Consultation on the Draft Public Services Reform (Prison Visiting Committees) (Scotland) Order 2014: Analysis of Written Responses

Section 2: The Structure Overall

2.1 This section presents the findings relating to overall views of the proposed changes and the structure.

Summary of Section 2

The main focus of the comments on the proposed changes was upon the identification of issues or concerns with the proposals, and / or the identification of suggestions for further consideration in taking forward the draft Order.

In terms of overall views, although respondents were not asked to indicate their support or otherwise for the proposals, it was clear that there was some variation by type of respondent. VCs and individual respondents generally expressed disagreement or highlighted substantial concerns with these. There were more mixed views among other types of respondent, with evidence of both support and concerns.

In terms of specific themes, most of the respondents made some comments on the current situation. Those identified most frequently were: the need for reform; positive aspects of the current system; and the overall importance of independent monitoring.

Most of the respondents, whatever their view of the proposals and structure overall, expressed their support for, or positive views of some aspect of developments to the system of independent monitoring of prisons.

Additionally, several expressed positive views of the effects of the proposed changes. The most common related to: the promotion of consistency; compliance with OPCAT; and the nature and effectiveness of the approach.

The identification of issues or concerns and / or suggestions, however, was very common. Many comments focused on the proposed oversight by HMCIPS and the perceived impact of the structural proposals generally. Concerns related to: the distinction between inspection and monitoring and the lack of clarity of this); a perceived negative impact of the proposals on the independence of Monitors and monitoring; the level of costs and use of resources; and concerns about the nature and effectiveness of the proposed structure overall.

Many respondents also raised issues or concerns, or made suggestions about the nature or proposed roles of Monitors (Section 3). Other issues were also raised relating to the draft Order overall and related issues (Section 4).

Overall pattern of views

2.2 In terms of the general pattern of views, the main focus of respondents' comments overall was upon the identification of issues or concerns with the proposals, and / or the identification of suggestions for further consideration in taking forward the draft Order.

2.3 Although, as noted, the consultation did not ask specific questions about whether or not respondents supported the proposals overall and the proposed structure, it was clear that there was some variation by type of respondent. It was found that VCs and individual respondents generally expressed disagreement or highlighted substantial concerns with the proposed changes and / or overall structure. There were more mixed views among other types of respondent, with evidence in most other categories of both support and concerns. There were some respondents, given that no specific questions were asked, whose overall views were unclear.

2.4 Within this broad overall pattern, respondents made a wide range of additional comments on the draft Order. These included comments on the general structure and proposals for oversight of monitoring to become part of the function of HMCIPS; comments on the proposed nature and roles of Monitors; and comments on other aspects of the draft Order and related issues.

2.5 The findings relating to the general structure, and the proposals for oversight of monitoring to become part of the function of HMCIPS are presented in the remainder of this section. (Issues raised relating specifically to the proposed nature and role of Monitors are presented in Section 3, and those relating to other aspects of the draft Order in Section 4.)

2.6 In relation to the general structural arrangements (including the proposals for oversight by HMCIPS), a number of common themes emerged. These related to:

• The current situation.
• Support for particular developments.
• Perceived benefits of the proposed structure.
• Issues or concerns with the proposed structure.
• Suggested developments.

2.7 Each of these is discussed in detail below.

The current situation

2.8 Most of the respondents made some comments on the current situation. The most common issues raised were: the need for reform; positive aspects of the current system; and the overall importance of independent monitoring.

The need for reform

2.9 The most common theme relating to the current system was the overall perceived need for reform (or some changes) or for review. Most of the local authority respondents, for example, made comments on this issue, as did most of the IMCOs and both individual respondents. Some (although a smaller proportion) of the VC respondents also raised this issue.

2.10 Comments made included views of a perceived need to:

• Update current arrangements and improve specific aspects or perceived weaknesses of these (e.g. consistency and standardisation; independence; funding; accountability; recruitment; and aspects of practice).
• Ensure compliance with OPCAT.
• Improve training and support to those undertaking monitoring.
• Modernise and streamline processes.
• Provide a service "fit for purpose".
• Review and evaluate the work of VCs.

Positive aspects of the current system

2.11 A further theme was the identification of perceived positive aspects of the current system. Many respondents made reference to such issues, and specific points identified included:

• General positive working (e.g. clarity of monitoring and reporting; a good appointments process for VC members; informality of VCs; training; and dealing with prisoner complaints).
• Clarity of existing legislation and Prison Rules.
• Independence.
• Transparency.
• Local links (e.g. the involvement of lay people from the community in which the prison operates; inclusion of local elected members).
• Prisoner confidence.
• The support and training provided by the Association of Visiting Committees (AVC).

