Further Consultation on the Draft Public Services Reform (Inspection and Monitoring of Prisons) (Formerly Prison Visiting Committees) (Scotland) Order 2014 - Analysis of Written Responses

Section 3: Other Changes to Processes and Provisions

3.1 This section presents the findings relating to other proposed changes to processes and provisions under the revised draft Order (Questions 5-9).

Summary of Section 3

At Question 5, there was a high level of support for a duty on the prison Governor to ensure the provision of assistance to the Chief Inspector, IPMs and PMCs. All of those who expressed a view answered "yes", while none answered "no". The most common comments were positive (e.g. the importance and benefits of a cooperative approach). Issues or concerns included potential variation in cooperation; a lack of detail; and a lack of sanctions for non-compliance.

At Question 6, the highest number of respondents (13, or 45%) answered "no", and did not consider that the provisions detailed would provide the basis for a clearer and more consistent complaint-handling process for prisoners. A lower number (8, or 28%) answered "yes". Almost all VCs, half of the individuals and one local authority did not support the proposals. The most common comments were issues or concerns (e.g. removal of the statutory duty on VCs to hear and investigate complaints; lack of justification for change; weakening of the system; difficulties with the SPS complaints system; benefits of the current VC role; and a negative impact of the proposals). Some positive comments were made about the IPM role and perceived benefits of the provisions in relation to clarity and consistency.

At Question 7, the highest number of respondents (13, or 45%) answered "no" and did not support the inclusion of provisions relating to the establishment and composition of a PMAG. A slightly lower number (10, or 34%) answered "yes". Almost all VCs and individuals answered "no". The most common comments raised issues or concerns about composition and functioning of the group (e.g. lack of independence or ability to challenge). Positive comments were also made on the benefits (e.g. promoting consistency; effectiveness of roles; and responsiveness).

At Question 8, there was a high level of support for the inclusion of an explanation of the purpose of inspection and monitoring in pursuance of the objective of OPCAT, and a section outlining Scottish Ministers' duties in relation to SPT visits. All of those who expressed a view answered "yes", and none answered "no". The most common comments related to positive views or benefits (e.g. ensuring these issues were not overlooked; identifying responsibilities; and making links to other legislation). Issues and concerns related to a potential lack of impact on protection of human rights; and whether the system would address all OPCAT requirements.

At Question 9, there was a high level of support for the inclusion of a transitional period of three months. All of those who expressed a view answered "yes", while none answered "no". Most made positive comments or identified benefits (e.g. in allowing completion of current work and a more seamless transition). Some issues or concerns were also raised (e.g. a perceived inconsistency between the focus on annual reports in the transitional period, and lack of their inclusion in the new system; the timescale for the new system; and demands on volunteers.)

Question 5 Duty on a prison Governor to ensure assistance

3.2 Question 5 asked:

"Do you welcome the inclusion of a provision that places a duty on the prison governor to ensure that the Chief Inspector, IPMs and PMCs are provided with such assistance as is necessary to allow them to exercise their statutory functions? Please give reasons for your answer."

Overall pattern of views

3.3 Most of the respondents (83%) responded to the quantitative part of Question 5, and there was a high level of support for the inclusion of a duty on the Governor to ensure the provision of assistance to the Chief Inspector, IPMs and PMCs, as described above. All of those who expressed a view answered "yes", while none answered "no". Five respondents did not express a specific "yes" or "no" view.

3.4 By type, all of the VC; local authority; individual; professional or representative; and health and well-being organisation respondents expressed agreement. A small number of criminal justice; inspection, monitoring or complaints; and human rights organisations did not express a specific view, but those who did expressed agreement. The pattern of quantitative views is summarised in the table below.

Table 6. Welcome inclusion of duty on Governor to ensure assistance?

	Number	%
Ticked or stated "yes"	24	83
Ticked or stated "no"	0	0
Did not express a "yes" or "no" view	5	17
Total	29

3.5 Most respondents made additional comments relating to Question 5. Only five respondents did not address this question in some way.

