Appointment of Parole Board members

45.     Section 5(3) contains 9 new paragraphs to be inserted into schedule 2 to the 1993 Act (paragraphs 2A to 2J) which regulate the conditions of service of Parole Board members.

46.     Paragraph 2A provides that a Parole Board member will have a term of office of not less than 6 years and not more than 7 years. The variable length of appointment is designed to ensure that all appointments can end on 31 December, even if they begin on a date other than 1 January. The term of appointment provided for in this paragraph is, however, subject to paragraphs 2B to 2D.

47.     Although every member will be appointed for between 6 and 7 years, paragraph 2B provides that he or she is still entitled to resign at any point during that term by notifying the Scottish Ministers accordingly.

48.     Paragraph 2C provides that a Parole Board member's appointment will end on reaching his or her 75th birthday regardless of whether the period of appointment under paragraph 2A has expired. It also means that no person can be appointed or re-appointed as a member of the Parole Board after the age of 75.

49.     Paragraph 2D provides that a Parole Board member's appointment will come to an end if that member is removed from office by the tribunal that is provided for in the new paragraph 3 of schedule 2 to the 1993 Act (inserted by section 5(4)).

50.     Paragraph 2E provides that a person may be reappointed as a member of the Parole Board only if two conditions are fulfilled. One is that at least 3 years have passed since the person was previously a member and the other is that the person has not already been reappointed under these provisions.

51.     Paragraph 2F allows a person who has previously been a member of the Parole Board but who has resigned from that office to be reappointed, provided the conditions laid out in paragraph 2E are fulfilled.

52.     Paragraph 2G precludes the reappointment of a person who has been removed from office under the new paragraph 3 of schedule 2 to the 1993 Act.

53.     Paragraph 2H provides that a person who is reappointed under paragraph 2E will be subject to the provisions of paragraphs 1 to 2D in the same way as a person who has been appointed for the first time.

54.     Paragraph 2J requires the Chairman of the Parole Board to ensure that, where possible, each member of the Parole Board has the opportunity to participate in the functions of the Board for at least 20 days in each 12-month period.

Removal of Parole Board members from office

55.     Section 5(4) replaces the original paragraph 3 of schedule 2 to the 1993 Act with new paragraphs 3 to 3D. These new paragraphs set out the grounds for removing a Parole Board member from office and the procedure for doing so.

56.     Paragraph 3 places the responsibility for deciding on removal on a tribunal to be constituted for this purpose.

57.     Paragraph 3A provides that the tribunal can remove a member from office only if an investigation has been carried out at the request of the Scottish Ministers and that investigation has found the member to be unfit for office because of inability, neglect of duty or misbehaviour.

58.     Paragraph 3B determines the membership of the tribunal. The members will be appointed by the Lord President of the Court of Session and will be:

     (a) a Senator of the College of Justice or a sheriff principal (who shall preside),

     (b) an advocate or a solicitor who has been qualified for at least 10 years; and

     (c) one other person who shall not be legally qualified.

59.     Paragraph 3D(a) allows the Scottish Ministers to make regulations, which will allow the tribunal to suspend a member of the Parole Board from office during an investigation. The regulations may also make provision for the length and effect of any such suspension. Sub-paragraph (b) empowers the Scottish Ministers to make any other provision considered necessary in respect of the tribunal, including procedure to be followed by and before it.

60.     Section 5(5) inserts paragraphs 6A and 6B into schedule 2 to the 1993 Act. These paragraphs provide that the regulations under paragraphs 1A and 3D of schedule 2 will be made by statutory instrument, and must be laid in draft before and approved by a resolution of the Scottish Parliament.

61.     Section 5(6) gives effect to Part 6 of the schedule for the purpose of making transitional provisions for existing members of the Parole Board.

PART 3

LEGAL AID

62.     This Part of the Act deals with the extension of advice and assistance and civil legal aid under the Legal Aid (Scotland) Act 1986 (the "1986 Act"), gives additional powers to the Scottish Ministers to enable specified cases to be excluded from the fixed payments scheme, provides a retrospective power for future changes to the fixed payments scheme, and makes further provisions about the employment of solicitors by the Scottish Legal Aid Board (the "Board").

