Final provisions
Section 7 – ancillary provision
54.This section empowers the Scottish Ministers, by regulations, to make various types of ancillary provision for the purposes of, in connection with, or to give full effect to the Act.
55.Regulations under this section may modify any enactment (including the Act itself). The word “enactment” is defined in schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010 and includes Acts of the Scottish or UK Parliaments as well as secondary legislation.
56.If regulations under this section textually amend an Act then they are subject to the affirmative procedure, but otherwise they are subject to the negative procedure(8).
Section 8 – commencement
57.This section sets out when the provisions of the Act will come into force (i.e. take effect).
58.The final sections (that is, sections 7 to 9) come into force automatically on the day after the Act receives Royal Assent. The other provisions of the Act (that is, the substantive provisions) will be commenced in accordance with regulations made by the Scottish Ministers under this section. Such regulations may include transitional, transitory or saving provision related to commencement and may make different provision for different purposes. However, the Act already includes some transitional provision in relation to the initial release of prisoners following commencement – see paragraph 3 of the schedule.
59.Regulations under this section will be laid before the Scottish Parliament but will not be subject to any parliamentary procedure (see section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010).
Section 9 – short title
60.This section provides for the Act to be known as the Prisoners (Early Release) (Scotland) Act 2025.
Schedule – consequential, transitional and transitory provision
Part 1 – consequential provision
Paragraph 1: release of short-term prisoners on licence tied to timing of automatic early release
61.Section 3AA of the 1993 Act deals with the power to release prisoners on licence (known informally as “home detention curfew”). It has recently been amended by section 9 of the Bail and Release from Custody (Scotland) Act 2023 (to remove long-term prisoners from the scope of the section) but that change is not yet in force as at the point of production of these Notes.
62.Prior to the changes made by this Act, the rule in relation to short-term prisoners was that such a prisoner serving more than a 3 month sentence of imprisonment could be released on licence at any point in the period which began 180 days before they reached the halfway point of their sentence and which ended 14 days before that point was reached. In practice, this correlated with the then-current automatic early-release point for short-term prisoners, and meant in essence that they may be released up to 180 days before automatic early release would operate (provided it was not in the fortnight immediately prior to it).
63.The provision relating to short-term prisoners is altered by this paragraph of the Act so as to tie in to the particular prisoner’s release date, rather than being a set proportion. This means that the provision will continue to function properly despite the fact that different release points have now been set for different short-term prisoners (i.e. 50% for some and 40% for others). It will therefore continue to be the case that a short-term prisoner will be able to be released on licence up to 180 days before automatic early release would operate (provided it is not in the fortnight immediately prior to it). Without this change, a short-term prisoner’s eligibility for home detention curfew might only have kicked in a very small amount of time before, or even after, they would have been given automatic early release after serving 40% of their sentence, which might have led to a reduction in its use or availability for use.
Paragraph 2: power to modify timing of automatic early release of certain detained children
64.Paragraph 2 repeals the existing power in section 7(1A)(b) of the 1993 Act which allowed a reference to a proportion of a detained child’s sentence to be construed as a different proportion. This power is redundant in light of the new power at section 3 of the Act.
Part 2 – transitional and transitory provision
Paragraph 3: initial release of individuals when automatic early release changes
65.This paragraph makes provision about how the release of individuals is to take place immediately following the commencement of the new rules in sections 1 and 2, providing a mechanism for moving from the old regime to the new regime.
66.Sub-paragraph (1) provides that existing prisoners whose release dates are changed by the Act and who are listed in the first column of the table in sub-paragraph (2) are to be released on the date provided for in that table instead of being released on the new release date which would apply to them under section 1 of the Act. This will avoid all prisoners who have served 40% or more of their sentence at the point of commencement, but less than 50%, all needing to be released on the same day upon commencement occurring.
67.Sub-paragraphs (1) and (2) together provide as follows—
A prisoner whose new release date falls on or before the day that is 30 days before the commencement date is, as default, to be released in the period running from Tuesday to Thursday which starts with the first Tuesday after the commencement date.
A prisoner whose new release date falls in the period starting 29 days before the commencement date and ending 1 day before the commencement date is, as default, to be released in the period running from Tuesday to Thursday which starts with the third Tuesday after the commencement date.
A prisoner whose new release date falls in the period starting on the commencement date and ending the day before the final release period is, as default, to be released in the period running from Tuesday to Thursday which starts with the fifth Tuesday after the commencement date.
68.The effect of this can be demonstrated as follows, based on an example which assumes a hypothetical commencement date of Tuesday 18 February 2025—
Those prisoners who reached the 40% mark on or before 19 January and who fall within new section 1(1)(b) of the 1993 Act would, as default, be released in the first tranche, which would take place from Tuesday 25 to Thursday 27 February.
