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

Section 4: Other Aspects of the Draft Order and Related Issues

4.1 This section presents the findings on other aspects of the draft Order and related issues.

Summary of Section 4

Issues or concerns on other aspects of the draft Order included comments on the Order overall (e.g. that it did not reflect fully the recommendations of the Coyle review, as well as some general criticisms and comments on the overall level of detail).

Several respondents raised issues or concerns relating to the potential for amendment of the system without reference to the Scottish Parliament or the public.

Several respondents made comments on the establishment of an Advisory Board or Group (including that this had been omitted from the draft Order).

Comments were also made which related broadly to access issues, including concerns about access to space and / or access to documents.

A few additional issues or concerns were raised and / or suggestions made about rights and protection (for prisoners and Monitors) and the level of scrutiny and accountability in the system.

A small number of VC respondents argued specifically that they did not believe that the tests in the Public Services Reform Act had been met. Some specific comments were also made on aspects of the Explanatory Note and proposed Explanatory Document.

A further broad theme was the identification of additional requirements for the proposals or their implementation. Suggestions related to: the roles of other stakeholders; funding; guidance and standards; transition; and the wider context.

Comments were also made on the consultation itself. These focused on: the nature of the respondent and / or their response; and views of the consultation process.

Overall additional issues raised

4.2 In terms of comments on other aspects of the draft Order and related issues, the overall themes included:

• Other aspects of the draft Order and proposed Explanatory Document.
• Additional requirements for the proposals or their implementation.
• The consultation itself.

4.3 As with the previous sections, there are overlaps between some of these issues and those already detailed pertaining to the general proposed structure (Section 2) and the nature and roles of the Monitors (Section 3). Detailed issues raised previously will not be reiterated in this section, but additional points will be presented below.

Other aspects of the draft Order and proposed Explanatory Document

4.4 Additional comments were made about other aspects of the draft Order and proposed Explanatory Document in a number of areas. Many respondents, for example, provided their overall views of the Order as a whole. Other themes related to: the potential for amendment of the system; an Advisory Board; access issues; rights, protection, scrutiny and accountability; pre-conditions of reform and improving the exercise of public functions; and aspects of the content of the Explanatory Note and proposed Explanatory Document.

Overall views of the draft Order

4.5 Many respondents made additional comments relating to overall views of the draft Order, including most of the VC and individual respondents, and a small number of others. As with other themes, these tended to focus on issues or concerns and / or suggestions.

Issues or concerns raised

4.6 The most common additional issue or concern raised in relation to the Order overall was that the proposals were not seen to reflect fully the recommendations of the Coyle review (with some stating, for example, that only a few of the recommendations were contained in the proposals). A large number of VCs (and some other respondents) expressed this view, and a few argued that the Scottish Government had returned to a previous position. Some also stated that, had these recommendations been implemented, this would have provided assurance of a high standard of monitoring, and compliance with OPCAT.

4.7 Several VCs expressed the view that the draft Order was seen to be a "missed opportunity" to implement a "gold standard" independent monitoring system that would have the support of stakeholders. Some respondents also argued that the proposed system had attracted considerable criticism, or expressed additional negative views about the Order overall.

4.8 Several respondents made comments about the overall lack of detail contained in the draft Order (sometimes relating this to some of the requirements of the existing legislation which were not detailed in the draft Order). Some expressed specific concerns about the impact of the perceived lack of detail (e.g. on transparency and on potential changes to the system).

Suggestions

4.9 Some additional suggestions were also made relating to the Order overall. These included:

• Reconsideration / implementation of the recommendations in the Coyle report.
• Changing the oversight and administration of VCs to ensure they meet the OPCAT obligations.
• Introduction of direct funding from the Scottish Government to VCs or changing the management of the funding.
• Consideration of the model of support arrangements for Independent Custody Visitors for Police Cells.
• Specification of more detail generally (and in the areas highlighted earlier in the report) and removal of ambiguity about roles, duties and practice.
• Clear written commitments in the legislation to the stipulations in Section 17 of the Prison Rules, and clear details of the administration of the new system and the management of independent monitoring.

Amendment of the system

4.10 Several respondents (particularly VCs and one of the HROs) raised issues or concerns relating to the potential for amendment of the system.