The importance of independent monitoring

2.12 Many respondents also made general comments about the importance of independent monitoring. Perceived reasons for this which were identified included, for example:

• The general need for independent monitoring and scrutiny of prisons.
• Safeguarding prisoners' rights and preventing human rights violations.
• Public accountability and reassurance, and transparency in the justice system.
• Compliance with Article 3 of the European Convention on Human Rights (ECHR) and OPCAT obligations.
• Involvement of community interests.

Other aspects of the current situation

2.13 Among the other comments made on the current situation, a few respondents reiterated details of the current situation (e.g. providing details in their response of the draft Order, or detailing the legislative basis of VCs). Comments were also made about the history of reform.

2.14 One respondent provided details of arrangements for independent monitoring in England and Wales.

Support for particular developments

2.15 Most of the respondents, whatever their overall view of the proposals and structure overall, expressed their support for, or agreement with some aspect of developments to the system of independent monitoring of prisons.

2.16 Several VCs and a few other respondents, for example, welcomed the confirmation of the continuation of independent prison monitoring. One VC also welcomed the decision to make available to those undertaking independent prison monitoring the rights of access currently available to VC members.

2.17 Other issues for which support or agreement was identified by some respondents included:

• The general requirement for reform or the need for improvement (discussed at para 2.9 above).
• The general purpose of the Order.
• The aims to increase transparency, consistency or quality in monitoring and to provide a "gold standard" system.
• The development of compliance with the requirements of OPCAT and the proposal to remove funding from the Scottish Prison Service (SPS).
• The proposals for consistent national recruitment, improved training and stronger support (including administrative and secretarial support) for independent monitoring.
• The independent review by Professor Coyle and / or its recommendations.
• The clarity in the draft Order.
• The change of name to an Independent Monitoring Service.

Perceived benefits of the changes overall

2.18 A further broad theme was the identification of perceived benefits of the proposed changes overall. Although fewer respondents commented on benefits than raised issues or concerns (which are discussed in detail below), several respondents expressed positive views of the effects of the changes.

2.19 At a general level, several respondents (although none of the VCs or individuals) expressed their overall support for the proposals. Where such general comments were made, these included, for example, that respondents welcomed the proposed changes, or endorsed the approach being taken by the Government. One local authority described the changes as being constructive and positive, while a criminal justice organisation stated that they were in broad agreement with the proposals.

2.20 Several of the respondents who expressed overall support expressed the specific view that they agreed with the oversight of monitoring becoming part of the role of HMCIPS. Comments included general agreement or welcoming the suggestions, as well as more specific comments such as for example, that: the overall link to the inspection process would be valuable; or that HMCIPS had the necessary skills and awareness, or would be the appropriate organisation for this.

2.21 Several respondents identified particular benefits of the proposals. Most (although not all) of these were again respondents who also expressed general support for the proposals. As such, they reflected the pattern identified previously and did not include comments from VCs or individuals.

2.22 Within those who expressed positive views and perceived benefits, however, some also raised specific issues or made additional suggestions about the structure or other aspects of the draft Order. These have been included in the relevant sections.

2.23 In terms of perceived benefits of the changes, those which were identified related to:

• The promotion of consistency.
• Compliance with OPCAT.
• The nature and effectiveness of the approach.

Consistency

2.24 Several respondents identified benefits of the proposals in terms of the promotion of consistency. It was argued, for example, that there would be greater coherence to reporting systems, and greater co-ordination of monitoring across Scotland. Related to this, it was suggested that the changes would enable a joined-up approach to the oversight of prisons.

2.25 One respondent suggested that the proposals would provide a common point of reference, and enable training and guidance to encourage consistency. One local authority respondent stated that the structure would enable the more consistent implementation of inspection recommendations.

OPCAT compliance

2.26 As noted previously, the lack of compliance with OPCAT was highlighted as being among the reasons for the perceived need for reform. The achievement of such compliance was also identified as being among the benefits of the proposals, as a result of the changes to the budgetary and administrative arrangements (which are currently dependent on the SPS [i.e. the organisation being monitored]).