3.6 The most common additional theme was the expression of positive comments or benefits of the inclusion of a duty on the Governor to ensure the provision of assistance. A smaller number of respondents raised issues or concerns, and some identified additional suggestions or requirements.

Positive comments or benefits

3.7 Most respondents made positive comments or identified benefits of this provision. These included some who stated that they welcomed or supported this inclusion (although a few VCs qualified their support, and the issues raised are discussed below). One local authority identified the inclusion of this provision as being a result of the previous consultation.

3.8 Several respondents stressed the perceived need for, and importance of the inclusion of a duty on the Governor to ensure assistance. A few VC respondents provided examples of positive co-operation from the Governors in their own establishments. One individual respondent stated that they believed that the scheme could come to a halt without the support and assistance of the Governor and the SPS. One of the criminal justice organisations expressed the view that a collaborative approach was essential, and an IMCO stated that it was incumbent on Governors to develop co-operative relationships with IPMs and PMCs.

3.9 Some of the specific perceived reasons for the need for this, or potential benefits of such an approach, were seen to include to:

• Enable Governors to recognise the opportunity to support the aspiration of "flourishing prisons" as identified by the SPS Organisational Review.
• Ensure that Governors, as leaders in the justice system and subject to external scrutiny, recognise their part in the process, and the legislative authority of the IPMs and PMCs.
• Ensure that Governors recognise the alignment of this domestic legislation with national and international law.
• Allow IPMs and PMCs to undertake their roles and statutory functions efficiently.
• Develop a more consistent and independent monitoring arrangement across the whole of the prison estate.
• Ensure universal co-operation from Governors.

Issues or concerns

3.10 A small number of issues or concerns were identified. The most common concern was that the provision of assistance would be dependent on a Governor's co-operation, and that this could vary and was not always forthcoming. A few respondents cited difficulties experienced by some VCs (e.g. the lack of provision of basic office facilities).

3.11 Related to these concerns, it was argued that the phrase "such assistance as is necessary" was too subjective and the nature of the assistance was unspecified. One professional or representative organisation respondent also stated that there was no further detail of how the proposal would work in practice.

3.12 A few VCs and one of the individual respondents expressed concern about the ability of the provision to effect change where a Governor was intent on non-co-operation, or refused to act on concerns raised by IPMs. They also argued that there was no sanction to be applied in the event of non-compliance with the duty by a Governor.

Suggestions or requirements

3.13 A small number of additional suggestions were made.

3.14 A few respondents suggested a need for greater clarity and specification, and that more details of the proposal and requirements should be provided. It was also argued that this would help to ensure consistency. One VC also argued that the requirement must be enforced in the Order.

3.15 One additional suggestion by a VC respondent was that they would be happier to see some commitment by prison staff generally to supporting quality monitoring, and for them to see its value to themselves and to prisoners.

Question 6 Complaint handling

3.16 Question 6 asked:

"The draft Order contains provisions for IPMs to support prisoners in raising a complaint through the existing complaints process while retaining a discretion for them to resolve personally any particular matter which it is assessed cannot be dealt with through this route. Do you consider that this provides the basis for a clearer and more consistent complaint-handling process for prisoners? Please give reasons for your answer."

Overall pattern of views

3.17 Just under three quarters of respondents (72%) responded to the quantitative part of Question 6. Views were mixed, but the highest number of respondents (13, or 45%) answered "no" and did not consider that the provisions detailed would provide the basis for a clearer and more consistent complaint-handling process for prisoners. A lower number (8, or 28%) answered "yes", while just over a quarter of respondents (8, or 28%) did not express a specific "yes" or "no" view (although five of these made additional comments relevant to Question 6).

3.18 There were differences by type of respondent, and those who did not support the proposals comprised almost all of the VCs, along with half of the individual respondents and one local authority. By contrast, only one VC answered "yes" in support of the clarifications, along with the remaining local authorities and small numbers of respondents of most other types. The pattern of quantitative views is summarised in the table below.