Extension of advice and assistance and civil legal aid under the 1986 Act

63.     Section 6(1) amends section 6(2) of the 1986 Act by extending the definition of "court or tribunal" in Part 2 of the 1986 Act, which relates to advice and assistance. This has the effect of allowing advice and assistance to be made available for any proceedings or bodies which determine persons' civil rights and obligations.

64.     Section 6(2) amends section 13 of the 1986 Act by extending the definition of "court or tribunal" in Part 3 of the 1986 Act, which relates to civil legal aid. This has the effect of allowing civil legal aid to be made available for any proceedings or bodies which determine persons' civil rights and obligations. This section also repeals subsection (5) of section 13, which is considered redundant.

65.     Section 6(3) inserts a new regulation making power into section 14 of the 1986 Act. It provides that for certain courts and tribunals as will be specified in the regulations, further tests of eligibility may be prescribed by those regulations over and above the existing tests of probabilis causa, reasonableness and financial eligibility. These regulations will be made by the Scottish Ministers and subject to negative resolution procedure.

66.     Section 6(4) makes a consequential change to section 16, which relates to expenses in favour of certain assisted persons, to ensure that it also applies to any proceedings or bodies covered by the amended definition of "court or tribunal" as inserted in section 13(6) of the 1986 Act by section 6(2) of this Act.

67.     Section 6(5) inserts a new section 38(1A). This is a consequential change to ensure that the amended definition of "court or tribunal" applies in section 38(1)(a), which relates to the power of the Court of Session to regulate the procedure of courts and tribunals in relation to legal aid.

Fixed payments for criminal legal assistance: exceptional cases

68.     Section 7 of the Act inserts new subsections (3C) to (3K) into section 33 of the 1986 Act.

69.     New subsection (3C) allows the Scottish Ministers to make regulations in which they can prescribe the circumstances and conditions under which a solicitor shall be paid under section 33(2) and (3) of the 1986 Act instead of being paid under section 33(3A) of the 1986 Act. This means that a solicitor will be paid on a "time and line" basis rather than under the fixed payment scheme. The purpose of these regulations is to enable the Scottish Legal Aid Board to ensure that a person who is provided with criminal legal assistance under section 33(3A) of the 1986 Act is not deprived of the right to a fair trial because of the amount of the fixed payments payable under section 33(3A) of the 1986 Act (see new subsection (3D)). Such regulations will be subject to negative resolution procedure.

70.     New subsection (3J) allows the Scottish Ministers to apply any regulations made under subsection (3C) retrospectively to cases ongoing at the time of the commencement of section 7 of the Act. It also enables the Scottish Ministers to disapply any conditions in the regulations made under subsection (3C)(b) to any such ongoing cases.

71.     Subsection (3K) requires the Board to set up a procedure to allow the review of any decision by it to refuse an application under subsection (3H) or determine that a solicitor is not to be paid under section 33(2) and (3) of the 1986 Act.

Criminal legal assistance: retrospective revision of fixed payment regulations

72.     Section 8 of the Act inserts new subsections (3AA), (3AB) and (3AC) into section 33 of the 1986 Act. These new subsections will enable regulations made under section 33(3A) (which amend or replace existing regulations made under section 33(3A)) to apply retrospectively. This retrospective power is for the purpose of ensuring that no person is deprived of the right to a fair trial as a result of the total amount payable under the regulations prior to amendment or replacement. The regulations would apply retrospectively to any commenced and continuing proceedings where criminal legal assistance was being provided when the amendment or replacement regulations come into force.

Employment of solicitors by the Board: further provisions

73.     Section 9 of the Act makes amendments to sections 4, 11, 12, 25A, 25B, 26, 28A and 31of the 1986 Act to enable the Board to use its powers under section 26 of that Act to directly employ solicitors for the purpose of providing criminal legal assistance.