Those prisoners who reached the 40% mark in the period from 20 January to 17 February (inclusive) and who fall within new section 1(1)(b) of the 1993 Act would, as default, be released in the second tranche, which would take place from Tuesday 11 to Thursday 13 March.
Those prisoners who reached the 40% mark in the period from 18 February to 24 March and who fall within new section 1(1)(b) of the 1993 Act would, as default, be released in the third tranche, which would take place from Tuesday 25 to Thursday 27 March.
69.The references above to prisoners being released “as default” in the release period provided for in the table is because sub-paragraph (3) also provides that if release under the provisions set out in the table would lead to the prisoner being released later than their original 50% release date, they are instead to be released on their original release date. This will be relevant to those who are already very close to the 50% point in their sentence at the time of commencement. For example, if a prisoner was at the 49% point in their sentence at the time of commencement and reached their original release date 3 days after commencement, they would be released then instead of being delayed until the first tranche of releases.
70.Those prisoners who reach the 40% mark on or after the first day of the release period for the final tranche and who fall within new section 1(1)(b) of the 1993 Act will be released under the new rules without any transitional provision applying to them. In the example above where the final tranche is released in the period from Tuesday 25 to Thursday 27 March, there may also be people being released on any of those days simply because that is their new release date.
71.These transitional rules in sub-paragraphs (1) to (3) apply to “prisoners”. This is defined in sub-paragraph (5) to include young offenders detained in a young offenders institution. This covers both those who are placed in a young offenders institution in relation to an offence and those who are initially detained in secure accommodation but who are then moved to a young offenders institution upon reaching the age of 18.
72.Sub-paragraph (4) makes provision in relation to children who are being detained following criminal proceedings. It relates only to those who continue to be children at the point of commencement. If their release date is changed by the Act and their new release date would therefore have arisen prior to the commencement of the change relating to them, they are to be released on the date on which the change (i.e. section 2 of the Act) is commenced. This recognises that their new release date has already passed and therefore ensures that they are released immediately while providing for their detention up to that point to continue to have been lawful detention. Due to the significantly smaller numbers involved, there is no release in tranches in the same way as is applied to prisoners.
73.Sub-paragraph (5) sets out the definitions which apply for the purpose of these transitional provisions.
Paragraph 4: short-term prisoners on licence when automatic early release changes
74.Paragraph 4 makes transitional provision for short-term prisoners who are on licence at the point when the change to automatic early release made by section 1 of the Act takes effect. This covers both those on home detention curfew under section 3AA of the 1993 Act and those who have received compassionate release on licence under section 3 of the 1993 Act.
75.The duration of the licence granted to such short-term prisoners is provided for in section 11 of the 1993 Act and (other than in the case of short-term terrorism prisoners) is tied to the point when, had the individual not been released on licence, they would have been given automatic early release under section 1(1) of the 1993 Act. Those who are on licence at the point when section 1 of the 1993 Act is altered as a result of the change made by this Act will therefore automatically have their licence periods recalculated: where they would have benefitted from an earlier release had they remained in prison, their licences will similarly end early.
76.However, paragraph 4 makes provision to avoid this leading to any retrospective change to when the licence ends. It provides for the person’s licence to end (unless revoked earlier) on the later of the date on which section 1 of the Act comes into force and the date on which the licence would otherwise have ended.
77.For example, prior to the Act coming into force, an individual might be on licence with their licence due to end in February 2025 (on what would have been their automatic early release date, upon reaching 50% of their sentence). If that person’s sentence is now recalculated to find the 40% point, that might occur in December 2024. If the Act comes into force in January 2025, that person’s licence will be recalculated and brought to an end in January (i.e. on the date the changes to automatic early release take effect). What this paragraph of the schedule prevents is the individual’s licence suddenly being viewed after the fact as having ended in December, when they reached the 40% mark, despite having been in force throughout December prior to the Act’s changes coming into force.
Paragraph 5: release of short-term prisoners on licence
78.Paragraphs 61 to 63 of these Notes discuss the consequential amendment that paragraph 1 of the schedule makes to section 3AA of the 1993 Act to allow home detention curfew to continue to operate properly despite the changes being made to the automatic early release point for short-term prisoners. However, as noted above, a recent change to section 3AA is due to take effect when section 9 of the Bail and Release from Custody (Scotland) Act 2023 is commenced and removes long-term prisoners from the scope of section 3AA.
79.Until that takes effect, long-term prisoners will continue to need to be referenced within section 3AA. This paragraph of the Act therefore makes transitional provision which sets out how the consequential amendment is to be interpreted until such time as the removal of long-term prisoners from this section takes effect. It provides for the change made by paragraph 1 to take effect immediately but allows the existing reference to long-term prisoners to continue in place unaltered as a stopgap measure.
