Detail of Provisions Automatic early release Previous position
30.The 1993 Act already included (at section 27(2)(b)) a power for the Scottish Ministers to provide that references to a particular proportion of a prisoner’s sentence in Part 1 of the 1993 Act are to be construed as references to a different proportion of a prisoner’s sentence. This existing power would therefore already have allowed the automatic early release point for some prisoners(6) to be adjusted by secondary legislation, as well as allowing adjustments to other things which are determined by reference to a proportion of a prisoner’s sentence too (such as when a prisoner’s sentence is referred to the parole board).
31.However, the power in section 27(2)(b) of the 1993 Act is limited in a number of ways—
	any change it makes to the law would not be shown on the face of the 1993 Act;
	it does not allow different provision to be made for different purposes, meaning that more nuanced changes could not be made for different categories of prisoner (such as those who are imprisoned for particular offences);
	because it only allows a reference to a proportion of a sentence to be construed as referring to a different proportion—it does not allow a proportion to be changed to a fixed period of time,it can no longer be used in relation to those long-term prisoners for whom automatic early release is, since 2016, calculated by reference to a fixed period of time(7).
32.There is also an existing power in section 7(1A)(b) of the 1993 Act which allows the Scottish Ministers to provide that references to the proportions of sentence referred to in that section are to be construed as references to different proportions of a sentence. This power relates to those who were detained as children under section 208 of the 1995 Act (see paragraph 28 of these Notes). However, this power has many of the same limitations as the power which exists under section 27(2)(b) of the 1993 Act in respect of prisoners.