Prisons in Scotland: who is responsible?
On 25 April, following the judgment in the UK Supreme Court, we wrote to Angela Constance MSP, Cabinet Secretary for Justice, asking the Scottish Government to withdraw the Scottish Prison Service (SPS) policy of housing some male prisoners in parts of the prison estate reserved for women, based on their self-declared gender identity. Others, including For Women Scotland (FWS), have made the same argument. Questions have been asked in the Scottish Parliament by Pam Gosal MSP, Annabelle Ewing MSP and Stephen Kerr MSP.
This blog looks at the reply we received, which is in line with those given to MSPs and FWS, and explains why the Minister’s attempt to distance herself from decisions taken in relation to the policy is misdirection. We set out the relationship between Ministers and the SPS, and explain why, in the event of any court case, it is Scottish Ministers who would be sued.
SPS policy on the Management of Transgender People in Custody
The SPS policy on The Management of Transgender People in Custody was re-issued in December 2023. It still provides for men, including those with a history of violence, to be held among women prisoners at the discretion of management. We have written about this in more detail here.
Our correspondence with the Cabinet Secretary
Our full letter to the Cabinet Secretary is available here. We concluded:
The SPS developed its revised 2023 policy following the backlash over the placement of double-rapist Adam Graham (Isla Bryson) in the female estate. Despite the obvious negative implications for women, the SPS retained the same broad principles as its previous 2014 policy.
In its bid to embed gender self-identification in the prison service, the SPS has treated female prisoners as collateral damage. It has housed some of Scotland’s most violent men with some of Scotland’s most vulnerable women.
It is a stain on Scotland’s reputation that Scottish Ministers ever permitted this sexist and regressive policy.
In the absence of immediate action by the SPS, it now falls on Scottish Ministers to use its powers to direct the SPS to operate lawfully, meet its statutory obligations under the Equality Act 2010, and put single-sex arrangements in place throughout Scotland’s prison estate.
On 27 May, the Cabinet Secretary responded that (emphasis added):
Issues relating to the management of individuals in prison are for the Chief Executive of the Scottish Prison Service (SPS) who is operationally responsible for matters such as the location, movement, discipline, care, welfare and interventions for all prisoners.
As a public body, SPS is required to comply with the Equality Act 2010 and other relevant legislation and like all public bodies is currently considering the outcome of the Supreme Court judgement and the Equality and Human Rights Commission (EHRC) interim update published on 25 April.
This is an incomplete account of how policy and legal responsibilities work here. First, the issue is the policy within which decisions about individuals are made. Second, the SPS has no legal identity separate from Scottish Ministers.
Now-familiar Scottish Government lines were also offered on waiting for the EHRC Code of Practice. We do not deal with those here.
What is the Scottish Prison Service?
The SPS is an ‘executive agency’ of the Scottish Ministers. This means the SPS itself has no ‘legal personality’ independent of Ministers. All its staff are civil servants.
An executive agency is a type of government body used most often for operational front-line work. They were introduced in the 1990s, and are found most often in contexts where it would be either impractical or indefensible, or both, for Ministers to be closely involved in decision-making, but where central government does not want to hand over the task to a full-blown arms-length ‘non-departmental public body’, more commonly called a quango.1 Senior management in agencies will have a wider range of formal delegated authority, compared to civil servants who work for Ministers day-to-day. Agencies are used widely across the UK, on the theory that they balance political accountability with day-to-day operational independence.
As the Scottish Government’s guide to public bodies explains (emphasis added):
6. Executive Agencies are an integral part of the Scottish Government. They support Ministers in their work, focussing on delivering parts of Government business or providing a specialised function. They have well-defined remits which are aligned with and help deliver the Government’s purpose and objectives. They generally have a strong focus on the management and direct delivery of public services. However, our Agencies also, to one extent or another, provide strategic policy input. In some cases, our Agencies carry responsibility for a discrete area of Government policy and activity and thus work very closely with Ministers. Their staff are civil servants including the Chief Executive, who is directly accountable to Ministers. Agencies are not statutory bodies but operate in accordance with a Framework Document which is approved by Ministers and may be reviewed, amended or revoked at any time. Director Generals and Directors (depending on the seniority of the Chief Executive) are responsible for ensuring that agencies play a full part within portfolios in support of Ministers’ policies and priorities.
