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The answer to the second point is no, I am not sure that we have considered that suggestion from the Lord President.

However, the draft order before us comes at the request of the Lord President, and that is partly for the reasons that you mention. We are keen to tackle the backlog, and that is perhaps why we have gone beyond the previous limit of 35, which was increased from 34 in 2016. We do not want the business to deal with the backlog to slow down, and that is why we want to appoint a further judge.

We have considered other things that may help. Sheriffs are sometimes elevated, but that would put more pressure on the sheriff courts. We are trying to balance that. The measure increases capacity for the Court of Session at a time when it would otherwise reduce because of the appointment of Lady Poole to the inquiry.

I am pretty sure that the Lord President said to me in his letter that the measure was to do with the backlog, too. That is being taken into account.

This landmark bill honours the commitment that the Scottish Government made to bring forward legislation to pardon miners of certain offences relating to the miners strike of 1984 to 1985. It follows up a recommendation made by an independent review group that a pardon should be granted to miners who were convicted of certain offences during the strike, subject to qualifying criteria. The pardon was intended to recognise the disproportionate impact felt by those miners as a result of taking part in the strike, to restore dignity to them, and to help the mining communities heal old wounds.

To establish what the qualifying criteria should be, the Scottish Government undertook a public consultation last year. The provisions in the bill reflect both the outcome of that consultation and careful consideration of the available data. It is important to emphasise at this point that there is very little surviving evidence from police and court records from the time of the strike, which is why I do not propose to put in place an application scheme for the pardon. I wish to make the qualifying criteria for the pardon as simple as possible so that people are able to assess for themselves whether the criteria are met, without having to find documentary evidence.

The bill proposes a collective pardon to miners that will apply automatically to those who meet the qualifying criteria, which are that the miner’s conviction relates to an offence committed while on a picket line, demonstration or similar gathering in support of the strike, or while travelling to or from such a gathering. The qualifying offences are breach of the peace, breach of bail conditions and those under section 41(1)(a) of the Police (Scotland) Act 1967, commonly known as obstruction.

The bill is about reconciliation and dealing with the past in a sensitive way. The conditions of the pardon recognise that miners and police officers found themselves in extremely challenging situations where relationships came under unprecedented strain. Miners who took part in industrial action did so to protect their jobs, their way of life, and their communities. Police officers were only exercising their duty to uphold the law, in circumstances and on a scale that they had never encountered before.

The pardon will apply both to living people and posthumously, given the passage of time since the strike. The pardon does not quash a conviction; neither does it create any rights or entitlements. I am clear that the bill should not cast any doubt on decisions made by the judiciary at the time or seek to place blame on any individual or group of individuals. Once again, I am happy to take the committee’s questions.

It would be better if Teresa Medhurst answered that, as she has a much better grasp of exactly where we are on that. The member raises an interesting point and she knows the challenges that we have had on the issue. Teresa will have the up-to-date position.

My response to the question about a review was that we have not planned that, but there is a kind of on-going review. Perhaps the best thing to do would be to commit to providing an update to the committee in whatever timescale you think would be appropriate. As has been said, we are only four weeks into the system. After a three-month period, we will have a better idea of how things are panning out, so that might be a good point at which to provide an update to the committee. That might include elements of a review but, in any event, it would be good to update the committee on progress.

I do not. Teresa Medhurst might know the answer.

I come back to Mr Findlay’s previous point. He asked whether there had been a reduction in mail as a consequence of the measure. There is another consequence in which he might be interested. As I have mentioned before to the Parliament, sometimes, when we try to deal with drugs in prison, if we deal with one aspect, it causes an increase elsewhere. That is what has happened in this case: there has been an increase in the number of perimeter fence attempts to provide drugs in prison.

It is clear that there is a tidal wave—[Inaudible.]—and we do what we can, not least given what Teresa Medhurst said about the changing nature of drugs. Mr Findlay is right to say that there is a consequence to what we do.

I do not know who the academics consulted. They have a legitimate point and we are happy to take into account their concerns for the rights of prisoners and others. I point out that one of the initiatives came from Her Majesty’s chief inspector of prisons, who is very concerned, and obliged to be concerned, about prisoners’ rights. We believe that the measure is a proportionate response to safeguard those rights.

Perhaps Teresa Medhurst could answer the question about who the academics consulted before they made their submission.

I will try to respond, but Teresa Medhurst will have more of the detail.

