My thoughts on Women's Prisons

 I have been promising this blog to a small number of my twitter followers for some time. I should apologise for the delay but it has taken some research on my part and, as I go on to narrate, also had a significant development in the last 48 hours.

But before I start properly I need to issue an acknowledgement to. Fishing about for some background knowledge I was put in touch with Dr Kath Murray of the estimable Murray Blackburn McKenzie Partnership who in turn alerted me to two earlier electronic publications of her own, https://t.co/JxJy6Wi4ce https://t.co/I1sLfrbLog They have considerably assisted me in what follows, up to just short of outright plagiarism and it is right I should acknowledge that. 

Let us now start at the very beginning. Women's prisons. 

In the early part of the 19th Century there lived a woman called Elizabeth Fry, who was a formidable campaigner for prison reform. By her efforts, as always assisted by others, she succeeded in promoting and then enacting the Gaols Act of 1823 which provided, among other reforms, that prisons should be sex segregated between men and women. The rationale for this being the sexual exploitation and physical violence women had suffered as a result of being incarcerated with men.  Recognised as long ago as more than 200 years ago and indeed unchallenged for almost all of that period. 

Until, in Scotland at least, 2014. Whereupon the Scottish Prison Service announced that there were to be two sorts of prisons in Scotland. Those, on the one hand, for men and those, on the other for women and for men claiming to be women. But this did not then, nor ever has, accorded with the law of Scotland.

Prisoners are people who have seriously broken the law or. if remanded for trial, believed to have done so. They have, by their own actions, forfeited their right to liberty. But that is all they have forfeited. They are still entitled to be treated with human dignity. That was recognised as long ago as 1823. And again as recently as 2011, when the Prisons and Young Offenders Institutions (Scotland) Rules, came in to force.

Their provisions are quite clear at Rule 126. 

"126(1) Female prisoners should not share the same accommodation as male prisoners"

No qualifications.

Yet in 2014 the Scottish Prison Service consciously decided to ignore this. To ignore the law (for it is and always has been the law). 

Completely captured by Trans campaigners, they announced that in future prisoners would be segregated not as female or male but in the "gender" with which they identified. As opposed to the sex they actually were.

There was no legal justification for this, Even at the height of the controversy of The Gender Recognition Reform Bill, nobody had tried to make instant "self id" the law of Scotland. Yet between 2014 and January 2023 that is the basis on which the Scottish Prison Service operated. A woman was whoever claimed to be a woman, no matter how they looked or what it stated on their birth certificate. So, despite the law, female prisoners would require to share accommodation with male prisoners. Even if the law said they "should not" do so. 

Now, as I'm sure my readers will know, this nonsense all fell apart as a result of the Adam Graham/Isla Bryson case in January 2023. Male offenders were from that point onwards to go to male prisons, no matter how they identified. Up to a point at least. But, even if that should never have been otherwise, that had undoubtedly become the law as declared since March 2022 when the Court of Session determined that, in For Women Scotland v The Scottish Government (No.1) that the Scottish Parliament or Government did not have the power to redefine the meaning of "a woman" in Scots Law. From that point onwards at least the Scottish Prison Service had operated not only in the face of the Prison Rules at face value but also ignoring the unchallenged further decision of the Scottish Courts at our highest level. 

But this is where I come back to my earlier "up to a point". For in December 2023 the Scottish Prison Service came up with its new guidelines. From now on no man convicted of violence towards women or sexual offences more generally can be held in the female estate. "Phew" you might think. Except some men still are! For just this last week we had the court decision at Greenock Sheriff Court whereby one Janey Sutherley was found not proven over an allegation of transphobic abuse of a man, Alan Baker now known as Alex Stewart, within Greenock Prison where, while being a man, Mr Baker is serving a murder sentence. The rationale for Mr Baker being in a woman's prison being that, although he committed a murder, it was only the murder of a man. 

And now we come to my concluding point. Ms Sutherley is herself a convicted murderer. But she did not thus lose her right to be incarcerated with dignity. That has been the law since 1823. In modern terms she has the right to be incarcerated in accordance with Rule 126. Which she hasn't been and isn't being. That will give her remedies. The right to an order that she be incarcerated in a woman only prison and that she be awarded damages for not have being so accommodated in the past. And she will not be alone in seeking this first remedy with other current prisoners or the latter remedy with other female prisoners now released. Several hundred female prisoners I suspect. All entitled to damages. 

And the better news still is that Ms Sutherley has instructed her solicitor to pursue this. Opening, I suspect, a floodgate of similar claims

But, best of all, J.K. Rowling has offered to fund such an action, 

Meanwhile my advice to those responsible for this debacle within the Scottish Prison Service would be to take your pension and get out, 

A waste of Parliament's time.