Issues or concerns raised

4.11 Respondents who commented on the potential for amendment expressed concerns that a perceived lack of detail in the draft Order, and the provision of the detail of the roles and responsibilities of Lay Monitors in a "guideline" overseen by HMCIPS, raised potential for significant changes to be made to the system without reference to the Scottish Parliament or the public.

4.12 One of the HROs stated that the independence of the new structure would be undermined if the executive Government had the legal authority to alter its mandate, composition and powers, or to dissolve or replace it at will.

4.13 One of the VCs also stated that they were concerned that the management and functions of the new system would be open to interpretation by HMCIPS.

Suggestions

4.14 Specific suggestions included:

• More detailed specification in the primary legislation (as noted above).
• Encompassing the key elements set out by the OPCAT in the legislation establishing the new structure (including the mandate and powers, as well as other issues detailed elsewhere).
• Ensuring that the new arrangements are "future-proofed and person-proofed" so that they cannot be adjusted without significant consideration.

Advisory Board

4.15 Several respondents made comments relating to an Advisory Board or Group.

Issues or concerns

4.16 Several respondents raised issues or concerns about an Advisory Board or Group. Among these, some stated that the establishment of an Advisory Board had been omitted from the draft Order (although one suggested that they had previously been advised that this would be the case). One stated that there was no detail of the membership and function of an advisory committee.

4.17 One of the IMCOs stated that the existence of a properly constituted Advisory Group would ensure the independence of the monitoring process and provide essential advice to HMCIPS from an expert perspective, informed by relevant experience and knowledge. One of the VC respondents raised the question of who would be responsible for appointments and training in the absence of establishment of an Advisory Board or Group.

4.18 A few VC respondents stated that the Lay Monitors were to have no communication or dialogue with an Advisory Group (whilst also noting that it was not mentioned in the Order).

4.19 One VC respondent questioned why, if the necessary procedures were put in place, there would be a requirement for an Advisory Group, expressing a concern that the influence of a non-statutory Advisory Group may compromise the independence of Prison Monitors.

Suggestions

4.20 Several respondents made suggestions relating to an Advisory Board or Group. These included:

• Clarity about whether an Advisory Board or Group would be established.
• Inclusion of a requirement to establish such a Board or Group.
• Specification in the legislation of the terms of reference, role and remit of this.
• Provision in the legislation for an open and transparent appointment process for members of the Board or Group.
• Inclusion of direct representation from active Lay Monitors within the membership.

Access issues

4.21 Some comments were also made which could be seen to relate broadly to access issues.

Issues or concerns raised

4.22 A few VC respondents and one of the local authority respondents raised issues or concerns about access to space and / or access to documents. These link to other points made elsewhere.

4.23 In terms of access to space, a few respondents stated that the proposed legislation did not contain a duty for the prison Governor to provide a confidential setting for lay members to hear complaints and deal with requests from prisoners. One of the VCs expressed the specific view that this could dilute activity in this area, while others stated that dealing with request and complaints was central to their work

4.24 A few VCs also expressed concerns about the discretion of Governors to withhold documents from Lay Monitors if, in their opinion, disclosure would have implications for the security of the prison.

4.25 A small number of VCs raised a specific issue relating to the amendment to Section 120(3) (b) of the Prison Rules 2011 stating that it omitted the words "requests or". They argued that this would mean that prison Governors would no longer be required to arrange for a request to be passed to the monitoring body and suggested that this appeared to be a drafting error.

Suggestions

4.26 A few respondents made additional specific suggestions relating to access issues, and these included:

• Specification of the requirement for the Governor to provide a confidential setting for Lay Monitors to deal with complaints and requests from prisoners, or of the right for Lay Monitors to have confidential space when discussing issues with prisoners or staff.
• Specification of the provision of appropriate accommodation and other facilities for Monitors.
• Removal of the clause relating to prison Governors' discretion to withhold documents.
• Clarity in the legislation of unfettered access to the prison (or all areas of the prison) for Lay Monitors.
• Remedying a perceived drafting error relating to the amendment to Section 120(3)(b) of the Prison Rules 2011.

