Strengthening the Independent Scrutiny Bodies through ...



Strengthening the Independent Scrutiny Bodies through Legislation Consultation by the Ministry of JusticeResponse of the Equality and Human Rights Commission30 September 2020IntroductionThe Equality and Human Rights Commission has been given powers by Parliament to advise government on the equality and human rights implications of laws and proposed laws and to publish information or provide advice, including to Parliament, on any matter related to equality, diversity and human rights. The UK Government is responsible for protecting human rights in places of detention under a range of international treaties and rules, as well as under domestic legislation through the Human Rights Act 1998. Key rights in this context include: the right to life; freedom from torture and inhuman or degrading treatment; and the right to respect for a private and family life. Everyone is entitled to equal protection of these rights. Treatment of people in detention is one of the Commission’s strategic priorities, so we welcome the opportunity to respond to proposed changes to scrutiny and oversight. Although the bodies identified in the consultation monitor a number of different places of detention, we have focussed our response on prisons. Many of the themes and recommendations will however be relevant to other settings. We have responded to the questions most relevant to our equality and human rights remit.Independent scrutiny is crucial to ensure that conditions and treatment in prisons are monitored and concerns are reported and addressed. This includes any matters relating to equality or human rights. England and Wales has the highest imprisonment rates in western Europe. Almost half of prisons are overcrowded and many have poor living conditions. Time out of prison cells is often limited, and self-harm, self-inflicted deaths and violence are major concerns. There is no national data on use of force and other forms of restraint in adult prisons, despite commitments by HM Prison and Probation Service in 2019 to introduce a national reporting tool. Many of these issues have been exacerbated in recent months by the coronavirus pandemic, including ongoing concerns about the introduction of PAVA incapacitant spray in male prisons.Some groups sharing protected characteristics may be at heightened risk of harm in prisons. People from ethnic minorities are significantly overrepresented in the prison population, particularly in youth settings. Women are often imprisoned for low-level and non-violent offending, with significant impacts on their well-being and their dependents. Although government data is limited, evidence suggests many disabled people are in contact with the criminal justice system. The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) is an international human rights treaty designed to protect people deprived of their liberty. It requires regular, independent visits to places of detention and sets out a national and an international monitoring framework. This serves as a safeguard against abuse and ill-treatment in closed settings. After the UK ratified OPCAT, the UK’s National Preventive Mechanism (UK NPM) was established in 2009. It is made up of 21 bodies that independently monitor places of detention.Summary of recommendationsWe recommend that the UK Government:Introduces legislation to put these bodies on a statutory footing so that their remit, independence and powers are clarified and strengthened: the Prisons and Probation Ombudsman (PPO), HM Inspectorate of Prisons (HMIP), Independent Monitoring Boards (IMBs), Lay Observers (LOs), The Independent Advisory Panel on Deaths in Custody (IAP) and the UK National Preventative Mechanism. Within this legislation we recommend that the UK Government:Gives the PPO statutory powers to compel witnesses to give interviews. Creates a power so the PPO and HMIP can access information relevant to their investigations or inspections.Includes the Urgent Notification process in the statutory framework that underpins HMIP. Creates a legislative requirement that prisons and the Ministry of Justice must respond to HMIP recommendations. Includes the role of HMIP, IMBs, LOs and UK NPM under OPCAT within the statutory framework that underpins these bodies. Does not adopt the ‘Scottish model’, merging IMBs and LOs with HMIP.Introduces provisions to facilitate information-sharing between IMBs, LOs, HMIP, PPO and the UK NPM. Refers explicitly to OPCAT articles setting out requirements for NMPs in the legislation underpinning the UK NPM. We further recommend that the UK Government:Creates an inspection body to scrutinise the performance of the courts. Prisons and Probation Ombudsman a) Do you agree that The PPO should be established in legislation? Yes. We recommend that the PPO (including the Ombudsman’s role) is established in legislation so that its role, powers and remit are clarified. It will increase their impact in terms of holding prisons to account for the treatment of detainees, including upholding equality and human rights standards. It will formalise existing arrangements and increase the PPO’s authority and status. Putting it on a statutory footing will increase the public perception of PPO as an autonomous scrutiny body, and underline its independence from the Ministry of Justice. This will be helpful to the organisation itself, as well as to a range of stakeholders – such as the public, prisons, detainees and their families - who will better understand what the PPO is allowed to do. We previously supported this provision when it was included in the Prison and Courts Bill, which fell before the 2017 General Election. In 2019, the Justice Committee also recommended that the PPO be ‘put on a proper statutory footing’. The PPO have sought this development for a number of years. In their 2015-16 annual report, the Ombudsman said: ‘Unlike most Ombudsmen, I have no statutory basis for my work. This means that my investigations do not have the force of law