Functions of Agencies are such that:
- there are good reasons for the service being delivered at ‘arm’s length’ from Ministers while remaining part of the Scottish Government, as opposed being part of an SG core department, the responsibility of another public body or the private sector or contracted out
- they involve delivering public services which do not require day to day Ministerial oversight but for which Ministers should nevertheless remain accountable
- it is appropriate for the service to be delivered by civil servants and for Ministers to set the strategic direction
The ten executive agencies that work to Scottish Ministers are listed here.
One familiar to many people will be the Students Awards Agency Scotland (SAAS). SAAS processes individual student support applications and has discretion to make judgements about cases which are difficult or marginal within the rules, but it works within a legal and policy framework set by Ministers. It advises on some of the more technical aspects of that, and has some freedom to set internal policies and processes, but it does not set high-level policies on tuition fees, grant levels or loan entitlements. Ministers still make the important policy choices that shape its work.
The SPS Framework document
A shared understanding of where government’s immediate input stops, and the agency takes over in practice, is set out in a ‘framework document’ for each agency.
The SPS Collaborative Working Framework Document was last reviewed in 2024. It outlines the service’s relationship with the Scottish Ministers and the Scottish Government. It notes (emphasis added):
9. Status as an Executive Agency means that SPS has autonomy in carrying out its Executive functions within the terms of this framework, whilst remaining directly accountable to the Scottish Ministers for the standards of its work.
10. SPS also has responsibility for providing honest, impartial and objective advice to the Scottish Ministers on policy in relation to all aspects of Scottish Prisons and operational matters therein…
The SPS therefore has day-to-day autonomy, but also works to and with Ministers on policy issues.
There are specific sections on the role of the Chief Executive, and her relationship with Ministers and the Permanent Secretary. The Chief Executive is embedded in the machinery of central government, including (emphasis added):
12. The Chief Executive is a civil servant who is personally accountable to the Scottish Ministers for the economic, effective, and efficient operation of SPS. The Chief Executive is the Accountable Officer for the Agency and is appointed by the Permanent Secretary, who themselves are the Principal Accountable Officer for the Scottish Administration.
13. The Chief Executive has overall responsibility for the delivery of the functions of SPS, as set out at paragraphs 24 to 89 below, in accordance with the aims, policies and priorities of the Scottish Ministers. In fulfilling this responsibility, the Chief Executive will lead the Agency and:
a. set strategic and operational plans to deliver the functions of SPS, focusing on how the work of SPS can most effectively contribute to achievement of the outcomes in the National Performance Framework, the Programme for Government and Scotland’s Economic Strategy in collaboration with the SG and other public bodies.
b. ensure that effective governance is established and maintained, including ensuring that decision-taking is open and transparent and, with support from the SPS Advisory Board and Executive Management Group to ensure that key risks are identified and managed
…
g. where appropriate will manage relationships and engage with the Portfolio Accountable Officer, with other SG officials who have an interest in the work of SPS and other key partners and stakeholders in the justice system.
…
l. be a member of and attend relevant strategic, cross-cutting or policy coordination groups within Scottish Government and the wider Justice system as required.
Ministers may therefore not be involved in individual prisoner cases or day-to-day decisions about staffing or the prison estate, but prisons must still be run “in accordance with the aims, policies and priorities of the Scottish Ministers.”
As the framework document notes
20. In exceptional circumstances, the Chief Executive may seek advice and comment from the Scottish Ministers on operational matters and procedures.
At the time of the high-profile and politically-sensitive Adam Graham/Isla Bryson case, for example, there was widespread speculation about how much the Scottish Government had been in touch with the SPS, when Bryson was diverted to the women’s prison at Cornton Vale and, then again, when he was removed from there the next day to a men’s prison.
