9 April 2020

SPARC have carefully read (and provided a plain language summary below of) the amendments to the Prison Rules in Scotland, being brought in in response to the coronavirus situation. Almost all of these rule changes relax requirements on Prison Governors to ensure that people in prison are provided with opportunities and resources to meet basic needs including nutritious food, clean socks and underwear, access to bathing or showers, family contact, reading material, and purposeful activity. The rules consistently water these down, so that Prison Governors are only required to do this where it is “safe and reasonably practicable” to do so, or are allowed to not fully meet these requirements for extended time periods. In a context whereby the provision of many of these items has become more challenging for prisons, the rules should exist precisely to ensure that they are still prioritised.

In justifying these changes, the policy note suggests that the amendments relate to services “which although important, are not critical to the security and health of SPS staff and prisoners”. Reviewing these rule changes, it is clear that in the context of coronavirus, care of people in prison is being reconceptualised purely in terms of protection from coronavirus and health is being reconceptualised only as bare physical survival.

People in prison are already at increased risk of poor mental health and death by suicide. In this context, family contact, diversionary activities, and time out of cell clearly are critical to health. We also have considerable concerns that these changes to the Prison Rules will profoundly impact upon mental and physical wellbeing: the reduction of guaranteed access to washing facilities from every second day to twice per a week is a clear example here, as are provisions which increase the length of time the Scottish Ministers can allow prisons to fail meet the minimum standards for clean clothing, without being in breach of the Prison Rules. The rule changes also allow for suspension of exercise, recreation, access to books and personal items in cells, healthy and varied food – all the things that those of us under ‘lockdown’ outside of prison are being told are essential to survive this pandemic.

These changes to the Prison Rules were introduced without warning or consultation. The Policy Note accompanying the legislation acknowledges that this is unusual, and that ordinarily key SPS employees, the POA Trade Union, and other stakeholders such as Police Scotland and NHS providers would have been consulted. We are disappointed that this has not taken place, and that people in prisons, their families, Third Sector colleagues and academics are not seen as key stakeholders for consultation of this nature. Taken together with the failure to publish the Equality and Human Rights Impact Assessment, we are deeply concerned about the lack of transparency surrounding these changes. This has clear implications for human rights and the ability for these to be protected and defended. Prison Rule 7 requires that the Rules are “readily available for inspection by officers and prisoners in each accommodation block and in the prison library”, yet the new provisions are silent as to how people in custody will be informed of the new Rules.

Relatedly, none of the rule changes seem to place additional requirements on prisons to provide information, connectivity and support for people in prison at this time. They don’t say anything about what the prisons can and should be doing for people in prison, just what they can (under certain circumstances) get away with not doing. One area where the rules could have been used to improve provisions for people in prison is around information. SPARC has recently raised concerns about a poverty of information for people in prison. NHS Scotland’s own information website emphasises that “During the pandemic, it’s important to have the right information. Getting news from unreliable sources can make you feel more upset and anxious, which is unhelpful when it comes to mental wellbeing.” Yet we know from people in prison that this is too often the case.

There have been no additions to the prison rules to bolster the rights of people in prison to reflect the current context. For example, an extension on the time frame for Scottish Ministers to investigate and respond to an appeal of a disciplinary procedure, is not accompanied by a corresponding extension for the prisoner to appeal the decision. Notably, there does not seem to have been any amendment to rule 82* which states that subject to certain specified provisions “every prisoner is required to work in prison”. Although this rule ceases to apply when work has been suspended by the Governor, there is no provision that allows for prisoners to refuse to work because of their own concerns about contracting the virus; and we know from media reports that prison staff are concerned about the lack of PPE in prison. While Prison Governors are being enabled to take decisions to safeguard people’s health, it is not obvious that people in prison are being supported to make their own decisions regarding the risk they are willing to tolerate.

Reducing the prison population, and the current crowded conditions of prisons in Scotland, is the most effective means of reducing risk in prison and offers the best chance of protecting lives. The proposed rule changes make it absolutely clear that authorities do not feel prisons currently offer a safe environment. One of the few changes to these rules that addresses the root cause of prisons being an unsafe environment in a pandemic is an extension of home leave from seven to fourteen nights. This offers an immediate mechanism for doing this, alongside expanded use of Home Detention Curfew use and provisions for early release introduced in the Coronavirus Scotland Act. It is worth noting though that fourteen nights is still a highly limited time period in the current context and, unlike other rule changes, the option of applying for a further extension to this time period does not seem to have been left open.