and are ultimately dependent on the goodwill of those we investigate. This is not good enough for a robustly independent body, committed to exposing the truth without fear or favour. While Ministers have reaffirmed their support for placing my office on a statutory footing, no legislative opportunity has yet been found.’The PPO has repeatedly raised concerns about their recommendations not being implemented. Our inquiry into deaths in custody also highlighted that some prisons don’t fully implement their recommendations. Putting the PPO’s work on a statutory footing will underline their authority and status, increasing the likelihood that their recommendations are adopted and taken forward. b) Do you agree that a statutory power should be created for the PPO to access places, people and documents? Yes. We recommend that this statutory power is created so that the PPO can access relevant information easily, to ensure they can perform their independent scrutiny role effectively. The provision will formalise existing arrangements and clarify what the PPO is able to do. We previously supported this provision when it was in the Prison and Courts Bill.d) Are there any further legislative provisions you’d like to see for the PPO? We recommend that the PPO is given powers to compel witnesses to give interviews, to support their investigations. At present, the PPO is not able to compel prison staff to attend interviews when undertaking investigations. This includes in relation to deaths in custody. Our inquiry into non-natural deaths in custody highlighted that deaths in detention too often involve breaches of people’s most basic human rights – including the right to life. Under Article 2 (of the Human Rights Act 1998) the Government has a positive obligation to protect life. Where the State might have some responsibility, deaths must be independently investigated. As part of our inquiry, we produced a Human Rights Framework which sets out the steps required in relation to these investigations. This includes taking all reasonable steps to secure relevant evidence relating to the death. Enabling the PPO to interview prison staff would actively support this requirement.HMI Prisons e) Do you agree that the ‘Inspectorate’ should be recognised in statute? Yes. We recommend that the inspectorate is put on a statutory footing. The role of Chief Inspector of Prisons is currently underpinned by legislation, but the wider inspectorate is not. This would increase their impact in terms of holding prisons to account and upholding the equality and human rights of detainees. It would help to clarify the role and powers of HMIP to stakeholders. The provision would also bring the inspectorate into line with related bodies, such as HM Inspector of Probation. HMIP support this development, particularly as it would strengthen their authority and their independence from the Ministry of Justice. In his 2016-17 report, the Chief Inspector reflected on the Prison and Courts Bill (which gave statutory recognition to HMIP’s independence). He said: ‘Incorporating this into legislation would have had the effect of making Parliament the guardian of our independence, which would have been a most welcome development.’ HMIP is a member of the UK NPM, and putting the wider Inspectorate on a statutory footing would support the requirements under OPCAT for NPM members to be independent. Article 18 of OPCAT states that ‘States Parties shall guarantee the functional independence of the national preventive mechanisms as well as the independence of their personnel. f) Do you agree that HMI Prisons should be given a statutory power to access places, people and documents which reflects the power they already have? Yes. We recommend that this statutory power is created so that the wider Inspectorate can access relevant information easily, to support their independent scrutiny role. We previously supported this provision when it was included in the Prison and Courts Bill. This provision would formalise existing arrangements and clarify what HMIP is allowed to do. Article 20 of OPCAT states that NPM members should have: ‘The opportunity to have private interviews with the persons deprived of their liberty without witnesses, either personally or with a translator if deemed necessary, as well as with any other person who the national preventive mechanism believes may supply relevant information’. In our view, creating this statutory power for HMIP would support this requirement and protect and embolden those who seek to share confidential information with the Inspectorate. h) Are there any further legislative provisions you’d like to see for HMI Prisons? Speak to HMIP re any other matters.We recommend that the Urgent Notification process is included in the statutory framework that underpins HMIP. The Urgent Notification process is a protocol between the Inspectorate and the Ministry of Justice, agreed in 2017. If, during an inspection, the Chief Inspector has serious concerns about treatment and conditions in a prison, they can write to the Secretary of State, who must respond with an action plan within 28 days. Both the Chief Inspector’s letters to the Secretary of State and their action plans must be published, to aid transparency. The process was first used in January 2018.While agreed protocols are in place, the Urgent Notification process is not set out in legislation, leaving potential for an inadequate response to the Inspector’s concerns. This is particularly important as failures to respond to concerns has featured in prisons where standards are unacceptably low. As the Chief Inspector reported to the Justice Committee: ‘When you look at the five prisons that have so far been subjected to the urgent notification process, one of the common factors is an utterly appalling response to recommendations in the past. How that was allowed to happen for so long is still something of a mystery to me, but I hope that in the future transparency and accountability is seen as a strength, not a weakness, on the part of the Prison Service’.In our view, putting the Urgent Notification process on a statutory footing would bring formal recognition to established practice. It would increase the authority of the Inspectorate, increase accountability and ensure that prisons and the Ministry of Justice respond effectively when serious concerns are raised. We recommend that there is a legislative requirement that prison and/or the Ministry of Justice inspected bodies respond to HMIP recommendations. The Chief Inspector of Prisons has raised numerous concerns about the Inspectorate’s recommendations not being implemented. In a recent annual report, he said: ‘It has therefore been of particular concern to see that, in some prisons, our reports have not been taken sufficiently seriously. In some cases, they appear to have been almost completely ignored. This is disappointing and counterproductive.’ In oral evidence to the Justice Committee, he reported that ‘2018–19 was the third year running that fewer recommendations were achieved than not achieved.’ In our view, it is crucial that prisons and the Ministry of Justice are required in legislation to respond to HMIP recommendations, to ensure there is accountability for and action to address poor standards that risk breaching people’s rights.We recommend that the HMIP’s role under OPCAT is included in the statutory framework that underpins the inspectorate. In our view, to support HMIP’s role as a member of UK NPM, it is important that its OPCAT role is included in the legislation that underpins it. There should be explicit reference to Articles 17-23 of OPCAT, which set out the requirements for NPMs. These include provisions relating to: functional independence; staff expertise and representation; resources; inspection powers; making recommendations; developing legislation and accessing information, places, and people. They also cover: communication with the UN Subcommittee on Prevention of Torture; defence against sanctions; protection of privileged information; responding to NPM recommendations and publication of annual reports. Independent Monitoring Boardsl) Do you agree that the Chair of the IMBs should be placed in statute? Yes. We recommend that IMBs (both the Chair and the National Management Board) are established in legislation so that their role, powers and remit are clarified. This could be done under a national association of IMBs, for example. This will be helpful to IMBs themselves, their Chair, Management board and Secretariat. It will strengthen their independence from the Ministry of Justice. It will increase their capacity to uphold equality and human rights for detainees. It will enable stakeholders to better understand what IMBs are allowed to do. Overall, it would drive improvements in conditions and treatment for those detained. IMBs support this approach. Their National Chair said: ‘As IMBs, the problem we have is that the Government created a new governance structure?because of the role we can play to complement what [HMI Prisons] do, but at the moment?it is sitting on fresh air because it does not have a statutory basis.’ The Justice Committee has also recommended that IMBs are put on a statutory footing. They said: ‘The?IMBs?play a vital role in the oversight of the prison?system and we believe they need to be reinvigorated. We?echo the National Chair of the IMBs call for a?statutory basis for the national governance structure.?We?recommend that?the Ministry consider legislation to underpin the national governance structure?and in particular that there should be a formal national?IMB Annual Report laid before Parliament each year. The United Nations Subcommittee on Prevention of Torture (SPT)?has further criticised the lack of a statutory footing for NPM members. The Head of Delegation has said: ‘The visiting bodies do an impressive amount of good work, but a more robust legislative framework is needed to achieve full compliance with the Optional Protocol.’ IMBs are members of the UK NPM, and so putting them on a statutory footing would support the requirements under OPCAT for NPM members to be independent.m) Do you agree that the National Management Board should be placed in statute? Yes. Please refer to the reasons set out above (for the National Chair). o) Are there any further legislative provisions you’d like to see for the IMBs?We recommend that the IMB’s role under OPCAT is included in the statutory framework that underpins them. It is vital that the IMB’s role under OPCAT is included in the legislation that underpins them. As stated above (in relation to HMIP), the legislation should refer explicitly to OPCAT articles 17-23, which outline the requirements for NPM members. Lay Observers p) Do you agree that the position of Chair should be placed in statute? Yes. We recommend that Lay Observers (both the Chair and the National Council) are placed in statute. This will underline the authority and functions of LOs themselves, their Chair, National Council and Secretariat. Putting LOs on a statutory footing will increase public perception of their independent scrutiny and underline their autonomy from the Ministry of Justice. It would increase their capacity to uphold equality and human rights in prisons. LOs are members of the UK NPM. We recommend that their role under OPCAT is included in the statutory framework that underpins them.q) Do you agree that the National Council should be placed in statute? Yes. Please refer to the reasons set out above, in relation to the Chair of the Lay Observers National Council. Independent Advisory Panel on Deaths in Custodyt) Do you agree that the IAP and its purpose of providing independent advice with the central aim of preventing deaths in custody should be established in legislation? Yes. We recommend that the IAP (both the Chair and the Panel) are placed on a statutory footing. In the 12 months to June 2020, there were 294 deaths in prison custody, 76 of which were self-inflicted. Introducing legislation to underpin the IAP would underline the importance of their work, and increase their authority. It would increase their capacity to uphold equality and human rights in prisons. A statutory footing would promote awareness about their role and clarify their purpose (to prevent deaths in custody). To be able to deliver their objectives, it is crucial that they are placed on a permanent footing. Statutory status would also ensure that the IAP is independent of government. A recent review of the IAP underlined this: ‘The [IAP’s] functions are to provide expert independent advice on a sensitive and high-profile subject. Their advice therefore needs to be, and be seen to be, independent of Government to maintain public confidence.’ ‘The Scottish Model’ v) Do you think that HMI Prisons, the IMBs, and the Lay Observers should all be merged under HMI Prisons (the Scottish model)? No. We recommend that this model is not adopted, and that IMBs and LOs are not merged with HMIP. While this may create opportunities to streamline functions and standards, it could result in reduced scrutiny and accountability for upholding equality and human rights standards in detention. It is unclear that the Scotland model could be scaled effectively to work in England and Wales, given the very different prisons infrastructure. We are further concerned that there could be a reduced focus on local accountability and the more day-to-day issues people face in prisons, which is a crucial element alongside a broader national focus on more systemic problems. Are there any other models that have not been outlined in this consultation document that you think would work? We recommend that provisions to facilitate information sharing between scrutiny bodies are included in the legislation that underpins IMBs, LOs, HMIP, PPO and the UK NPM.Due to the various roles played by scrutiny bodies, it is vital that they are able to share relevant information about treatment and conditions in prisons. OPCAT Article 20 requires NPM members to have ‘Access to all information referring to the treatment of those persons as well as their conditions of detention.’ In our view, putting this function on a statutory footing would support that requirement. We recommend that the government takes concrete steps to create an inspection body to scrutinise the performance of courts. There is no longer a dedicated inspectorate for the courts and this is a significant gap in oversight of the criminal justice system. We recently undertook an inquiry into the experience of disabled people in the criminal justice system. This shone a light on the issues that people face in the pre-trial phase, including issues around identification of additional needs and provision of reasonable adjustments to court processes. In line with our inquiry evidence, it is our view that there should be a courts inspectorate to monitor and report on the performance of the courts. This should include the extent to which they enable effective participation for defendants.The National Preventive Mechanism We would welcome your views on giving the NPM a possible statutory basis and how this might be done in light of the particular nature of the NPM. Yes. We recommend that UK NPM is put on a statutory footing. This would be in line with OPCAT requirements. The legislation that underpins the UK NPM should refer explicitly to OPCAT articles setting out for NPMs. It would be helpful if it underlined that members of the UK NPM work to prevent ill-treatment in custody, and that the overall role of the UK NPM is to coordinate the work of these bodies. We urge the Government to work closely with NPM members to take this matter forward. In our view, a statutory footing for the UK NPM would help to clarify its powers, role and remit to stakeholders. It would increase its impact in terms of holding prisons to account and upholding equality and human rights standards. It would increase its status and authority, highlight the importance of its work and underline its independence from government. It would mean that only Parliament would be able to change its role and remit.We have previously called for this development, including in a recent report to the UN Committee Against Torture. We said: ‘The UK Government should introduce legislation to ensure and safeguard the independence of the NPM and provide sufficient resources to permit the effective implementation of its mandate in line with the requirements of the OPCAT’. The UK NPM is supportive of this provision. In his 2016-17 annual report, the Chair said: ‘A key challenge for us remains our informal status, lack of legislation and guarantees of independence and, finally, the inadequate nature of the resources available centrally’. A number of other bodies have also called for this development. In 2019, the Justice Committee repeated its recommendation for the National Preventative Mechanism to be put on a ‘proper statutory footing.’ The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment recently recommended that: ‘the authorities of the United Kingdom take such steps as may be necessary to ensure that the NPM is fully in compliance with OPCAT requirements, notably the requirement for statutory recognition of the NPM’. The Committee against Torture has reported its concern that: ‘while each of the 21 bodies that are members of the UK NPM operate under their own statutory provisions, the Mechanism itself is not provided for in legislation and the legislation creating many of the member bodies does not refer to their mandate under the Mechanism.’ The Committee ‘remains concerned that the absence of legislation impedes the NPM’s independence, notwithstanding action taken to reduce its members’ reliance on staff seconded from places of deprivation of liberty.’ They recommended that the Government: ‘clearly set out in legislation the mandate and powers of the secretariat and members of the National Preventive Mechanism and guarantee their operational independence.’ ................
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