Table 7. Provision of the basis for a clearer and more consistent complaint-handling process?

	Number	%
Ticked or stated "yes"	8	28
Ticked or stated "no"	13	45
Did not express a "yes" or "no" view	8	28
Total	29

3.19 Most of the respondents made additional comments relating to Question 6 (including five who did not address the quantitative part of the question). Only three respondents did not address this question in some way.

3.20 The most common theme for additional comments at Question 6 was the identification of issues or concerns with the provisions (generally, but not only by those who answered "no" at the quantitative question). Suggestions or requirements were also common from respondents with differing overall views. A number of respondents also made positive comments (most, although not all, of whom answered "yes" at the quantitative question).

Positive comments or benefits

3.21 Positive comments or perceived benefits in relation to the provisions outlined in Question 6 included expressions of general agreement or support for the proposal. Some described the nature of the proposed role for IPMs, or commented on the importance of IPMs hearing prisoners' requests or complaints, and assisting them as appropriate.

3.22 Two respondents highlighted that the provision of such assistance was an important support and advocacy role (e.g. with the levels of learning disability and literacy problems across the prison population; and given prisoners' vulnerability). One respondent stated that an IPM would have unfettered access to the prison, and that a prisoner could request to speak with any IPM at any time, which they considered to be a welcome and balanced approach.

3.23 It was argued that the proposed provisions would:

• Clarify the IPM's role and responsibility in the complaints process.
• Reduce the potential for overlapping roles and processes.
• Provide the basis for a more consistent complaint-handling process for prisoners.
• Strengthen the ability of IPMs to help prisoners.
• Not prevent IPMs acting swiftly and informally in urgent situations.

3.24 One IMCO respondent stated that they were pleased that it had been clarified that the IPMs would not replicate the role of the Scottish Public Services Ombudsman (SPSO) in investigating complaints. The same respondent stated that, in the provisions of the revised draft Order, the SPSO would not be able to take complaints about IPMs. The respondent argued that, given that the IPMs would have a role in assisting prisoners to complain, this was considered appropriate.

3.25 A few respondents, however, qualified their positive comments, and the issues raised are discussed below, along with other issues or concerns and suggestions.

Issues or concerns

3.26 Issues or concerns identified focused on a number of themes. Some related to the nature of the proposal overall. For example, a few VCs stated that this was, for them, one of the most worrying aspects of the latest proposals. A few respondents argued that the presentation of the proposal was misleading, and concerns were expressed that the existing statutory duty on VCs to hear and investigate complaints would not be retained for the IPMs, and that they would be expected to direct prisoners to the SPS system.

3.27 It was also argued that the IPMs would have limited discretion, and it was argued that it would be almost impossible for them to follow up on progress of individual SPS complaints without a high level of information and co-operation from Governors. A few VCs also expressed the view that, although it was stated that IPMs would be able to investigate urgent matters, or where the SPS system would not work, this meant little without a system of confidential requests to the IPM and some statutory protection.

3.28 Some VC respondents and one of the individual respondents questioned the justification for change. They argued, for example, that there was no existing confusion about the means by which prisoners could raise a complaint. Some of the VCs also took issue with the suggestion that VCs did not, in practice, presently investigate complaints but instead assisted prisoners to use the SPS complaints process. They argued that this was not the case.

3.29 Concerns were also expressed that the provision would be less robust than current arrangements. One criminal justice organisation respondent, for example, stated that the provision for independent Monitors to handle prisoner complaints had been substantially weakened, with the only reference to this in the revised draft Order being at 7D(3). They suggested that the inference was that IPMs should assist prisoners to lodge complaints via the SPS internal complaints system provided for under the Prison Rules. Similarly, one human rights organisation respondent stated that the proposal that the independent Monitors provide assistance in relation to the existing internal complaints process was a significant weakening of the role. A few VCs made reference to concerns relating to the complaints system having been raised in previous consultations.

