New position
33.Section 3(2) of the Act provides the Scottish Ministers with a more flexible power to make regulations which adjust when the automatic early release of prisoners or of those detained as children takes place. This is achieved by inserting a new section 27A into the 1993 Act.
34.New section 27A(1)(a) allows regulations to modify section 1 or 5 so as to provide for a different release point to apply for the purposes of the automatic early release of prisoners. The power applies to both short-term and long-term prisoners, but it would not apply to prisoners released under section 1AA of the 1993 Act (i.e. those who are released on licence after imprisonment for 6 months or more for a sexual offence). There is no restriction upon how a prisoner’s automatic early release point is expressed, so the power could, for example, be used to amend existing rules which are framed by reference to periods which a prisoner has left to serve, or rules which are framed by reference to the proportion of a prisoner’s sentence which has already elapsed. New rules could also be expressed in either of those ways. The power would be exercised by making a change on the face of the 1993 Act, so that it was immediately apparent to anyone consulting the relevant section of the 1993 Act what the release point is.
35.New subsections (1)(b) and (c) of new section 27A similarly allow regulations to be made modifying the release point in respect of those detained as children. This means that there is the ability to ensure that they are not put at a disadvantage compared to adults in the event of a future reduction in the amount of a sentence which needs to be served in prison (particularly if that reduction was not phrased in terms of a proportion of sentence and the existing power in section 7(1A)(b) of the 1993 Act did not therefore cover it).
36.New section 27A(2) makes further provision about how the new powers will operate. Paragraph (a) of new section 27A(2) provides that the regulations can make provision applying to those who began serving their sentence or whose period of detention began before the regulations come into force. This means that those in prison or detention at the point of any rule change could be affected by it (in the same way as is the case with the changes made by sections 1 and 2 of the Act) rather than the new rule only applying to those who are sentenced from the date of the rule change onwards. It will also allow transitional provision akin to paragraph 4 of the schedule of the Act to be made for those who are on licence at the point when the rules change, so that provision can be made about the date on which their licence ends.
37.Paragraph (b) of new section 27A(2) enables the usual ability for regulations to include incidental, supplementary, consequential, transitional, transitory or saving provision. Section 27A(4) clarifies that provision of this nature can amend new section 27B.
38.Paragraph (c) of new section 27A(2) then provides that the regulations may make different provision for different purposes. This would allow different provision to be made for different categories of prisoner. For example, this would allow different release points to be imposed based on the offences committed by different prisoners, or whether they have an extended sentence, or what date their sentence was imposed, and so on. It will therefore continue to allow the kind of categorisation that is already provided for at inserted section 1(1) of the 1993 Act (as adjusted by section 1 of this Act) but it will allow these categories to be changed or expanded.
39.However, by dint of new section 27A(3), the ability to make different provision for different purposes does not apply to the use of the power in respect of long-term prisoners or those detained as children for four or more years. The only ability of this nature which is provided for in relation to them is the ability to make different provision based on when they were imprisoned or detained. It would therefore allow a change to be made which was not retrospective and which affected only future prisoners/detained children, but it would not allow different rules to be applied based on other distinguishing features.
40.Paragraph (d) of new section 27A(2) provides that the regulations are subject to parliamentary approval via the affirmative procedure.
41.New section 27A(5) (as read with the interpretation material in new section 27A(7)) sets out a list of those who must be consulted before Ministers can make regulations using this power. The consultees include certain specified consultees as well as, at paragraph (i), a requirement to consult such other persons as Ministers consider appropriate. The consultation required by this subsection could be undertaken as part of a public consultation or could take the form of more targeted engagement with the groups and bodies concerned.
42.New section 27A(6) requires the Scottish Ministers, when draft regulations using this power are laid before the Parliament for approval, to seek to make a statement to the Scottish Parliament. It will then be for the Parliamentary Bureau to determine the time that is allocated for such a statement. Any statement that is subsequently made must cover Ministers’ reasons for proposing the regulations, information about the consultation they have carried out, and what information will be available to victims both about the proposed change and specifically about the release of prisoners under the law as adjusted by the regulations.
43.Subsection (3) of this section of the Act then adjusts the existing power at section 27(2) of the 1993 Act (discussed at paragraph 30 of these Notes) so as to exclude from it anything that will now be able to be modified under new section 27A(1) instead. This avoids the two powers overlapping and ensures that any future changes which can be made under section 27A(1) are dealt with under that provision, given the greater accessibility of any changes made that way.
44.Subsection (4) then simply updates the existing italic heading in the 1993 Act to accommodate the insertion of the new powers.
