Part 7: Prisons and young offenders institutions
281.Paragraphs 25 and 26 make provision in similar terms to that found in paragraphs 19 and 20 of schedule 4 of the Coronavirus (Scotland) Act 2020.
282.Associated provision is made by section 57.
Power to release early
283.Under paragraph 25, the Scottish Ministers are given the power to make regulations to release people from prisons and young offenders institutions early. For these purposes, a “
284.Regulations may only be made if the Ministers are satisfied that making them is a necessary and proportionate response to the effects, or anticipated effects, of coronavirus on a prison or on prisons generally. The regulations must be for the purpose of protecting the security and order of the prison concerned or protecting the health, safety and welfare of those accommodated or working in the prison.
285.In addition, there are restrictions upon who can benefit from the regulations. A person may not be released under the regulations more than 180 days earlier than the person would otherwise be due for release. A person is also not to be released under the regulations if the governor of the prison concerned considers the person to pose an immediate risk of harm to another identified person. Further, a person may not be released if the person falls within one of the categories specified in sub-paragraph (5). Those ineligible include:
people who are not serving determinate sentences (for example, a person sentenced to life imprisonment, or where no limit of time has been specified),
people sentenced to an extended sentence for sexual, violent or terrorism offences,
people who have been made subject to a supervised release order in order to protect the public from serious harm upon the person’s release or who are subject to notification requirements under the Sexual Offences Act 2003,
people sentenced for domestic abuse offences, and
people who are in prison for reasons other than having been sentenced, such as those who are awaiting trial or who are being detained ahead of potentially being deported.
286.Regulations under this paragraph may make different provision for different purposes, meaning that the rules can, for example, differentiate between categories of prisoner, types of prison or parts of a prison.
Parliamentary scrutiny and expiry of regulations made under paragraph 25
287.Paragraph 26 makes provision about the parliamentary procedure which applies to the making of regulations under paragraph 25 and about the automatic expiry of any regulations made under that power.
288.Specifically, regulations are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010) unless they are made under the bespoke procedure which is provided for by sub-paragraph (3). That procedure is available only where the regulations include a declaration that in the Scottish Ministers’ opinion the regulations need to be made so urgently that parliamentary approval of them in draft cannot be waited for.
289.Where that condition is met, the regulations can be made and come into force immediately under the made-affirmative procedure. They must be laid before the Scottish Parliament as soon as practicable after being made, and will cease to have effect if the Parliament does not approve them within 28 days (excluding days during which the Parliament could not approve the regulations because it is dissolved or in recess for a period of more than 4 days). In addition, the Scottish Ministers must explain their reasons for thinking that the situation is so urgent that the regulations need to be made in accordance with the made-affirmative procedure provided for by sub-paragraph (3).