The measure applies to general correspondence, but not all correspondence is opened, and there are different practices in different prisons. The approach might be targeted or it might be random, but not all correspondence is opened. I mentioned the exemptions, such as legally privileged information. I am aware that legally or medically privileged information can present a route to people trying to circumvent the system, so measures are taken to try to avoid that. Interestingly, we are aware of correspondence that purports to relate to the child abuse inquiry going to prisoners but which is nothing of the kind—it is a means to try to get drugs into the prison estate.

It is a difficult issue to deal with. I am sure that Teresa will not want to be too explicit about the ways in which we try to ensure that drugs do not get into the estate. However, not all correspondence is opened. We will look at personal correspondence, including correspondence from children, which is perhaps one of the most sensitive areas in relation to the issue. We have taken measures that are proportionate. We will ensure that prisoners get the original correspondence, where that is possible. Not all correspondence is opened. The approach is targeted or random, and I believe that it is proportionate.

Teresa might want to come in on that.

Again, Teresa Medhurst is best placed to answer that. There has been increased detection in that respect, so the system seems to be working well. Perhaps Teresa can give more information.

I will come to both of those points. It is important that the other questions that you asked are answered, but it may be not a good idea to—[Inaudible.]—publicly. Perhaps I could pass information about some of the issues that have been raised—for example, the number of items of mail that have been intercepted—on to the committee outwith the public sphere. As Teresa Medhurst rightly pointed out, there is a battle of wits between the Prison Service and those who are trying to safeguard prisoners and stop drugs getting into prisons, and those who are trying to find new ways of doing that.

You asked about police follow-up. I mentioned that an MOU between the Prison Service and the police is being discussed to ensure that all those items are uplifted. It is my understanding that there is no recourse in relation to prisoners who, at that point, would not have received any infused materials. That is my understanding, but Teresa Medhurst will know about that better than I do. The MOU will result in all those items being uplifted by the police. How the police will prosecute that is a matter for them. Again, Teresa Medhurst may have more information, because she will be involved in the drawing up of that MOU.

That issue has been raised before; it is valid and is the subject of the discussion on an MOU between the Prison Service and the police. You will know that the Prison Service has no right or powers to confiscate those materials; it has to come down to the police. That is why the MOU, which will result in the uplifting of materials that have been infused with drugs, is being put in place.

On the previous point, which was really important, Mr Greene mentioned that family members might be sending materials. However, serious organised crime might still be behind that, and the family member could be under duress. It is a bit like human trafficking, where we do not want to punish the victims. It is a complicated matter. Mr Greene raised an interesting point about getting a better handle on what the police are able to do once they discern criminal behaviour, and we will follow that up. I am happy to write to the committee on both the matters that he raised.

Thank you, convener. I wish the committee a happy new year.

The purpose of the Scottish statutory instrument is to add psychoactive substances, as defined in section 2 of the Psychoactive Substances Act 2016, to the list of prohibited articles in the Prisons and Young Offenders Institutions (Scotland) Rules 2011, and to provide prison governors with powers that will enable them to mitigate the risk of illicit substances that are being introduced through general correspondence that is sent to prisoners via the mail system across the prison estate.

Prohibited articles are items that prisoners are not allowed to possess in prison, and currently include controlled drugs, alcohol, offensive weapons and other items. The amendments also provide prison officers and employees with powers that will allow them to photocopy a prisoner’s general correspondence, provide the prisoner with a photocopy of that correspondence and retain the original correspondence for return to the prisoner on their release. Prison staff will also be provided with the power to test general correspondence for the purposes of investigating whether it contains a prohibited article.

The use of psychoactive substances in prisons across the United Kingdom is escalating. The Scottish Prison Service has been working tirelessly to adapt security measures to prevent, detect and deter the introduction of contraband to the estate. However, the use of such substances is a complex and multifaceted problem in our society, and there is no simple answer to the issue of its impact in the criminal justice system.

During 2021, five confirmed deaths in SPS custody have been linked to suspected drug overdose involving the psychoactive substance etizolam, an illicit class C drug that can be infused into paper, card and clothing. Intelligence from the SPS also indicated that there has been an escalation in the number of emergency drug-related escorts to hospital and incidents of prisoners being suspected to be under the influence of drugs. Members will be aware of the emerging debates on the issue, and that Her Majesty’s chief inspector of prisons has been calling for the introduction of the measure that we are discussing today.