On balance, it is difficult to conclude that the changes to the Rules do anything other than dilute the legal obligations upon the SPS which, until yesterday, it had been agreed following a long consultation process were the minimum standards required to protect the rights of those in custody. We recognise that the current circumstances are exceptional, and huge pressures are being placed on individual institutions, and the criminal justice system as a whole. Yet many of the issues the COVID-19 pandemic has brought to the fore, such as overcrowding, pressure on prison budgets, difficulties in providing healthcare and staff shortages are not new. Seeking to resolve the pressures on the system caused by this crisis by reducing the rights of people in prison is not only unjust and misguided, but sets a dangerous precedent as to what Scotland as a country views as an acceptable solution to a crisis.

Plain English summary

[Please note: It is important for prisoners, their families and the public to have accessible information about how civil liberties of people in prison are being changed, and we offer this below. It does not constitute legal opinion as we are not lawyers.].

The accompanying policy note says that the amendments:

Are a ‘response to the exceptional pressures facing prisons during the current Coronavirus outbreak and the impact that staff shortages within prisons’ and ‘prison staff self-isolat[ing] to prevent the spread of the virus’
Overall their effect is to ‘generally provide Governors with flexibility in regards to compliance with timescales and the provision of those services’, that have been deemed ‘not critical to the security and health of SPS staff and prisoners’
The rule changes aim to ‘enable SPS staff to focus on key functions and to help protect the health and safety of staff and prisoners’
They are allowed ‘only [to] be in force for the duration of a Coronavirus outbreak’ [currently defined as lasting until 30 September 2020]

Section 1 states that these changes to the Prison Rules will come into force immediately.

Section 2(2)(b) details how long these changes will be in force. They have immediate effect and are in place until 30 September 2020.

The remainder of Section 2 makes changes to 22 Prison Rules, primarily dealing with supervision levels, prisoner welfare, purposeful activity, discipline procedures, complaints, and transfer and temporary release.

17, 19, 20, 21 Supervision levels: Prison Rule 17 states that all prisoners must be assigned a supervision level. The changes to Rules 19, 20 and 21 reduces the obligations of the SPS to deal with aspects of this process within particular time-scales and the form in which certain decisions are communicated. Instead of assigning a supervision level within 72 hours of a person coming into custody, this now must be done within a week. Reviews of supervision levels which were required to be undertaken at 6 or 12 month intervals are now to be done when “reasonably practicable”.

Where a supervision level is maintained or lowered on review, Governors are no longer obliged to provide the prisoner with the reasons for this in writing, although reasons should still be communicated as soon as is practicable. Similarly, changes to Rule 21 mean that where a prisoner is to be assigned a higher supervision level, or certain categories of prisoner (primarily those serving a life sentence) are to be assigned a supervision level other than low, Governors are no longer obliged to provide prisoners with advance written notice of this, although prisoners must still be informed. Governors were previously obliged to provide prisoners with documents or information which informed their decisions (subject to reasons not to set out in Rule 27), however these changes mean they are now only obligated to do so “as far is reasonably practicable”.

33 Prisoner Clothing: Rule 33 sets out the minimum expectations as to what clothing should be provided to people in prison – under the old rules, this includes clean socks and underwear for every day, and other clothing as is necessary to maintain hygiene. If exceptional circumstances occur whereby this is not possible, the Scottish Ministers can direct that this only applies subject to restrictions which they consider appropriate, for a period of up to one month. The changes to the Prison Rules extends the period during which Rule 33 can be followed subject to restrictions, allowing the Scottish Ministers to authorise continued exceptions to this minimum standard for further successive periods of a month at a time. In sum, changes to Rule 33 allow prisoners to go without daily clean underwear and clothing for multiple periods of up to a month at a time, with the consent of the Scottish Ministers. The Scottish Ministers must give their reasons for approving this, and the Governor must “take such steps as are reasonably practicable” to inform those who are affected.

34 Personal hygiene: the changes to Rule 34, reduces the frequency by which people in prison must be given access to facilities for bathing and showering from ‘on a daily basis’ (where adequate arrangements cannot be made for this to happen every day) to ‘at least twice a week’.