The nature and effectiveness of the approach

2.27 Several respondents identified perceived benefits relating to the nature and effectiveness of the approach. For example, one local authority respondent stated that Monitors reporting to HMCIPS should ensure that performance and accountability are embedded in the new structure. It was also suggested that the changes would help to clarify processes.

2.28 One of the IMCOs stated that the new structure would enable the functions of inspection and monitoring to complement the work of each other, with a two-way information flow. It was also argued that it should ensure that the findings from the activity of Monitors would inform inspection programmes, leading to more effective scrutiny of prisons overall.

2.29 Linked to this, one local authority respondent stated that the progress of resolution of issues raised by Monitors could be more effectively followed, and included in any inspection reports. Another local authority respondent argued that, by enabling a more robust process of monitoring, HMCIPS would be better informed, alongside Scottish Ministers, regarding operational procedures and the findings of Monitors.

2.30 One respondent stated that the proposals provided a greater degree of independence from the SPS. Another suggested that the proposals offered an opportunity to modernise the process of prisoner visiting while appearing to retain the key objectives and benefits of the VC system.

2.31 One respondent stated that, as the monitoring body must stand under the umbrella of another organisation, the most appropriate would be HMCIPS.

Issues or concerns, and / or suggestions made

2.32 As noted in para 2.2, the main focus of respondents' comments overall was upon the identification of issues or concerns with the proposals, and / or the identification of suggestions for further consideration in taking forward the draft Order. This was reflected in the detailed comments.

2.33 While some respondents made general comments, many identified specific issues or concerns, or made particular suggestions. As noted at para 2.22, some of those who expressed their overall support for the proposals also identified issues and / or suggestions, as did some whose overall views could not be ascertained clearly. These are included in the following sections.

2.34 Several respondents made general comments indicating their overall disagreement, or expressing substantial concerns with the proposed changes. Such comments included, for example, expressions of general disappointment with the proposals, or views that the new format: would not be an improvement; would not achieve the aims; would not provide the best model for Scotland; or may not be workable.

2.35 Many of the more specific comments raised issues or concerns (and some expressed explicit disagreement) with the integration of monitoring and inspection functions and the proposed oversight by HMCIPS. Issues or concerns were also raised with the perceived impact of the structural proposals generally. Many respondents also raised issues or concerns about the proposed nature and roles of Monitors and, as noted, these will be detailed in Section 3. Additional issues or concerns were also raised about other aspects of the draft Order overall which are detailed in Section 4.

2.36 In relation to the proposed oversight of monitoring by HMCIPS, or the perceived impact of the structural proposals generally, the overall areas in which issues or concerns were identified, or in which suggestions were made (discussed in detail below), related to the following themes:

• The distinction between inspection and monitoring.
• The impact of the proposals upon the independence of Monitors and monitoring.
• Costs and the use of resources.
• The nature and effectiveness of the approach.

2.37 It is recognised, in presenting the findings relating to these issues, that it is inevitable that there are overlaps between most of the themes raised in the different sections of the report. This reflects the nature of the consultation and the material provided by respondents, and should be borne in mind.

The distinction between inspection and monitoring

2.38 Many respondents raised issues or concerns about a perceived lack of a clear distinction between inspection and monitoring in the proposals, and / or made suggestions about these issues.

Issues or concerns

2.39 In terms of the nature of issues or concerns, some respondents focused on the distinct and complementary nature of the two functions of inspection and monitoring, or expressed concern about the extent to which the distinction would remain the case under the proposals.

2.40 Many respondents (particularly, but not only, VCs, individuals and HROs) expressed concern that the distinctions may be blurred or unclear. Some questioned the assurance provided by the Scottish Government in the consultation paper (Chapter 2 para 2) that they were clear about the distinction between the functions of inspection and monitoring. Some made reference to issues raised in the Coyle report relating to the value of differentiating between the two, or the potential risks of a model that would sit under HMCIPS. There was also concern expressed about the perceived risks of an unclear distinction, and some respondents raised a specific concern that monitoring would become "ongoing inspection".

2.41 A few respondents provided particular examples of such concerns by making reference to:

• The proposed Explanatory Document (para 1-2), suggesting that the Monitors would "take instructions" from HMCIPS. It was argued that it was difficult to see how the functions would be managed separately.
• The proposed Explanatory Document (para 3-18), suggesting the opportunity to integrate scrutiny and monitoring. It was argued that HMCIPS did not have a responsibility for scrutiny; and that the opportunity to integrate contrasted with the philosophy that inspection and monitoring should be separate, but related.
• The draft Order Section 7A(4)(g) containing reference to the need for Prison Monitors to maintain records about matters "inspected" by them.
• The proposed representation of Scottish interests on the National Preventive Mechanism only by HMCIPS.
• The envisaged development of "inspection and monitoring standards".