3.30 A further common theme for issues or concerns related to perceived difficulties with the SPS complaints system. These were seen to include concerns about:

• A lack of trust or confidence in the system by prisoners.
• Fear of retribution or recrimination.
• Lack of effectiveness.
• Lack of action.
• Lack of confidentiality.
• The prevalence of literacy problems, and difficulties for prisoners experiencing these issues in using a paper-based system.
• Inability to provide a quick resolution to some issues.
• Potential lack of knowledge among prisoners of the provisions for IPMs to support them through the process.

3.31 Some respondents made specific comments on the role of the SPSO. One of the criminal justice organisations, for example, provided details of the circumstances in which prisoners could seek recourse to independent adjudication in this way (i.e. where complaints had been through the formal complaints procedure of the organisation concerned). A few other respondents stated that the SPSO could only rule on failure of the process by the SPS in dealing with a complaint, and not the outcome of the complaint.

3.32 These concerns were seen to link to the issues raised above, and the perceived reasons why prisoners may not wish to raise concerns or complaints through the SPS system. One human rights organisation respondent, for example, stated that, while the SPSO played an important role, the need to exhaust internal complaints mechanisms could discourage complaints and could lead to significant delays. One of the VC respondents also suggested that the SPSO route was not able to fully address prisoner concerns and a few provided statistical information about the number of complaints from prisoners to the SPSO, and the number partly or fully upheld.

3.33 Linked to these concerns, a further common theme related to perceived benefits of the current VC role in complaints. Some made general positive comments about the current system, while others identified specific positive aspects, which included that this:

• Has the trust and confidence of prisoners.
• Provides an external avenue giving prisoners the opportunity to speak face to face with an independent person.
• Involves people operating in a voluntary capacity.
• Provides the opportunity to air a grievance and be listened to (sometimes before it becomes a complaint).
• Is straightforward; confidential; rapid; responsive; and efficient.
• Does not require literacy skills.

3.34 Concerns were also expressed about the perceived impact of the proposed provisions. These included:

• Reducing prisoners' rights, safeguards and protection.
• A lack of independence.
• A lack of confidentiality.
• Erosion of trust.
• Limited inclusion of prisoners experiencing literacy problems and vulnerable prisoners.
• Increased bureaucracy and delays.

3.35 One respondent reiterated reservations (noted earlier at para 2.37) about the inclusion of the word "may" in Section 7D(3) of the revised draft Order.

3.36 A small number of respondents stated that the SPS did not publish statistics on prisoner complaints through the SPS process. They cited statistics obtained by the BBC (using Freedom of Information legislation) which identified a high level of prisoner complaints.

3.37 A few VCs stated that the proposed system for prisoners in Scotland compared unfavourably to arrangements elsewhere in the UK.

Suggestions or requirements

3.38 Some respondents identified additional suggestions or perceived requirements (although, as at previous questions, some of the issues or concerns highlighted also imply these).

3.39 Several suggestions related to the nature of the system overall. One human rights organisation argued, for example, that it was essential for those deprived of liberty to have access to an external and independent mechanism for dealing with complaints. One criminal justice respondent also stressed the need for prisoners to have access to a means of raising concerns and complaints that was independent of the complaints system managed by the SPS. The need for an independent process was also raised by some VC and individual respondents, as was the need for confidentiality.

3.40 A few respondents identified specific aspects of the nature of the IPM role in complaints. For example, one local authority respondent stated that care should be taken to ensure that the IPM role remains independent and transparent. One VC respondent stated that they would like the existing entitlement of prisoners to have support at an internal complaints committee (ICC) meeting specifically included. The same respondent stated that they would welcome the involvement of IPMs in the ongoing evaluation of the prison complaints system.

3.41 A small number of respondents identified other forms of support and provision relating to the complaints process that they considered may be appropriate. One criminal justice organisation argued that support from another third party may be welcome where it is deemed inappropriate for an IPM to assist a prisoner with a complaint due to the nature of this. One professional or representative organisation, while agreeing that there would continue to be a role for IPMs in providing a quick and easy route for advice, argued that there may be cases where professional legal advice on the application of the Rules may be appropriate. One local authority respondent stated that support and training for IPMs would be essential to ensure their competent and confident use of discretion in deciding what route complaints should take.