74.     Sections 9(1) and (2) amend sections 4 and 11 of the 1986 Act which deal with the provision of advice and assistance and any associated contributions to ensure that any client represented by a directly employed solicitor is treated in the same way as a client represented by a private solicitor under legal aid, in relation to expenses and payment of contributions respectively.

75.     Section 9(3) amends section 12 of the 1986 Act. This is to ensure that the salary of a directly employed solicitor is not subject to the regulations that apply to the payment of legal aid fees and expenses to a private solicitor providing advice and assistance under Part II of the 1986 Act.

76.     Sections 9(4) and (5) amend sections 25A and 25B of the 1986 Act respectively. The amendments have the effect of ensuring that any solicitor employed by the Board under section 26 of the 1986 Act for the purpose of providing criminal legal assistance is required to be registered under section 25A of the 1986 Act and allow the Board to set different provisions in a Code of Practice under section 25B for such directly employed solicitors.

77.     Section 9(6) amends section 26(1)(a) of the 1986 Act by inserting a new regulation making power. This power will allow the Scottish Ministers to prescribe the cases in which the Board may employ solicitors for the purposes of providing advice and assistance under Part II of the 1986 Act. Such regulations will be subject to negative resolution procedure.

78.     Section 9(7) amends section 28A of the 1986 Act. The effect is to ensure that the provisions of section 28A have no effect on the power to commence sections 26 to 28 of the 1986 Act. The amendments also have the effect of ensuring that provisions that would by virtue of section 28A(12) cease to have effect would remain in force in relation to solicitors employed under sections 26 to 28 of the 1986 Act.

79.     Section 9(8) amends section 31(1A) of the 1986 Act. The effect is that the entitlement of a person to select a solicitor or counsel under section 31(1) of the 1986 Act does not apply where that person is provided with criminal legal assistance by a solicitor employed by the Board under sections 26 and 27 of the 1986 Act.

PART 4 - HOMOSEXUAL OFFENCES

Repeal of section 13(2)(a) of the Criminal Law (Consolidation) Act 1995

80.     Section 13(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 provides that a homosexual act in private is not an offence provided that the parties consent and have obtained the age of 16 years. Section 13(2)(a) provided that an act which would otherwise be treated for the purposes of the 1995 Act as being done in private should not be so treated if done when more than two persons took part or were present. The effect of section 13(2)(a) of the 1995 Act was that it was an offence for more than two consenting adult males to take part in homosexual acts in private. Section 10(a) repeals section 13(2)(a).

81.     Section 10(b) makes a necessary consequential amendment to section 13(5)(b) of the 1995 Act. Section 13(5)(b) made it an offence to commit or to be party to the commission of, or to procure or attempt to procure the commission of a homosexual act without the consent of both parties to the act. Section 8(b) changes the reference to "both parties" to "the parties" to cover the situation where more than two men are involved.

PART 5

PROCURATOR FISCAL OF THE LYON COURT

82.     Part 5 amends the Lyon King of Arms Act 1867 to transfer from the Lord Lyon to the Scottish Ministers the power to appoint the procurator fiscal to the Lyon Court.

Appointment of procurator fiscal of the Lyon Court

83.     Section 11(2) amends section 9 of the 1867 Act to remove references to the procurator fiscal of the Lyon Court.

84.     Subsection (3) inserts a new section 9A, which provides for the procurator fiscal of the Lyon Court to be appointed by the Scottish Ministers on such terms and conditions as they determine.

85.     Subsection (4) provides that the incumbent procurator fiscal will cease to hold office on the day this Part of this Act comes into force.

PART 6

POWER TO MAKE REMEDIAL ORDERS

86.     Part 6 confers a power on the Scottish Ministers under which they are able to make orders ("remedial orders") to remedy any actual or potential incompatibility between provisions in primary or subordinate legislation and the ECHR.