Rights, protection, scrutiny and accountability

4.27 Some of the comments relating to rights and protection and the level of scrutiny and accountability in the system have been raised at previous points in the report. While these will not be reiterated here, a few additional issues were raised and / or suggestions made, which are detailed below.

Issues or concerns raised

4.28 A number of respondents stressed the general importance of prisoners' rights, or the importance of specific issues such as safeguards, and access to a clear complaints process.

4.29 One of the HROs argued specifically that there was a lack of reference in the draft Order to OPCAT or to other relevant human rights standards required to establish an effective system that prevents human rights violations in the prison system. The respondent provided detailed information about OPCAT in their response.

4.30 One of the HROs also argued that the proposed Order made no reference to provision to members of the new structure of those privileges and immunities as were necessary for the independent exercise of their functions (e.g. immunity from personal arrest or detention, and from seizure or surveillance of papers and documents; non-interference with communications; and protection from legal action in respect of words spoken or written, or acts carried out in the course of the performance of their duties).

4.31 One of the IMCOs stated that any new duties on bodies would raise the question of what people would do if they were unhappy with the way they were carried out.

4.32 A further respondent raised a specific issue with Section 7B (5)(c) of the draft Order. They stated that, subject to the exceptions in (i) and (ii), this would grant complete discretion on a matter of disclosure sought by a Lay Monitor to the Governor, without affording any right of review to either a Prison Monitor or HMCIP. This also links to issues raised previously in relation to access.

4.33 Some additional comments were made relating to overall accountability and the opportunity for public scrutiny. For example, one of the VCs stated that there was no evidence of open and transparent reporting, accessible to the public, relating to each prison. They argued that the draft Order proposed new legislation which would remove the opportunity available currently for a high level of public scrutiny, replacing this with a short section in the annual report of HMCIPS, which they argued would be based on paid staff providing "ad hoc reporting".

Suggestions

4.34 A few respondents of different types made additional suggestions relating to rights, protection, scrutiny and accountability. In addition to suggestions detailed earlier about specific issues, these included:

• Ensuring respect for human rights is at the core of prison monitoring.
• Explicit articulation of human rights and OPCAT in the legislation.
• Consideration of other relevant human rights standards in developing legislation in this area (with a number of examples given).
• Provision of privileges and immunities necessary to members of the new structure, and protection of confidential information collected.
• Provision of at least the same opportunity for scrutiny by the Scottish Parliament, Justice Department, public, prisoners and prison staff in the new legislation as in the old.
• Clarity of roles and the process for complaints about Monitors.
• Provision of a right of review either to Prison Monitors by extending their authority under section 7A (4), or to HMCIPS.
• Specification in the legislation of public reporting and audit procedures, and independence from executive control.

Pre-conditions of reform and improving the exercise of public functions

4.35 Some specific comments were also made on the pre-conditions for reform and improving the exercise of public functions. A small number of VC respondents argued specifically that they did not believe the tests in the Public Services Reform Act (which, they stated, required a number of pre-conditions to be met before existing bodies could be abolished) had been met.

4.36 These respondents provided specific details of their concerns in relation to different aspects of this. For example, in relation to Section 16(2)(a) that "the provision is proportionate to the policy objective" a small number of respondents made reference to para 3-22 of the proposed Explanatory Document or the perceived justification for the legislation in terms of the need for OPCAT compliance. They argued that the relevant issues could have been achieved without legislation (a point made by a number of other respondents, although not necessarily specifically linked by them to the pre-conditions).

4.37 In relation to Section 16(2)(b) that "the provision does not remove any necessary protection", a few respondents made reference to para 3-23 of the proposed Explanatory Document, and argued that, in their view, the necessary protection was being removed. As noted, concerns were raised previously about the perceived lack of specification of some protections in the proposals.

4.38 In relation to Section 16(2)(d) "conferred functions consistent with the general objects or purpose of a person whose functions have been abolished" a few respondents made reference to para 3-26 of the proposed Explanatory Document, arguing that it was not the case that all of the functions of VCs were being replicated.

4.39 In relation to Section 27(1)(c)(ii) "improving the exercise of public functions", a few respondents made specific reference to paras 3.30 -3.37 of the proposed Explanatory Document and to the suggestion that the legislation would improve the exercise of public functions having regard to efficiency, effectiveness and economy. As noted in Section 2, a few argued that this was not the case (e.g. making reference to issues discussed previously relating to aspects of the structure, roles and costs and raising specific issues with some of the assertions in these paragraphs).