I am also aware that Families Outside, which works with children and families who are affected by imprisonment in Scotland, has written to the committee to note its support for the proposals. On the other hand, I know that concerns have been raised by stakeholders regarding prisoners’ human rights.

Many operational decisions in our prisons require a rather delicate balance to be struck to address a range of competing rights but, ultimately, the SPS must do all that it can to protect and ensure the health and safety of its staff and people in its care.

The instrument that is before you today is considered essential to mitigate the threat of significant harm to prisoners and staff that might be caused by further increases in the volumes of psychoactive substances entering the prison estate. The power that is set out in the instrument will help prison officers to prevent the entry of illicit substances into prisons and reduce the availability of those substances to prisoners. That can only help to reduce the risk that those substances present to prisons, prisoners and prison staff.

We considered options that would make the measure less intrusive, such as handing mail that had not tested positive for illicit substances to prisoners while they are in custody, but we are responding to an ever-developing threat, with new substances created that we cannot detect. Other options would not have been as effective in stopping that route into prisons for those substances. We acknowledge that there might be an impact on prisoners as a result of the instrument and its implementation, but they will continue to receive the substance of their correspondence, and they will be offered the choice of having the photocopied correspondence destroyed or retained, so that they can receive clean originals on release.

The amendments will also affect only general correspondence sent to prisoners, not confidential correspondence, such as privileged correspondence, court correspondence and medical correspondence, all of which are already protected under rule 56 of the prison rules.

The impact of not doing anything would be further disorder, illness and potential risk to life in prisons. I think that the measure strikes a fair balance between prisoners’ rights and the security and good order of prisons, which is also an essential factor in upholding prisoners’ rights in general.

The instrument has been in force since 13 December 2021, and I acknowledge the concerns that have been expressed by members of the Delegated Powers and Law Reform Committee regarding the breach of the 28-day laying period.

In normal circumstances, negative SSIs require to be laid before the Parliament for at least 28 days before they come into force. However, as outlined to the Presiding Officer by the head of the SPS, there was a concern that, in the run-up to the festive period, when the volume of mail increases, the SPS would in all probability have experienced a great escalation in the volume of psychoactive substances being sent into prisons via general correspondence with prisoners. The instrument was laid in November after careful consideration by the SPS and escalating concerns following the incidents at HMP Shotts and HMP Addiewell involving illicit substances. It was considered critical that the process be put in place quickly, and before mid-January 2022, which is when the SSI would have come into force if laid before Parliament in accordance with the 28-day rule.

The SPS will also commit to doing everything possible to mitigate any detrimental consequences that impact on the receipt of special mail such as photographs and occasion cards. Where possible, governors have been asked to give consideration in the first instance to testing all cards and photographs using the Rapiscan Itemiser drug-detection machine to allow the issuing of the original copies.

It is recognised that the maintenance of personal connections and family contact are essential to the lives of people in SPS care and, of course, their families. The SPS has implemented a number of measures to support that, including access to physical and virtual visits, access to communal and in-cell telephones and access to the Email a Prisoner and Prison Voicemail schemes.

The SSI has been in force for about four weeks, and there has been support for the change from the prison population to date. Early indications are that there has been a significant decrease in recorded drug-taking incidents and drug-related emergency escorts in the month of December 2021, compared with the previous two months. There were 248 drug-taking incidents in October, 305 in November and 131 in December; and there were 39 drug-related emergency escorts for the month of October, 37 in November and 15 in December. The SPS will continue to closely monitor the implementation of the policy across the estate.

The SPS and Police Scotland are reviewing the current memorandum of understanding concerning the management of illicit substances found in prisons, including the investigation, collection and destruction of such substances. A further meeting to discuss the MOU is planned for mid-January. In the meantime, Police Scotland has agreed to uplift all items suspected to be contaminated with illicit substances. I know that that was a concern that was raised by prison officers.

The instrument is, of course, only one of a range of measures and support that is required. There was a co-ordinated effort by the SPS, the national health service, Police Scotland and other criminal justice partners to limit the supply of drugs, including psychoactive substances inside and outside prisons, and the provision of support and treatment will be required. It is, therefore, crucial that our approach to tackling the problem concerns a balance between security and deterrence on the one hand, and also recovery and support on the other.

I am aware that there is a range of views among members on the issue, and I welcome this opportunity to answer members’ questions.