3.42 One respondent raised a specific question about whether the SPSO would have a role in taking complaints about PMCs. They stated that they would welcome clarity about how such complaints should be handled, and the reasons for this.

Question 7 Prison Monitoring Advisory Group

3.43 Question 7 asked:

"Do you support the inclusion of provisions in relation to the establishment and composition of a Prison Monitoring Advisory Group in the draft Order? Please give reasons for your answer."

Overall pattern of views

3.44 Most of the respondents (79%) responded to the quantitative part of Question 7. Views were mixed, but the highest number of respondents (13, or 45%) answered "no" and did not support the inclusion of provisions relating to the establishment and composition of a Prison Monitoring Advisory Group (PMAG). A slightly lower number (10, or 34%) answered "yes", while six respondents (21%) did not express a specific "yes" or "no" view (although one of these made additional comments relevant to Question 7).

3.45 There were differences by type of respondent, and those who answered "no" were almost all of the VCs and almost all of the individual respondents. Only one VC answered "yes", as did all of the local authorities, and small numbers of respondents in most of the other categories. The pattern of quantitative views is summarised in the table below.

Table 8. Support provisions relating to establishment and composition of PMAG?

	Number	%
Ticked or stated "yes"	10	34
Ticked or stated "no"	13	45
Did not express a "yes" or "no" view	6	21
Total	29

3.46 Most of the respondents made additional comments relating to Question 7 (including one who did not address the quantitative part of the question). Only five respondents did not address this question in some way.

3.47 The most common theme for additional comments at Question 7 was the identification of issues or concerns (generally by those who did not support the proposals). Several respondents (generally those who supported the proposals) also made positive comments or identified suggestions or requirements.

Positive comments or benefits

3.48 Several respondents made positive comments or identified benefits of the inclusion of provisions relating to the establishment and composition of a PMAG. While a few expressed general support for this, additional comments included that this was, for example, a practical and appropriate arrangement. A few respondents stressed the perceived importance of the inclusion of these provisions. One welcomed specifically that a minimum number of IPMs would be required to attend the PMAG meetings.

3.49 One IMCO respondent, in expressing agreement with the inclusion of the provisions, stated that HMIPS had always intended to instigate a PMAG, but that this had been omitted from the previous order.

3.50 Some of the identified benefits of this were that it would:

• Bring consistency across the prison estate.
• Support the effectiveness of different roles.
• Ensure appropriate training to meet changing demands.
• Ensure a more relevant and dynamic review process is embedded into all aspects of prison monitoring.
• Provide a forum to raise common issues arising across areas.
• Enable a responsive process.

Issues or concerns

3.51 The main focus of issues or concerns raised was upon two themes:

• The composition of the group as currently known.
• The functioning of the group.

3.52 In terms of the composition of the PMAG, comments were made about the intended membership as comprising HMCIPS, each of the PMCs, at least 3 IPMs and such others as the Chief Inspector considers appropriate. It was argued that the impact of the anticipated composition would be that:

• The group would be weighted in favour of HMCIPS.
• It would not provide a robust and transparent challenge mechanism.
• Any concerns expressed by the IPMs could be over-ridden.
• It would involve "window dressing" and have no function other than to support decisions already made, or make recommendations to HMCIPS (which HMCIPS could listen to or dismiss).
• Independence would be compromised.

3.53 One VC respondent described the proposed membership as principally "insiders", while a few argued that the inclusion of only three IPMs constituted a token gesture, and would not provide sufficient balance.

3.54 In terms of the functioning of the group, concerns included that:

• This would be a management group rather than an advisory group.
• The group would be a "toothless body".