Explanatory Note and proposed Explanatory Document

4.40 Some respondents made specific reference to aspects of the Explanatory Note and the proposed Explanatory Document. Where these have not already been included at various relevant points in the text, they are discussed below.

4.41 One of the VCs, for example, expressed a general concern about a lack of clarity in the Explanatory Note, and a few respondents suggested that the proposed Explanatory Document was misleading in some areas.

4.42 One VC commented that the Explanatory Note and consultation correspondence recognised some perceived omissions in the draft Order, and used different language. They stated, however, that it would be the legislation coming from the draft Order which would provide for the quality and integrity of future independent prison monitoring.

4.43 Additional comments on the proposed Explanatory Document included that:

• In relation to para 1-10, it was argued that, while this suggested that Professor Coyle had proposed the abolition of VCs, he had actually been asked to review the Justice Minister's proposals.
• In relation to para 1-11, it was argued that, while this noted that the current system was not OPCAT compliant, it did not give the reason for this in terms of their funding being managed by the SPS. References to compliance in paras 2-12 and 3-22 were also highlighted.
• In relation to paras 2-14 to 2-16, it was argued that, while these paragraphs referred to the 2011 consultation, there was no reference to the outcome, or there was a lack of prominence given to the consultation. (As noted already, some respondents also provided details of the historical background.)
• In relation to para 3-26, it was argued that there may be inaccuracies within the cross-referencing.

Additional requirements for the proposals or their implementation

4.44 Many respondents identified additional related requirements which they considered important to the proposals or their implementation. These related to:

• The roles of other stakeholders.
• Funding.
• Guidance and standards.
• Transition.
• The wider context.

Roles of other stakeholders

4.45 Several respondents made additional comments or suggestions relating to the roles of other stakeholders. For example, one respondent stated that, in addition to the requirement for robust scrutiny of prison conditions by Prison and Lay Monitors, there must remain a role for solicitors in this field. The same respondent noted that the proposed role for Monitors in the investigation of prisoners' complaints, while welcome and necessary, could not be allowed to override in any way the prisoner's right to independent legal advice, in particular where it was alleged that there had been a breach of Articles 3, 5, 8, 9 or 14 of the European Convention on Human Rights (ECHR).

4.46 Additional comments were also made in relation to the role of the SPSO, and one respondent provided detailed background information about this. Another respondent argued that the role of the SPSO seemed to be relatively little known to prisoners. The same respondent stated that it was not clear whether, and if so how, the roles of the SPSO and Monitors would dovetail (reflecting a concern raised previously). They argued that there should be specific clarification of the roles. A further specific suggestion in relation to the role of the SPSO was that clarity should be provided about whether the SPSO would have jurisdiction to review complaints about the Prison and Lay Monitors.

4.47 One criminal justice organisation respondent stated that it was important to hear the voices of those held in prison as well as the independent observations of Monitors. They suggested the co-option (over a period, or for an individual monitoring visit), of a prisoner monitor who, they suggested, would help the process of communication with the prison population.

4.48 Another criminal justice organisation respondent argued that Monitors would encounter prisoner concerns relating to community issues such as housing, health and education. They stated that this would place the Monitors in a position of reflecting on issues occurring within the prison, but delivered and inspected by other bodies. It was suggested that the Order or guidance should make clear the interface between Monitors and these other operating bodies within the prison (i.e. the bodies responsible for delivery of these services and their scrutiny bodies).

4.49 One criminal justice organisation respondent stated that they would welcome some statutory requirement for the formal involvement of the Scottish Human Rights Commission (SHRC) with the process. They argued that the organisation's expertise should not be ignored and that the monitoring function should be aware of new developments in human rights, as well as being active leaders in this field.

4.50 One local authority respondent argued that consideration should be given to whether prisoners could benefit from an advocacy service if the new system of Monitors was unable to assist them as VC members currently could.