Remedial orders

87.     Section 12(1) confers power on the Scottish Ministers to make remedial orders and defines the scope of that power. Further clarification of the scope of the power is contained in section 12(3). A remedial order may be made as a consequence of any Act of Parliament, Act of the Scottish Parliament, subordinate legislation made under any such Act, any provision in any such Act or subordinate legislation or any exercise or purported exercise of functions by a member of the Scottish Executive, which is or may be incompatible with any of the Convention rights. Ministers may make such provision as they consider necessary or expedient. Section 12(2) further provides that before using the power, Ministers must be satisfied that there are compelling reasons for taking the remedial order route as opposed to some other route (such as using primary legislation). Similar wording appears in section 10(2) of the Human Rights Act 1998.

88.     Section 12(3)(d) enables a remedial order to modify any enactment, prerogative instrument (such as an Order in Council), other instrument or document provided these relate to the exercise or purported exercise of functions by the Scottish Ministers.

89.     Section 12(3)(e) provides that a remedial order may make provision which has retrospective effect, since actions or provisions which are or may be incompatible are likely to have already taken practical effect. This mirrors the provision that is made for remedial orders under the Human Rights Act (see paragraph 1(1)(b) of schedule 2 to that Act) and the subordinate power in the Scotland Act 1998 to remedy ultra vires Acts or exercises of functions (see sections 107 and 114 of the Scotland Act). However, provisions which increase the punishment for, or create, criminal offences are specifically excluded from having retrospective effect. Section 12(3)(f) specifies that the remedial order may provide for the delegation of functions.

90.     Section 12(4) restricts the scope for creating offences in a remedial order by imposing maximum penalties which may be imposed for any such criminal offences. For an offence punishable on summary conviction, the maximum penalty is restricted to 3 months' imprisonment or a fine not exceeding level 5 on the standard scale. For more serious offences, punishable on indictment, the maximum penalty is restricted to 2 years' imprisonment. No limit is placed on the fine that may be imposed.

91.     Section 12(5) confirms that the conferring of this power to make a remedial order does not affect any other power which the Scottish Ministers may have to remedy the ECHR incompatibility, such as any existing powers to make regulations.

Procedure for remedial orders: general

92.     Section 13 outlines the general procedure which the Scottish Ministers must follow in making a remedial order. Section 13(1) confirms that the order is made by statutory instrument.

93.     Section 13(2) provides that the remedial order cannot be made until it has been laid in draft before, and approved by resolution of, the Scottish Parliament (affirmative resolution procedure).

94.     Section 13(3) provides that, before the order is laid in draft for this purpose, the Scottish Ministers must give the Scottish Parliament and the public the opportunity to comment on a copy of the proposed draft order by:

Laying a copy of the proposed draft order and a statement of their reasons for making the order before the Parliament;

Giving appropriate public notice of the proposed order, inviting comments in writing. Such comments are to be made within a period of 60 days beginning with the earlier of the day the notice was given or the day the proposed order was laid (this may be, but need not be, the same day);

Having regard to any comments made within that period.

95.     Section 13(4) provides that when laying the draft remedial order for approval, the Scottish Ministers must also lay a statement which summarises the comments made during the 60 day period outlined in section 13(3)(b) and which specifies any changes made to the draft order and the reasons for those changes.

Procedure for remedial orders: urgent cases

96.     Section 14(1) confers power on the Scottish Ministers, for reasons of urgency, to make a remedial order forthwith without applying the procedure specified in section 13.

97.     The remainder of section 14 specifies the procedure that the Scottish Ministers must follow having made an urgent remedial order.

98.     Section 14(2) provides that the Scottish Ministers must, after making the order, give appropriate public notice of the contents of the order, inviting comments in writing to be made within a period of 60 days beginning with the day the order was made. Ministers must also lay the order before the Scottish Parliament with a statement of reasons for having made it.

99.     Section 14(3) provides that the Scottish Ministers must have regard to comments made within the stipulated period. Section 14(4) provides that as soon as practicable after the end of the period, Ministers must lay a statement before the Scottish Parliament summarising the comments made and specifying the changes (if any) they consider should be made to the order.