3.55 One VC respondent questioned whether the arrangement would comply with OPCAT. A few outlined the intended purpose of the PMAG, in terms of being to ensure that the new system was "future-proofed" and "person-proofed" so that it would remain robust without statutory protection. It was argued that the PMAG, as proposed, would not meet this purpose.

Suggestions or requirements

3.56 Several respondents identified suggestions or requirements.

3.57 Some related to the nature of the group overall. For example, one VC respondent suggested generally that a different mechanism should be developed to ensure the independence of prison monitoring. Another suggested that, in order to enjoy the trust of the public and IPMs, it should be separate from the system. One individual respondent suggested that what was required was a group to give direction to HMCIPS in respect of monitoring arrangements, not a body reporting to HMCIPS.

3.58 A few respondents made suggestions about the appointments process. These included that:

• Appointments should be made by advertising.
• Appointments should be made by an independent committee.
• Recruitment to the group should be carried out under an open public appointments system for specified periods.

3.59 A few respondents made additional comments on the composition of the PMAG, including that it should:

• Include independent members.
• Include mental health expertise.
• Be composed principally of "outsiders".

3.60 One respondent suggested that any staff involved in monitoring should attend the group as observers rather than members. Another stated that it would be much more open to have a chairperson, and the bulk of members, appointed externally, with places for HMCIPS, one PMC and three IPMs.

3.61 One respondent stated that they may themselves be well-placed to provide input to the group.

3.62 Comments were also made on the role of the PMAG, with suggestions including that it should:

• Provide a challenge function to those carrying out monitoring work.
• Provide a forum for strategic discussion on current and future challenges of legislative direction at a national and international level.
• Augment the knowledge, understanding and thinking of the Board and HMCIPS through "expert outsiders".
• Play a significant role (with the involvement of the "advisors") in future-proofing and person-proofing the continued success of independent monitoring in Scotland.

3.63 One individual respondent, reiterating comments made previously, suggested that the "fine details" of the monitoring scheme could be put in place at a later stage, and should not be "set in stone" at this time.

Question 8 The UN Optional Protocol to the Convention Against Torture / Subcommittee on the Prevention of Torture visits

3.64 Question 8 asked

"Do you support the inclusion of a provision in the revised draft Order explaining that the purpose of inspection and monitoring is in pursuance of the objective of the UN Optional Protocol to the Convention Against Torture (OPCAT), and a section which outlines Scottish Ministers' duties in relation to the Subcommittee on the Prevention of Torture (SPT) visits? Please give reasons for your answer."

Overall pattern of views

3.65 Most of the respondents (79%) responded to the quantitative part of Question 8, and there was a high level of support for the inclusion of an explanation of the purpose of inspection and monitoring in pursuance of the objective of OPCAT, as well as a section outlining Scottish Ministers' duties in relation to SPT visits. All of those who expressed a view answered "yes", while none answered "no". Six respondents did not express a specific "yes" or "no" view.

3.66 By type, all of the VC; local authority; individual; and health and well-being respondents expressed agreement. A small number of criminal justice; inspection, monitoring or complaints; professional or representative; and human rights organisation respondents did not tick or state "yes" or "no", but those who did so expressed their agreement. The pattern of quantitative views is summarised in the table below.

Table 9. Support inclusion of explanation of purpose relating to the OPCAT objective and Scottish Ministers' duties re SPT visits?

	Number	%
Ticked or stated "yes"	23	79
Ticked or stated "no"	0	0
Did not express a "yes" or "no" view	6	21
Total	29

3.67 Most respondents made additional comments relating to Question 8 (including two of those who did not express a "yes" or "no" view). Only four respondents did not address this question in some way.

3.68 The most common additional theme was the identification of positive comments on, or benefits of the inclusion of the issues outlined in the question. Some issues or concerns were also identified, and a few additional suggestions made.

Positive comments or benefits

3.69 Positive comments included overall views in agreement with, or supporting the suggestions, or some aspect of these. Two respondents who did not tick or state "yes" or "no", also expressed general agreement. One, for example, expressed agreement with reference being made to the Scottish Government's commitments to meet its obligations in regard to the OPCAT objectives and the SPT obligations; and the other with the inclusion of the statement that the purpose of independent prison monitoring is in pursuance of the objective of OPCAT.