Relationship with senior officials
The Chief Executive also has a formal relationship with the Permanent Secretary through the ‘accountable officer’ system, and works with civil servants in the central part of the Scottish Government in other ways. As the framework document notes (emphasis added):
15. The Permanent Secretary is the Principal Accountable Officer for the Scottish Administration and is responsible for designating, under section 15 of the Public Finance and Accountability (Scotland) Act 2000, the relevant Director General as the Portfolio Accountable Officer, and the Agency Chief Executive as the Agency Accountable Officer. These Accountable Officers have personal responsibility to Parliament for the propriety and regularity of public finances for the part of the Scottish Administration for which such Accountable Officers have stewardship…
18. The DG Portfolio Officer will approve the appointment of the Chief Executive in accordance with the Scottish Government’s resourcing policy and will hold them to account for the performance of SPS and its use of resources. Ministers are ultimately accountable to the Scottish Parliament for the performance of SPS….
24. The Portfolio AO will…
b. ensure that financial and other management controls being applied by SPS are appropriate and sufficient to safeguard public funds and conform to the requirements both of propriety and of good financial management.
c. ensure that the Chief Executive as Accountable Officer participates fully in Director General (DG) risk assessment and assurance activity, including regular DG assurance meetings.
d. ensure that the Chief Executive and/or senior agency staff with policy advice responsibility are routinely involved in relevant policy discussions in SG, including ensuring they are members of relevant cross-cutting or policy coordination groups, to ensure the overall coherence of policy advice being provided to the Scottish Ministers…
28. Colleagues in Justice Directorate provide a liaison function between SPS and SG, coordinating correspondence and briefings with SPS and ensuring SPS and prison policy is taken into account in wider policy development in SG.
This means the the ‘accountable officers’ with responsibility for the SPS within the core Scottish Government (up to and including the Permanent Secretary) are among those who would be accountable to the Parliament in the event of any successful legal claim over failure to change SPS policy following the Supreme Court judgment. They would have to explain what legal advice was taken, for example, and how risks arising from that were assessed.
Who owns the policy on the management of transgender people in custody?
The policy on the management of transgender people in custody is badged as belonging to the SPS, but its content reflects the policy preferences of Scottish Government. This is unsurprising, because the SPS is part of that government and is expected to work in line with wider government policy.
Thus the Scottish Government’s approach of delaying any response to the Supreme Court judgment is reflected in the lack of change to prison policy in Scotland, following the recent Supreme Court judgment.
How any legal challenge would work
Agency status means that the SPS has no ‘legal personality.’ As a result, whenever a prisoner or their family seeks legal redress for anything that has happened to them while in custody, it is Scottish Ministers who are legally liable.
For example, one of the most high-profile stories in the early years of devolution was the legal challenge to ‘slopping out’, brought by a prisoner who argued it breached his human rights. The case was brought against Scottish Ministers, not the SPS, and the government was closely involved in the attempt to defend it and then, when it was lost, and other prisoners were also due compensation, with the aftermath.
In any legal case, Scottish Ministers are therefore the party who would be sued. They might well seek to recover any financial loss from the SPS’s budget, but the legal liability would rest with ministers. As the Framework document states:
86. SPS is subject to the SG policy of self-insurance. Commercial insurance must however be taken out where there is a legal requirement to do so and may also be taken out in the circumstances described in the Insurance section of the SPFM – where required with the prior approval of the Senior Lead Officer and SG Finance. In the event of uninsured losses being incurred the SG shall consider, on a case by case basis, whether or not it should make any additional resources available to the Agency.
Conclusion
Ministers cannot keep the matter of SPS compliance with the judgment of the Supreme Court in For Women Scotland v the Scottish Ministers at arm’s length. They may seek to give the impression that any decisions here are for SPS management, and not for them. How believable that is politically is a matter of opinion, but as a matter of law, there is no doubt at all where the buck stops.
Notes
- Non-departmental public bodies (NDPBs) are legally freestanding organisations, usually set up by legislation, with a board through which accountability runs. They may often still have a close working relationship with government, as the funder, and Ministers may have formal powers of direction which can be used in defined circumstances. However, responsibility for their decisions is distinct from ministers, in a way which is not the case for executive agencies. A full list of Scottish Government NDPBs that have operational responsibilities, which includes organisations such as the Children’s Hearings Scotland and Scottish Enterprise, is available here. Some NDPBs are only advisory: those are listed here. ↩︎