Written submission from the Howard League for Penal Reform in Scotland on
Draft Public Services Reform (Inspection and Monitoring of Prisons) (Scotland) Order 2014

1. We welcome the opportunity to comment upon the Draft Public Services Reform (Inspection and Monitoring of Prisons) (Scotland) Order 2014.

2. The monitoring of prisons is a vital function that provides real time, regular scrutiny of our prisons and constitutes an essential element of our obligations as signatories to the UN Optional Protocol to the Convention Against Torture (OPCAT).

3. We welcome the commitment to provide training for the Independent Prison Monitors – something that Visiting Committee members have long called for.

4. The creation of two types of monitor did not form part of Professor Coyle’s recommendations and when consulted on the original draft of the order, Howard League Scotland made clear that it saw no need for the three Paid Monitors. However, the change of name (from ‘Paid Monitors’ to ‘Prison Monitoring Coordinators’) would appear to reflect a rethinking of their role as one that coordinates and supports the ‘Independent Prison Monitors’ (previously ‘Lay Monitors’).

5. However, in practice, the proposed system remains very hierarchical, with much of the activity of the Independent Prison Monitors being directed by the Prison Monitoring Coordinators, who are in turn to be directed by the Chief Inspector of Prisons.

6. We note that the proposed system will cost more than the existing system and that there are now likely to be four, full-time Prison Monitoring Coordinators (PMCs), rather than three part-time PMCs, as originally envisaged.

7. We remain concerned that whilst the draft order specifies a minimum number of Prison Monitoring Coordinators, it does not specify a minimum number of Independent Prison Monitors or suggest a formula for the calculation of a minimum number, depending on the size and type of penal establishment.

8. Nor does the order specify the frequency with which Independent Prison Monitors must visit each penal establishment. Currently there is a statutory requirement for prisons to be visited by two Visiting Committee members every two weeks.

9. We are concerned that the provision for independent prison monitors to handle prisoner complaints has been substantially weakened. The only reference to this issue in the draft order is as follows:

7D(3) Rules made under Section 39 may make provision for assistance to be provided by independent prison monitors in any complaints process provided for under those rules.

The inference here is that IPMs should assist prisoners to lodge complaints via the SPS internal complaints system provided for under the Prison Rules.

10. There are a number of points we wish to raise in connection with this issue:

a. Often an intervention by a Visiting Committee member involves resolving an issue for a prisoner before it becomes a complaint. As Professor Coyle noted in his report: “It may also transpire that the prisoner does not have a complaint in the strict meaning of that word but wishes to seek the assistance of the Visiting Committee to resolve a personal problem or merely to seek information.”

b. It is crucial that prisoners have access to a means of raising concerns and complaints that is independent of the complaints system managed by the Scottish Prison Service (SPS). This is for the following reasons:

i. Many prisoners are mistrustful of the SPS complaints system.
ii. Some issues raised by prisoners require a quick resolution that the SPS complaints system is not capable of delivering.
iii. The SPS complaints system is paper-based and a significant proportion of the prison population has poor literacy skills.
iv. In some cases, prisoners are reluctant to lodge a complaint via the SPS internal complaints system for fear of recrimination (e.g. when complaining about the behaviour of a prison officer).

11. Prisons are closed environments where abuses of power are always a possibility. Unlike those who are in the care of the state or in receipt of public services in the community, persons deprived of their liberty require additional safeguards. Therefore it is absolutely vital that there remains a means by which prisoners can raise concerns (or complaints) which is independent and unconnected with the SPS internal complaints system.

12. We are mindful of the fact that prisoners are able to seek recourse to independent adjudication through the Scottish Public Services Ombudsman (SPSO) under the following circumstances:
“We look into complaints where a member of the public claims to have suffered injustice or hardship as a result of maladministration or service failure. We are the ‘last resort’, and look at complaints which have been through the formal complaints procedure of the organisation concerned.” (SPSO website)

13. However, as Professor Coyle noted in his report: “An important feature of a prisoner’s right to raise matters with Visiting Committee members is that this is one the few external avenues which includes the ability to speak face to face with an independent person.” Nor is it open to prisoners to seek redress via the SPSO unless they are able to demonstrate that they have utilised the SPS internal complaints system. We have already made clear why there are often good reasons why prisoners may not wish to raise concerns or complaints by this means.

14. In general terms, there is a shift from specifying the duties and requirements of the prison monitoring function from statute to guidance. As noted above, the draft order does not specify a minimum frequency with which IPMs are to visit prisons or a minimum number of IPMs for each penal establishment. This is a matter of concern because changes can be made to the guidance without recourse to Parliament.

15. The redrafted order now makes provision for the setting up of a Prison Monitoring Advisory Group. In addition to the functions set out under Section 7F(4), such a Group should exist to provide a ‘challenge function’ to those carrying out monitoring work. For that reason, we suggest that any staff involved in monitoring should attend the Group as observers rather than members. Also, recruitment to the Group should be carried out under an open public appointments system for specified periods.

16. Four of Professor Coyle’s recommendations were referred for consideration to the Independent Monitoring Implementation Group. In recent meetings of this Group, Howard League Scotland has repeatedly argued in favour of these recommendations:
o Recommendation 7 - Monitors should be appointed under an open public appointments system for specified periods.

o Recommendation 13 - The monitors for each prison should elect a chairperson and to meet as a group in the prison at least every two months.

o Recommendation 14 - Arrangements should be made for appointing a paid clerk to take the minutes of each meeting of the independent prison monitors and to assist in administrative matters including preparing the annual report and any other reports as necessary. Monitors should have appropriate accommodation and other facilities.

o Recommendation 15 - Provision should be made for a Council of Independent Prison Monitors to include one monitor from each prison. The Council should agree protocols for, among other matters, recruitment, appointment and training of independent monitors as well as a format for annual reports.

17. It is now time for the Scottish Government to state publicly whether or not it favours the adoption of these recommendations and if they are to be rejected, it must make clear the reasons why. If the recommendations are to be adopted, then we would like to see them included in the order.

18. It would be helpful if the Scottish Government could methodically list those of Professor Coyle’s recommendations that it accepted in the wake of his report that it now rejects. For example, it would appear that Recommendation 5 (“The independent monitors for each prison should submit an annual report to Scottish Ministers and should publish these reports.”) has been superseded by the proposal that there should be one overarching annual report for all 16 penal establishments in Scotland.

19. The current review of the role of Visiting Committees commenced in January 2011 and even on the most optimistic timescale, the new arrangements are unlikely to be in place before the summer of 2015. During this time period, we are aware that the numbers of Visiting Committee members have been dwindling, due to the uncertainty about their role and disappointment at the way in which the process has been handled. The ultimate losers in this process are those held in Scottish prisons, for whom this important scrutiny function exists to serve.