2.42 Many respondents (most of which were VCs) expressed a concern that the proposals did not reflect the "layered" approach recommended by OPCAT. A few respondents argued that others had raised these concerns previously.

2.43 Additional issues or concerns raised relating to the distinction between inspection and monitoring functions focused on:

• Issues raised in a previous consultation in 2011 about the implications of integration, and a high level of opposition to this.
• Lack of experience of monitoring by HMCIPs and a potential lack of awareness of the distinction.
• Separation of inspection and monitoring in other UK jurisdictions.

Suggestions

2.44 A large number of respondents made specific suggestions about how to address the issues or concerns about the distinction between inspection and monitoring. These included:

• Separation of the structures for inspection and monitoring.
• Promotion of the independence of the two functions.
• Provision of greater clarity of the relationship between the two distinct functions and how they are considered and preserved.
• Replacing the requirement for Monitors to comply with instructions from HMCIPS with a requirement for them to co-operate instead.

2.45 Several VCs argued specifically that the role of HMCIPS should be rigorously detailed in the legislation, so that it fulfilled a support and administrative role in relation to monitoring, but was not permitted to influence the work and priorities of independent monitors or to "instruct" them. A few stated that their concerns would then be reduced, or that there would be potential for an "amicable" or "workable" solution. A few stated that this should be underpinned by the protocol recommended in the Coyle report.

2.46 One VC respondent suggested that, should responsibility for independent monitoring become part of the duties of HMCIPS, there should be a single paid member of staff responsible for managing prison monitoring, preferably collaborating with, rather than reporting to HMCIPS.

The impact of the proposals on the independence of Monitors and monitoring

2.47 A further issue which was raised as a concern by a large number of respondents, and on which suggestions were made was the perceived negative impact of the proposed changes on the independence of Monitors and monitoring.

Issues or concerns

2.48 Many respondents (including most of the VCs) expressed concerns that the proposals would lead to a general loss of independence. While some expressed general concerns, some provided further details of these issues.

2.49 For example, arguments included that:

• Overall, the proposed hierarchical structure and the erosion of the distinction between the functions of inspection and monitoring could compromise independence.
• The independence of the Prison and Lay Monitors may be compromised by the requirement that Prison Monitors take instruction (and be paid by) HMCIPS and Lay Monitors must comply with instructions from Prison Monitors.
• The capacity of one service to criticise another which was managed by the same individual would be questionable, raising the issue of what would happen if a prison which had had a very recent positive inspection was monitored and found to have issues.
• Prisoners did not see HMCIPS as totally independent, and the proposals would erode their confidence in raising complaints.
• Prison staff may have less trust in the Monitors, given the role of HMCIPS in inspecting their establishments, and this may threaten close working relationships.
• Prison Monitors may be seen as the "eyes and ears" of the Inspectorate.
• Public confidence in the system may be damaged, undermining the process of independent monitoring on behalf of the public and Government.

2.50 Some respondents raised specific concerns that the proposed title of the Monitors did not make reference to their being independent, or stated that the word "independent" was not included in the draft Order. A few respondents also made reference to others' expressed concerns about the potential for Monitors to be influenced by HMCIPS.

Suggestions

2.51 As noted above (para 2.12) many respondents stressed the general importance of independent monitoring.

2.52 The suggestions made at para 2.44 also link to this issue, and several respondents made additional suggestions about the way forward in relation to concerns about independence. These included:

• Overall maintenance of independence and objectivity.
• Protection of independence in legislation, and "future-proofing".
• Protection of prisoner confidence.
• Clarity of separation between the functions of inspection and monitoring (discussed above).

2.53 Many specific additional suggestions were made which were seen to be linked to the issue of independence. These related to particular aspects of the nature and roles of Monitors, and are presented in detail in Section 3, to avoid repetition.

Costs and use of resources

2.54 Many respondents raised issues or concerns, or made specific suggestions about costs or the use of resources.

Issues or concerns

2.55 The most common issue raised, or concern expressed, in terms of costs or use of resources (raised largely, but not only, by VCs) related to the proposals being more expensive than the current system. Some respondents, for example, provided details of the estimated cost or the current annual cost of VCs, while some made specific reference to the new system appearing to cost around four times that of the present system (while relying on unpaid volunteers to carry out most of the work). Links were also made between the increased costs and the proposal to have paid Monitors, as well as the expansion of the role of HMCIPS.

