many telephone calls and administrative work. At present prisoners know when they will be released, unless they get themselves on report. Those members of
staff concerned with post-release supervision and arrangements for, say, accommodation, will have difficulty in assessing likely dates of liberation.Secondly, the extra six days for above average behaviour and participation in programmes is bound to be based on subjective criteria. There may be consistency in every prison, but that consistency will be impossible to achieve across the 22 prison establishments and one possible private prison. The Scottish Prison Service-wide inconsistency will relate not only to the subjective criteria but also to the availability of programmes in which to participate. Is not that a complicated can of worms, liable to upset prison morale and reasonable behaviour?
Thirdly and finally, will not prison governors faced with overcrowding put out a quiet word that everyone is to have the full allowance unless they have been on report and the charge proved?
All that will be in replacement for a system that works well in practice.
10.45 p.m.
Lord McCluskey: I had intended to deal with this matter when the noble Earl, Lord Mar and Kellie, spoke in relation to Clause 38. But I understand from him that he does not intend to oppose Clause 38 and, accordingly, this is the appropriate time to raise the matter.
We are now deeply into the early release provisions of the Bill. The Committee indicated earlier that it supported Amendment No. 136A, which I am bound to say makes a dramatic difference to all the calculations, as the noble and learned Lord the Lord Advocate pointed out to those of us who were prepared to do their arithmetic. So far as I can see, the amendment results in a saving in public expenditure of about £45 million in the first year or two.
But I am not concerned with the public expenditure consequences. It is slightly artificial to continue discussing the early release provisions unless the Government are prepared to give us some indication of what they intend to do following the Committee's decision to carry Amendment No. 136A. I am sure I should be enlightened if the noble and learned Lord would tell us.
Lord Thomas of Gresford: The noble and learned Lord the Lord Advocate has still not addressed to my satisfaction the risk assessment point. It seems to me that the early release days are to be awarded regardless of any risk assessment. A person who earns the early release will obtain it and come out whatever the state of belief of those who are in control of him about his suitability to be released into the community.
The problem that I find so difficult about early release is that there is a total lack of procedural fairness about it. It comes down to what the man on the landing thinks; whether he personally takes the decision or whether he simply reports to a Crown servant or whoever as to the view that he has. When we discussed the English proposals we were told that it would not be simply the warder on the landing but the person in charge of the
workshop, the person in charge of the programme, the person in charge of kitchens or whatever--this, that or the other aspect of prison life. They would all be reporting to some central body about a particular individual. He, so far as I can tell, has no right to see those reports. He is just told what his assessment is at the end of two months. He has no right to challenge and he cannot know what to address. Presumably, he will not have any knowledge of what is said about him unless he goes on appeal. The temptation for those 40 inmates a week to go on appeal in order to see why the decision is taken in relation to those early release days, will be considerable.It is the total lack of fairness about the provisions that I find objectionable. I fully support my noble friend Lord Mar and Kellie in his opposition to this entire clause.
Lord Mackay of Drumadoon: Perhaps I can deal first with the points raised by the noble and learned Lord, Lord McCluskey, who referred to the fact that this would lead to a saving in public expenditure of £45 million. I am tempted to suggest that that may offer some insight as to why the amendment received support from some quarters of the Chamber, though I hasten to assure the noble and learned Lord, Lord McCluskey, that I do not regard that as being one of his motives in bringing forward the amendment. I suspect others may have supported it for that reason and no doubt we will find out in the fullness of time.
The noble Lord, Lord Thomas, said that I had not yet addressed the issue of risk assessment. As the noble Lord, Lord Sewel, indicated not long ago, this is a matter which arises fairly and squarely in Amendment No. 147 and I believe it would be more sensible to deal with it at that time.
In relation to the issue of procedural fairness, I do not claim a huge expertise in judicial review. But if there is one thing that judicial review is designed to look at, it is the issue of procedural fairness. All steps of the procedure will be subject to judicial review in the courts. If there is a lack of procedural fairness, the courts will not be slow to tell the Government that that is so.
The precise detail of how prisoners are given copies of relevant documents; how they make submissions on the relevant documents before decisions are taken; and how the various stages of the appeal procedure are conducted are matters which will be set out in the rules. If, for any reason, the basic principles of procedural fairness are not adhered to, there can be little doubt that judicial review will take place on some basis or another.
I suggest therefore that while it may be difficult prior to seeing the prison rules to be satisfied that these concerns will be addressed, Members of the Committee should accept that the Government will have no alternative but to address them. The Government have every wish to address them because they appreciate as well as anybody that if the procedure for dealing with the assessments is not conducted according to the requirements of procedural fairness, that would lead to unrest and consequences in the court may arise.
The noble Earl, Lord Mar and Kellie, seeks to oppose the clause in its entirety. Members of the Committee will appreciate that it is a clause which is central to the Bill's scheme of early release. Earlier, I had occasion to go through the detail of the matter at a length which caused irritation to some Members of the Committee. I will therefore not trespass again in that regard.
I do not accept that the criteria will be subjective. I do not accept that staff cannot operate the procedure in a fair manner. I repeat that whoever is taking decisions in relation to the early release of prisoners has, to some extent, to rely on those who see them on a daily basis. However, I stress that the decisions will be taken much higher up the management ladder. I understand the anxieties of the noble Earl, Lord Mar and Kellie. I hope, however, that he will not persist in his opposition to Clause 31 standing part of the Bill.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, I am still puzzled about the question of judicial review. One can look at the procedures under judicial review if the body is subject to judicial review. I am not being in any way critical of the Government, because we are all puzzled by judicial review, but is the Lord Advocate saying that these procedures will automatically fall under the umbrella of judicial review and that the procedures can then be looked at in a quasi-judicial context; or will it be left to the courts to decide whether each individual case falls within the ambit of judicial review?
Lord Mackay of Drumadoon: I apologise for not making the matter clearer earlier. The Government's position is that the statutory procedure set out in the Bill for the assessment of days will in its entirety be subject to judicial review in the courts. The case which establishes that as the law, in so far as it establishes that the prison authorities are subject to judicial review, is West v. The Secretary of State for Scotland. I may be wrong about that but I am absolutely certain that I am right about the fact that judicial review will apply. I have not heard any contradictor to that assertion, albeit that I may not have explained earlier the full extent to which that procedure will cover the various stages of the assessment, both the initial assessment and the appeal procedure.
Clause 33 [Amendments to 1989 Act]:
Lord McCluskey had given notice of his intention to move Amendment No. 145:
The noble and learned Lord said: Amendments Nos. 145 and 146 go together. They have already been spoken to. I have nothing to add. I apologise to the Committee for the fact that I have to depart now because I have to return to Edinburgh tonight, having judicial business to attend to tomorrow morning. I hope that someone may look carefully at Clause 41 and seek from the Government some explanation as to why the clause
[Amendment No. 145 not moved.]
[Amendment No. 146 not moved.]
Clause 38 [Mentally disordered offenders]:
On Question, Whether Clause 38 shall stand part of the Bill?
Page 38, leave out lines 9 to 13.
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