100.     Section 14(5) outlines the procedure to be followed if the Scottish Ministers consider that changes should be made to the original remedial order. Ministers must either make a second remedial order which gives effect to those changes and replaces the original remedial order and lay it before the Scottish Parliament or make an order which simply revokes the original remedial order. Section 14(8) provides that an order that simply revokes a remedial order will be made by statutory instrument and that instrument will be made subject to annulment in pursuance of a resolution of the Scottish Parliament (negative resolution procedure).

101.     Section 14(6) provides that the Scottish Parliament must, if it so chooses, within a period of 120 days from the date when the original remedial order was made, approve the original order or the second remedial order where it has replaced the original order. If the remedial order is not approved within this time, the remedial order, or as the case may be, the second remedial order, will cease to have effect. However, this will not affect anything done under either order or the power which the Scottish Ministers have to make a new remedial order.

102.     Section 14(7) provides that section 14(6) has no effect where the Scottish Ministers simply revoke the original remedial order within the period of 120 days referred to in that subsection.

103.     Section 14(9) ensures that any period during which the Scottish Parliament is dissolved or is in recess for more than 4 days does not count towards the 60 day period specified in section 14(2)(a) or the 120 day period specified in section 14(6).

SCHEDULE

TRANSITIONAL PROVISIONS

PART 1

Existing life prisoners

104.     Part 1 of the schedule to the Act makes provision for handling the cases of existing life prisoners. The interpretation and ECHR compatibility of Part 1 was considered in Flynn & Ors v HMA, Privy Council, 18^th March 2004 (see also the earlier decision of the High Court at 2003 SLT 2003.

105.     Paragraph 1 defines a life prisoner to whom Part 1 of the schedule applies. Such a prisoner is referred to as an "existing life prisoner" (see paragraph 2). An "existing life prisoner" is a life prisoner who was sentenced for murder committed by the prisoner when aged 18 years or over and who was sentenced prior to the provisions contained in Part 1 of the schedule coming into force (paragraph 1(a)), or a prisoner in respect of whom the Lord Justice General or the Lord Justice Clerk has issued a certificate under paragraph 6(1) of schedule 6 to the 1993 Act or section 16(2) of the Crime and Punishment (Scotland) Act 1997 under previous transitional arrangements for discretionary life prisoners and under 18 murderers (paragraph 1(b)).

106.     Paragraphs 3 to 26 set the arrangements for the referral of the cases of existing life prisoners to the High Court to enable those prisoners to have a punishment part fixed so that they can be treated under the new release regime.

107.     Certain life prisoners had the punishment element of their sentenced fixed previously by a judge under the law as it stood before this Act. Provision is made to enable those prisoners to waive their right to the hearing provided they confirm they have had independent legal advice or have declined the opportunity to take such advice and the Scottish Ministers receive a written copy of the waiver.

108.     Provision is also made to enable a report from the original trial judge to be made available for the purposes of the hearing even if the report was originally prepared on the understanding that it would not be disclosed to the prisoner

109.     Paragraph 25 makes provision for existing life prisoners (other than those released on compassionate grounds in terms of section 3 of the 1993 Act) who have already been released from prison on life licence before the provisions in Part 1 of the schedule to this Act come into force. A prisoner in this category will, on the date the provisions in Part 1 of the schedule come into force, be deemed to be a prisoner who was released on licence under section 2(4) of the 1993 Act (as amended by section 1(3)(d) of this Act) as if that prisoner had been a life prisoner to whom section 2(4) applied and who had served the punishment part of his sentence. If a prisoner requires to be recalled to prison for any reason after this he will be treated under the new provisions.

110.     Paragraph 26 provides that where an existing life prisoner released on licence is treated, by virtue of paragraph 25, as a prisoner who was released under section 2(4) of the 1993 Act, then the validity of his licence will not be affected by the absence in the licence of such a condition as is specified in section 12(2) of the 1993 Act. Section 12(2) of the 1993 Act contains two standard conditions for inclusion in a prisoner's licence on release from prison. They are that the prisoner shall be under the supervision of a relevant social work authority or probation officer and that he shall comply with such requirements as that officer might specify for the purposes of supervision. It is not a statutory requirement that these conditions appear in the licence of a prisoner released under the 1989 Act, although such conditions do appear in almost all licences issued under the 1989 Act.