4.51 A few respondents argued that a national "council" (.e.g. with functions similar to the AVC) should be created for Lay Monitors. One respondent made specific reference to the implementation of Recommendation 15 of the Coyle report, relating to provision for a Council of Independent Prison Monitors to include one monitor from each prison, and for this Council to agree protocols for particular issues.

Funding

4.52 Comments on costs, resources and funding issues have been noted previously, and one respondent added that the legislation should specify the source and nature of funding. They also argued that the Order should provide funding at a level which would enable all Monitors to carry out their statutory role.

Guidance and standards

4.53 A few respondents made comments on guidance. One, for example, stated that new legislation should lay out clearly the preparation of a Guide to Monitoring for both Prison and Lay Monitors. A few other respondents made reference to the existence of current guidance and a code of conduct for VC members.

4.54 Some respondents commented on standards. A few expressed the view that the proposals would not provide a "gold standard". One stated that, while there was an expectation that inspection and monitoring standards would be produced, these would not address their concerns with the structural arrangements. Another stated that the proposals did not provide a foundation for "gold standard" evaluation and that this should include not only the evaluation of individuals, but also of teams. A further respondent argued specifically that there should be further clarity on standards issues (e.g. the standard to be expected in relation to the working of Monitors). One VC also stated that some of the requirements may need to be supported by paid staff (who, in their view, should not be involved in day to day monitoring) to deliver on them.

Transition

4.55 A small number of respondents stated that there would be a need for a transitional period for the changeover to a new system. One criminal justice organisation expressed the view that the way the transitions were managed would be as important as the establishment of the new monitoring arrangements. The respondent stated that they hoped the experience and expertise of the existing VCs and visitors would benefit the new systems as they evolved.

The wider context

4.56 A few comments were also made about the wider context. For example, one respondent argued that a local solution should be considered for the most remote areas of the Highlands and Islands. They argued that, due to the length of time a "legalised custody" was held in Legalised Police establishments, there would be no opportunity for Legalised Prisoners to be interviewed within these remote areas under the new monitoring arrangements. They also stated that there was a great cost in time, travel and accommodation for custody visitors attending the island areas in particular.

4.57 One criminal justice organisation respondent argued that the Order should place a statutory duty on prisons to highlight the work of the Monitors. Another argued that effective communication to prisoners and prison staff would be important in the roll-out across prisons of the role of Prison Monitors.

4.58 One respondent stated that the SPS, with some forward planning, would be able to adapt current systems and processes to suit the needs of HMCIPS in the oversight of Prison Monitors and Lay Monitors.

4.59 One of the VC respondents stated that the reform of VCs must not be seen as distinct from broader reform of criminal justice services and the ongoing development and enhancement of community planning.

4.60 One of the HROs made suggestions relating to the importance of reporting by the NPM. It was also argued that the NPM, its members and staff should be required to regularly review their working methods and undertake training, including human rights training, in order to enhance their ability to exercise their responsibilities under the OPCAT.

4.61 One local authority respondent suggested that the Government should seek to review how the new system works in practice within a reasonable period following implementation.

4.62 A few respondents made comments about the need to take account of the comments made in the consultation in the further development of the draft Order.

The consultation itself

4.63 Comments on the consultation itself focused on themes such as: the nature of the respondent and / or their response; and views of the process.

Respondent and response

4.64 Several respondents provided additional information in their response about issues such as: the nature of their organisation; their aims; funding; and / or their work. Some made specific reference to their role and expertise, or the relevance of this to the issues under consideration.

4.65 Several respondents provided information about the nature of their response. This covered issues such as, for example:

• The background material considered.
• How the response was developed.
• Whose views were represented in the response.
• The focus of the response.

4.66 A small number of respondents expressed their agreement with the material in another respondent's submission.

The consultation process

4.67 Some additional comments were made on particular aspects of the consultation process. As noted, for example, some respondents provided details of the historical background to the current situation or commented on their involvement in this. Some were critical of the nature of the process of change, and / or the time taken. One VC stated that they did not find the consultation material "user-friendly".

4.68 One respondent expressed the view that, while they understood the need to seek the views of the SPS, it would not be appropriate for the SPS to have a role in determining the level of scrutiny it was subjected to by independent monitors.

4.69 Several respondents welcomed having had the opportunity to comment on the draft Order.