Prisoners (Early Release) (Scotland) Bill: equality impact assessment

Executive summary

The prison population as of November 2024 is at historically high levels. As a result of the rising and the increasingly complex prison population, substantial pressure is being placed on the prison estate. This has resulted in increased risks to the safety and wellbeing of prisoners and Scottish Prison Service (SPS) staff, and a reduction in the ability of SPS to provide and facilitate the purposeful activities that support rehabilitation.

The Scottish Government is taking a range of measures to reduce the prison population to a sustainable level, including increasing the prison estate's capacity through implementation of the Children (Care and Justice) (Scotland) Act 2024; continuing to optimise the use of Home Detention Curfew; and increasing investment in community justice by £14 million in the 2023-2024 financial year to a total of £148 million.

One way of addressing the prison population is considering the length of time those sentenced spend in prison custody. The Prisoners (Early Release) (Scotland) Bill (the Bill) will change the point of automatic early release from prison and secure accommodation for most people serving short-term sentences. Short-term sentences are sentences of less than four years. The change to the automatic release point will reduce the length of time most people spend in prison or secure accommodation, by bringing forward the point of release to following two-fifths (40%) of their sentence being served, compared to the current release point for short-term prisoners at the half-way (50%) point in their sentence.

This change will not apply to all prisoners. Those serving sentence for domestic abuse or sexual offences, in part or in whole, will continue to be released once they have served half (50%) of their sentence.

The change to the release point will apply to those serving a short-term sentence when the legislation comes into force and those sentenced to short-term sentences in the future. This means the change to the release point will apply to people currently serving between 40-50% of their sentence when the Bill comes into effect. Based on prison population projections^[1], it is estimated that around 5% of the sentenced prison population will be immediately eligible for release if the measures were to come into effect in January 2025. This accounts for approximately 260-390 people. Over time it is anticipated that this initial reduction would be sustained, meaning that the sentenced prison population would be approximately 260-390 lower than it otherwise would have been, assuming that the make-up of the prison population remains broadly similar in terms of sentence type and duration.

The Bill also provides for a subordinate legislation-making power to amend the point at which the Scottish Ministers must release short-term and long-term prisoners to either another proportion of the sentence or a particular period of time. In relation to short-term prisoners only, the power would also allow different provision to be made for different purposes. In relation to long-term prisoners, the power only permits Scottish Ministers to amend the point of release though different provision can be made based on when such individuals were imprisoned. The Bill also provides for ancillary and commencement powers.

This Equality Impact Assessment (EQIA) has been developed to accompany the Prisoners (Early Release) (Scotland) Bill. The scope of this impact assessment is limited to assessing the potential impact across protected characteristics of bringing forward the point of release for most short-term prisoners from the half-way point (50%) to two-fifths (40%), in line with the scope of the policy proposal. This equates to a maximum of approximately 21 weeks difference between the current and proposed release point. This is not an assessment of the impact of imprisonment or release more generally. Many of the impacts on prisoners, families and victims relate to release from custody generally and are not specifically related to moving the release point to the two-fifths point (40%). In addition, the scope of this EQIA does not cover the potential impact across protected characteristics of the subordinate legislation-making powers. Should the powers be used at a later stage to further change the point of release for short-term prisoners, or to make a change to the release point for long-term prisoners, then a new EQIA based on the relevant change would be required to determine the impacts across protected characteristics.

The change to the release point for most short-term prisoners will have a direct or indirect impact on many people who come into contact with the criminal justice system, including those serving short-term custodial sentences, their families, victims of crime, the wider communities to which people will be released and Scottish Prison Service (SPS) staff and those working within prisons. This EQIA draws upon multiple evidence sources gathered from research, data publications and stakeholders to inform the potential impacts the Bill may have on people who possess none, one or multiple protected characteristics.

Bringing forward the release point for most people serving short-term sentences is targeted at the general short-term prison population, rather any person or group of people with a specific protected characteristic. Overall, given that the maximum period an individual could be released early is approximately 21 weeks, the impact of this change is anticipated to be limited. However, given the general make-up of the prison population and the way in which we know protected characteristics impact on experiences of crime, earlier release will impact some groups of people who share specific characteristics more than others. For example, because the majority of the prison population is male, more men than women will be directly impacted by an earlier release point.

For the families of those released at an earlier stage, there could be a positive, negative or neutral impact. In cases where the person being released is returning to a familial home, there could be a positive impact in terms of capacity for assistance with childcare and caring responsibilities within the household, work and earning potential, security, and emotional support. However, there is also the potential that the release of a prisoner does not have a positive impact on family members, for example where family members do not wish to have contact with the incarcerated family member.

A potential negative impact of earlier release on victims of crime was identified, and to mitigate the impact of earlier release on victims of sexual offences and domestic abuse, which are historically under-reported crimes experienced overwhelming by women with known reporting barriers, exclusions have been incorporated within the Bill to exclude those serving all, or part, of their sentence for these offences from the changes being made.

This Bill is expected to have a positive impact on SPS staff and wider staff who work in the prison environment, both immediately and in the future. The purpose of this Bill is to ease population pressures and to mitigate the range of negative impacts that population pressures are having on the daily operation of the prison estate. This will allow SPS staff to better support individuals in custody throughout their sentence and in the lead up to release, providing a better platform for individuals to reintegrate positively into the community on release, and reduce the chance of reoffending. Reducing prison population pressures is likely to increase the safety of the working environment for staff. Whilst the initial high volume of prisoners eligible for release (between 260-390 people) when the Bill comes into effect will have resource implications for SPS staff, this has been partially mitigated by providing for the release of prisoners in tranches, taking into account additional pressures on SPS staff, those working in prisons, wider community-based services and VSOs.

In developing the Prisoners (Early Release) (Scotland) Bill, the Scottish Government is mindful of the three needs of the Public Sector Equality Duty (PSED) as set out in section 149 of the Equality Act 2010, to eliminate unlawful discrimination, harassment and victimisation; to advance equality of opportunity between people who share a protected characteristic and those who do not; and to foster good relations between people who share a protected characteristic and those who do not. Where any negative impacts have been identified, we have sought to mitigate/eliminate these. We are also mindful that the equality duty is not just about negating or mitigating negative impacts, as we also have a positive duty to promote equality. We have sought to do this throughout the provisions of the Bill.

The EQIA is an ongoing process, and therefore will continually be amended as new evidence comes to light. We will continue to engage with our stakeholders and will regularly review the EQIA record and results upon availability of any additional qualitative or quantitative data that evidences the impact of the Bill.

An Island Communities Impact Assessment, Fairer Scotland Duty Assessment and a Child Right and Wellbeing Impact Assessment have also been developed.