2.56 A few VCs stated that it was unclear whether the estimated costs would include other expenses such as travel and overnight accommodation, office accommodation, support staff, training, and administrative costs. One VC stated that there was no evidence of any funding being laid aside for recruitment, training, support or evaluation. One local authority respondent argued that the financial assumptions underpinning the proposals were unclear, including the level of payment being proposed for the Prison Monitors.

2.57 A few VCs made specific reference to a perceived lack of value for money. One, for example, stated that the majority of expenditure would be directed to the salaries and expenses of a small number of possibly part-time staff. One of the individual respondents specifically questioned the concept of improved economy in para 3-30 of the proposed Explanatory Document.

Suggestions

2.58 Many respondents made specific suggestions about costs and use of resources. The most common suggestion was to use the resources available (e.g. for the use of paid Monitors) for other purposes. Suggestions included to use the resources for:

• Upgrading the existing system.
• Improving recruitment.
• Improving training.
• Co-ordination and liaison with the SPS.
• Evaluation.
• Support to a body similar to the AVC.
• Administration and support (e.g. for meetings, reporting and annual reporting).

2.59 In relation to administration and support, one criminal justice organisation suggested the use of resources to employ one or two members of staff to co-ordinate and support the work of Lay Monitors, rather than direct them. They suggested that the mechanism recently put in place to oversee the work of independent custody visitors could provide a useful model.

2.60 Other suggestions relating to costs and the use of resources included to:

• Clarify whether the estimated cost of the new system is the total cost per annum.
• Ensure that the new structure is properly funded and resourced, with the provision of extra resource to HMCIPS to carry out the oversight function.
• Consider value for money in considering efficiency (e.g. including ensuring that any increased expenditure is specific, justified and contributes directly to improved outcomes for offenders and the prison estate, as well as better informing HMCIPS and Scottish Ministers).

The nature and effectiveness of the approach

2.61 Many respondents raised issues or concerns about the impact of the proposals on the overall nature and effectiveness of the approach. Many also made suggestions (again linked to some highlighted at other points in the report).

Issues or concerns

2.62 Several respondents argued that the proposed structure would be complex and hierarchical (e.g. with three layers) or stated that it would be "top-down" or involve a "command and control" system. A few respondents stated that the structure would involve "micro-management" by HMCIPS. One of the individual respondents argued that effective monitoring would depend on the efforts of a large number of lay monitors, making the proposed structure inappropriate. A few respondents stated that the language used was also negative and hierarchical. It was further suggested that the complexity of the structure could, in turn, lead to confusion.

2.63 Additional issues or concerns raised about the nature and effectiveness of the approach included views that there would be:

• Less robust arrangements, with less rigorous scrutiny and a less exacting approach (e.g. in the absence of some existing safeguarding requirements in the draft Order).
• Less statutory protection for the system or the role of Lay Monitors.
• A potential negative impact on the simplicity and speed of complaints handling.
• A lack of clarity of monitoring and reporting arrangements.
• A lack of links between Monitors and local communities, and the end of direct engagement by local government with prisons.

2.64 A few respondents argued that the structure would not lead to improved efficiency, or that it would reduce effectiveness (e.g. due to the complexity of the system; the lack of specification of clarity of roles; and the increased area of responsibility of HMCIPS).

2.65 A small number of respondents made specific reference to para 1-6 of the proposed Explanatory Document (which stated that the overarching purpose of the Order was to improve the efficiency of public functions in the inspection and monitoring of prisons in Scotland) and disagreed that this would be the outcome. One respondent stated that there was no proof for the assertion in para 3-19 of the proposed Explanatory Document about the HMCIPS responsibility providing the best potential for "impact".

Suggestions

2.66 Some of the suggestions to address these issues have been mentioned previously in relation to the distinction between functions, the need for independence and the cost or use of resources. Additional suggestions included:

• Provision of an overall environment in which volunteers are supported and nurtured (rather than their having no opportunities to influence the process or support each other).
• Provision of certainty in statute or guidance that Monitors will establish and maintain close community relations.
• Recognition of Community Planning and local government boundaries.

2.67 As with the other broad issues discussed in this section, however, many of the suggestions related to detailed aspects of the nature and roles of Monitors, or other aspects of the draft Order, and these are discussed fully in the following sections of the report.