35A Prisoners’ food and drink: In summary, the change to this rule enables an extended period of time by which prisons are able to operate under restricted (i.e. lesser) requirements around the food that they are required to offer prisoners. Existing rule 35 outlines that prisons must provide people in prison with well-presented, wholesome and nutritious food, of sufficient quantity as required for maintaining health and nutrition. So far as practicable, this food must be appropriate for the prisoner’s age, health and religious, cultural, dietary or other requirements. The rule states that the prison must taste samples to check quality and condition. It also maintains that storage, preparation and serving areas must be regularly facilitated. There was already a provision within this rule that where exceptional circumstances or temporary lack of facilities last for more than 48 hours, the Scottish Government can restrict these requirements as appropriate, but not for more than one month. The change to the rule is that where it is deemed necessary due to coronavirus, on application of the governor prior to the expiry of the direction, the prison can “make any number of further directions continuing the effect for successive periods of no more than one month”. This change make it possible for prison Governors, so long as they apply to Scottish Ministers before the direction expires, to extend the direction for another month (and another…).

40A, 41A Recommendations by healthcare professionals / Accommodation in specified conditions: The changes to these rules enables prisoners to be confined to their cell / prevented from participating in specified activities (or for specified periods) for up to 14 days following recommendation from a healthcare professional. Senior SPS staff (on advice of healthcare professional) can extend this for further periods up to 14 days. This appears to be any healthcare professional and not, for example, someone with designated responsibilities or expertise in this area.

43A Prisoners’ welfare: This change means that Governors are no longer required to “ensure” reasonable assistance and facilities are given to maintain and develop relationships with family and friends, but rather they must provide this “so far as it is reasonably practicable to do so”.

52 Supplies of books, newspapers, etc to prisoners: Delivery of “ books, newspapers, writing materials and other means of occupation as the prisoner may wish to use” is now subject to the limitation that the Governor must consider such arrangements “safe and reasonably practicable”.

63A. Visits: Governor can limit, end, specify groups getting visits (must be retrospective as this was already being done). Governor ‘must regularly review any suspension of visits to assess whether it remains necessary and proportionate in response to effects of coronavirus.

81A. Work, Education, Programmes: Arrangements for work, education and counselling: Reduces requirements on prisons to assess and determine work/education/programs based on ‘prisoner wishes and needs’; under rule change this becomes discretionary. Suggests prisoners may be ordered to do certain activities (e.g. defined as essential for running prison). As with other rules, this must be reviewed regularly to ensure it is being used in a necessary and proportionate way.

84A Purposeful Activity: Governor may suspend some or all purposeful activity. The rules are unclear as to whether prisoners might be ordered to do prison jobs and subject to discipline for refusing. There is no provision in the rules for a risk assessment of how safe jobs are.

88 Recreation: Governor can suspend some or all recreational activity with same caveat of being required to review regularly to ensure necessary and proportionate.

111A & 116A Reporting breaches of discipline: Officers no longer need to immediately report breaches of discipline but can do so when ‘reasonably practicable’. A 3 day requirement to report a breach when prisoners move prisons has been increased to 14 days.

118A Disciplinary appeals: A prisoner found guilty of a breach of disciplinary procedure is allowed to appeal a decision within 14 days. This appeal is made to Scottish Ministers where the disciplinary hearing was chaired by the Governor in charge, or where it occurred in a contracted out prison. This rule change extends the time period for the Scottish Ministers to investigate and provide a response from 14 days to “as soon as reasonably practicable”. Notably, there does not seem to be any corresponding extension to the time period for prisoners to make an appeal, given the context.

120A Requests to speak to certain persons: People in prison can make a request to an officer to speak to a member of staff of the Scottish Administration, a member of the visiting committee or a sheriff / justice of the peace visiting the prison. Previously the officer had to act on this “without delay” but this has been changed to “as soon as reasonably practicable”.

122A Complaints to the residential first line manager: This extends time limits on responses from the residential first line manager from 48hrs (or where this cannot be met, 5 days for a written response) to “as soon as reasonably practicable”.

123A Referral of complaints to the Internal Complaints Committee: Changes the time limit within which a Governor must inform the prisoner regarding the ICC’s decision (and related information) from within 20 days of a complaint being referred to “as soon as reasonably practicable after that period.”

131A Healthcare assessment prior to transfer: This changes the requirement for the Governor to seek advice from a healthcare professional regarding a prisoner’s fitness to travel before transfer, so that this now only needs to happen “where appropriate to do so in the circumstances’.

136b Extension of certain periods of temporary release: This change extends the time period that someone can spend on home leave from up to 7 nights to 14 nights (excluding travel time).