     PART 2

     Existing designated life prisoners

111.     Paragraphs 27 to 30 make provision so that, when the Act comes into force, the designated part of a designated life prisoner's sentence is treated as a punishment part. Provision is also made so that the Parole Board is required to fix a date for its next consideration of a prisoner's case, being no more than 2 years from its last consideration, where it has not directed the prisoner's release when it last considered the case.

     PART 3

Existing life prisoners recommended for release

112.     Part 3 of the schedule makes additional transitional provision to ensure that certain existing adult mandatory life prisoners who have been recommended for release before the new provisions come into force are not disadvantaged.

113.     Paragraph 31 specifies the categories of prisoner to whom Part 3 applies. In order to obtain the benefit of the transitional provisions the prisoner must satisfy the requirements of paragraphs 31(a) to (c). Paragraph 31(a) and (c) apply Part 3 to prisoners who have had a recommendation for release from the Parole Board prior to the relevant date and to whose release the judiciary do not object. Paragraph 31(b) provides that the provisions of Part 3 apply only to those prisoners who have not received a hearing under Part 1. Once a hearing has taken place and a punishment part has been set under Part 1, Part 3 ceases to apply and the prisoner is dealt with under section 2 of the 1993 Act as amended by this Act.

114.     Paragraph 32 provides that "existing life prisoner" has the meaning given in paragraph 1(a) of Part 1 of the schedule, namely a person who was prior to the relevant date sentenced for a murder committed when the person was aged 18 years or over. "Punishment part" has the same meaning as in Part 1. "Relevant date" means the date when this Part of the schedule comes into force. "Provisional release date" ("PRD") is defined to ensure that, if the PRD fixed by the Scottish Ministers or the Parole Board has been fixed by reference to a month but not to a particular day in that month, e.g. release in July 2001, the prisoner would be released on the first day of that month provided that day was not a Saturday, Sunday or public holiday. In the latter case, the prisoner would be released on the last preceding day which was not a Saturday, Sunday or public holiday. "Public holiday" has the meaning given in section 27(8) of the 1993 Act, that is, any day on which in the opinion of the Scottish Ministers, public offices or facilities the prisoner is likely to need in the area he is likely to be following release will be closed.

115.     Paragraph 33 provides that, where a PRD has been fixed by the Scottish Ministers, the prisoner will be released on licence on that date and deemed to be released as if he had already served his punishment part and the Parole Board had directed his release under 2(4) of the 1993 Act. The requirement that the Scottish Ministers release the prisoner on the PRD is, however, subject to paragraph 34.

116.     Paragraph 34 provides the Scottish Ministers with the power to refer a prisoner for whom they have fixed a PRD back to the Parole Board before his release for a review of the original recommendation to release. This power is restricted to cases where Ministers are of the view that either the prisoner's conduct before release or a material change in the prisoner's circumstances suggests that a review is required to ensure that the Board is still satisfied that there will be no unacceptable risk to the public from that release. The power may be exercised, for example, if, during the pre-release programme, the prisoner commits a serious disciplinary offence or there is a change of some significance in the prisoner's plans on release.

117.     Paragraph 35 stipulates that the review referred to in paragraph 34 falls within the functions of the Parole Board which are contained in section 20 of the 1993 Act. This will enable the Parole Board Rules that are made under section 20 to be amended to require the Parole Board to sit in its tribunal capacity when carrying out a review under paragraph 34. Paragraph 36 requires the Parole Board to carry out such a review as soon as reasonably practicable after the case has been referred to it by the Scottish Ministers.

118.     Paragraph 37 provides that, where the Scottish Ministers refer a prisoner back to the Parole Board under paragraph 34, it has two options. It can either direct that the PRD should continue to apply and that the Scottish Ministers should release the prisoner on the PRD or, alternatively, it can direct that the PRD no longer applies.