 To be honest, the Scottish Parliament which I campaigned for and indeed was, for many years, keen to be a member of has been more than a bit of a disappointment. I don't by that mean that the Scottish Government's have been a disappointment. I might think, recently at least, that they have been but that would be a Party partisan point. I mean instead that the Parliament itself as an institution has been a disappointment. For it seems unable to realise when it is wasting its own time.

I give but one historical example although there are others. In May 2015, Sandra White, a SNP backbencher introduced a piece of legislation called the Footway Parking and Double Parking (Scotland) Bill. This was a meretricious measure aimed at penalising footway and double parking. In principle it had cross Party support. The problem was that it was not, then, within the devolved competence of the Scottish Parliament. This was due to an obscure reservation to Westminster of powers over public roadways that was within the terms of the original 1998 Scotland Act. The reservation was removed by the 2016 Scotland Act but patently hadn't been in 2015. Ms. White had overlooked this but the legal advisers to the Presiding Officer had not and in the statement of legislative competence the Presiding Officer was by law obliged to issue in relation to any Bill when introduced, the Presiding Officer pointed this out. Now, you would have thought that would have been the end of the matter. But it wasn't. For the next ten months this ultra vires Bill was considered, including twice with evidence being taken,  by no less than seven committee meetings of the Parliament. all proceeding on the, indisputable anyway, knowledge that the Bill was incompetent. It only finally fell when the Parliament was dissolved in March 2016 for the Scottish General Election of that year.

Now, why am I drawing your attention to this footnote in history? Because in the grand scheme of things and with a much more important and contentious piece of legislation, Liam McArthur's Assisted Dying for Terminally Ill Adults (Scotland) Bill. This Bill is not within the legislative competence of the Scottish Parliament. That is not just my opinion, it is the opinion of The Scottish Government (!) and of Liam McArthur himself (!!). 

In a memorandum sent to the lead committee, The Health Minister wrote on 30th September past in the following terms.

17. In the Scottish Government’s view, the Bill in its current form is outside the legislative competence of the Scottish Parliament. Of particular concern is section 15(8), which gives power to the Scottish Ministers to specify, in regulations, a drug or other substance as an “approved substance” (to be provided to the terminally ill adult to end their own life), and appears to relate to the reserved matter of medicines, medical supplies and poisons (section J4 of schedule 5 of the Scotland Act 1998). 

18. Furthermore, and noting that the Bill represents a novel and fundamental shift in the role of medical practitioners, and the regulatory framework in which they operate, from protecting/enhancing patients’ lives to assisting in termination of life, it is considered that the following provisions in the Bill may relate to the reserved matter of regulation of the health professions (section G2 of schedule 5 of the Scotland Act 1998): • Sections 4(5)(a) and 6(6)(a) of the Bill, which make provision for the Scottish Ministers to specify, in regulations, qualifications and experience of registered medical practitioners who can carry out functions under the Bill. • Section 7(2)(c), which requires a registered medical practitioner, where they have sought a second opinion from another medical practitioner, to take that opinion into account (in carrying out an assessment of a terminally ill adult). • Section 18 of the Bill, which gives a right to conscientious objection.

Now, it is not as if this has passed Mr McArthur by, for the Memorandum goes on to observe

 19. The Bill’s  [own]Policy Memorandum, at paragraph 7 onwards, acknowledges that, in order to have a truly comprehensive assisted dying scheme “something else would likely need to happen”, and makes reference to the possibility of using various Orders under the Scotland Act 1998, such as a section 30 Order. The Scottish Government agrees that further processes would have to be gone through in order to bring the Bill within competence. 

But the crucial point is what follows. 

20. It should be noted that the process for such an Order generally takes 12-18 months and would require the co-operation of the UK Government, as it requires the approval of both Houses at Westminster, as well as the Scottish Parliament, before it is made by His Majesty in Council. This process would need to be completed prior to a vote being taken on the Bill at Stage 3. (my emphasis, for a s.30 cannot be retrospective). 

Now, the process for a s.30 hasn't even formally started. It is unlikely to be an uncontentious one and the issues relating to the regulation of the medical profession, in particular, would throw up wider issues than those relevant to the current legislation so, even if the UK Government are willing to start that process (of which there is no evidence they have even been asked to do) it is difficult to see the process being concluded in less than the minimum period of twelve months the Scottish Government give as the lowest estimate of time a s.30 would take. Given that the current Holyrood Parliament will be dissolved in less than eleven months to allow the 2026 General Election to take place then it becomes patent that this Bill cannot possibly pass. or even be put forward to pass. before that dissolution. If it hasn't then with that dissolution the Bill would fall, At best, post the election, Mr McArthur or another MSP would need to start again if or when a s.30 was ultimately granted. And if the current Leadbetter Bill fails to pass the Commons for England and Wales that would become a pretty big if.  Mr. McArthur must recognise this, but he, and the Parliament, just carry on. 

Now assisted dying is a contentious matter raising hope for some and fear in others but my point is that the current exercise is just a complete waste of time. But nobody in the Scottish Parliament seems willing to point that out.