119.     Paragraph 38 provides that, even if the Parole Board has made a direction under paragraph 37(a) that the PRD be adhered to, if the Scottish Ministers consider that either the prisoner's behaviour between the time of that direction and the PRD or a material change in the prisoner's circumstances gives rise to concern about the protection of the public, they may refer the case back to the Parole Board for review. In such a case, paragraphs 35 to 37, 39 and 40 apply as they would to a referral made under paragraph 34.

120.     Paragraph 39 provides that where the Parole Board has made a direction to the release a prisoner on or after the prisoner's PRD, the Scottish Ministers shall release the prisoner as soon as reasonably practicable after the direction is made and the prisoner shall be regarded as having been released under section 2(4) of the 1993 Act on the PRD.

121.     Paragraph 40 provides that if the Parole Board, on undertaking a review under paragraph 37, is of the opinion that the PRD should no longer apply, the end of the day prior to the PRD should be regarded as being the end of the prisoner's punishment part and that punishment part would be deemed to have been given in accordance with the provisions in this Act amending the 1993 Act. This means that at the expiry of the punishment part the prisoner's case would be referred to the Parole Board sitting as a tribunal to consider whether or not he should continue to be confined for the protection of the public. If the Parole Board does not direct release at that stage a further tribunal would be held under section 2 of the 1993 Act.

122.     Paragraph 41 deals with those prisoners whose PRD has not yet been fixed by the Scottish Ministers. These are the cases where, although there is a favourable Parole Board recommendation and the judiciary do not object to release in accordance with that recommendation, Ministers have not had an opportunity to consider the prisoner's suitability for release before the new provisions of the Act came into force. It provides that such a prisoner will be released on the date recommended by the Parole Board and deemed to be released on licence as if the prisoner had already served his punishment part and the Board had directed his release under section 2(4) of the 1993 Act. This mirrors the provision in paragraph 33 for prisoners for whom Ministers have fixed a PRD. Paragraph 41 is subject to paragraphs 34 to 40. This means that, as with the cases in which the Scottish Ministers have fixed a PRD, Ministers have the power to refer the case back to the Parole Board in the event of an adverse development occurring before the PRD.

123.     Paragraph 42 provides the Scottish Ministers with an additional power for prisoners whose PRD has been fixed by the Parole Board. In view of the fact that, as mentioned above, Ministers will not have had an opportunity to consider the prisoner's suitability for release before this Act comes into force, they are given power to refer the case back to the Parole Board if they consider, on looking at the available information, that there is a need for a further review. Paragraph 43 provides that if the Scottish Ministers wish to refer a prisoner back to the Board under paragraph 42, they must do so no later than two weeks after this Act comes into force.

124.     Paragraph 44 mirrors paragraph 35 and provides that the consideration and disposal of the prisoner referred to in paragraph 42 falls within the functions of the Parole Board which are outlined in section 20 of the 1993 Act. This will enable the Parole Board Rules that are made under section 20 to be amended to require the Parole Board to sit in its tribunal capacity when considering and disposing of the reference by Ministers. Paragraph 45 mirrors paragraph 36 and requires the Board to consider the prisoner's case as soon as reasonably practicable after it has been referred to it by the Scottish Ministers.

125.     Paragraph 46 mirrors paragraph 37 and ensures that, where the Scottish Ministers refer a prisoner back to the Parole Board under paragraph 42, the Board has the power to direct the Scottish Ministers to release the prisoner on the PRD, or direct that the PRD no longer applies.

126.     Paragraph 47 mirrors paragraph 40 and provides that if the Parole Board, on undertaking a review under paragraph 42, is of the opinion that the PRD should no longer apply, the end of the day prior to the PRD should be regarded as being the end of the prisoner's punishment part and the punishment part would be deemed to have been given in accordance with the provisions in this Act amending the 1993 Act. This means that at the expiry of the punishment part the prisoner's case would be referred to the Parole Board sitting as a tribunal to consider whether or not he should continue to be confined for the protection of the public. Paragraph 48 mirrors 39 and requires the Scottish Ministers to release the prisoner as soon as reasonably practicable after the Board's direction is made. It further provides that the prisoner shall be regarded as having been released under section 2(4) of the 1993 Act.