3.70 One health and well-being organisation respondent, in expressing support, stated that this seemed to be one of the main reasons for the proposed changes, while one local authority respondent stated that the current system of prison monitoring was not compliant with OPCAT. One IMCO respondent specifically welcomed the explicit wording at 6A and 7G, and stated that this reflected the responsibilities arising from the UK's ratification of OPCAT and the official designation of members to the UK's National Preventive Mechanism (NPM).

3.71 A few respondents emphasised the perceived need for the explanations relating to the OPCAT objective and SPT duties, and / or the importance of these. One human rights organisation respondent, for example, stated that the independence of the Monitors was central to their effectiveness, and that the OPCAT clearly provided for independence of NPM members (Art.18[1]). One IMCO commented on the importance, for all of those involved in the process and practice of independent prison monitoring, of the linkages to national and international law being made clear. One individual respondent stated that, as the country had signed up to the protocols of OPCAT and SPT visits, it was right that it was noted within the Order.

3.72 Particular perceived benefits of the inclusions proposed were that these would:

• Ensure that the issues could not be overlooked.
• Place responsibility on the Scottish Ministers to ensure access to Scottish prisons as appropriate.
• Assist in understanding that independent prison monitoring is not a stand-alone function.

3.73 A few respondents qualified their agreement with issues or concerns (and these are considered below).

Issues or concerns

3.74 Among the issues or concerns raised, some of these were general comments or observations. A small number of VCs stated that "words" alone were insufficient, and that the proposals did not meet the "gold standard" which had been identified as the aim.

3.75 There were also concerns about the actual impact of the provisions. For example, one VC respondent stated that there appeared little difference to the current situation, and a few individual respondents stated that the provisions made no difference to the legal position. A few respondents also argued that the inclusion of a reference to OPCAT (which was binding on the Government) created an illusion of commitment to the protection of human rights which was not borne out by the provisions in the revised draft Order.

3.76 Some of the VC respondents and one of the individuals expressed concern that the new system may still not be OPCAT compliant. One human rights organisation respondent, whilst welcoming the express inclusion of the statement that the purpose of independent prison monitoring is in pursuance of the objective of OPCAT, argued that some issues remained to be addressed. They also suggested a number of requirements (discussed below).

3.77 Another respondent raised a specific issue about the wording relating to the visits of the SPT. They stated that they considered the proposed text to be broadly consistent with OPCAT, but that qualifying the authorisation to members of the SPT to do anything considered necessary to enable their visits to "anything which the Scottish Ministers consider necessary" could undermine the independence of the SPT during its visits.

Suggestions or requirements

3.78 Some respondents made additional suggestions or identified perceived requirements relating to the issues covered in Question 8.

3.79 One human rights organisation made reference to their previous consultation response, and reiterated that, while OPCAT did not prescribe the format of the structures monitoring places of detention, the legislation establishing the new structure should encompass the key elements set out by the OPCAT. Their response to the previous consultation provided information and expressed some concerns about the proposals in terms of these. The respondent reiterated these in their current response, making reference to the:

• Mandate and powers (e.g. 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 dissolve or replace it at will; and the need for functional and financial independence).
• Roles and responsibilities (e.g. the need for clear specification of these; sufficient independent Monitors to carry out their duties; and regular visits).
• Duration of office and appointment for members (e.g. the inclusion of selection procedures; members' independence from state authorities; methods to resolve incompatibility of functions and ensure non-interference from the executive; operational autonomy in appointment of staff; and sufficient security of tenure for Monitors).
• Composition (e.g. specific provisions relating to composition of the body).
• Funding (e.g. independent and sufficient financing to ensure operational autonomy and independent decision making; specification of the source and nature of this; public reporting and audit procedures; independence from executive control; funding at a level to enable Monitors to carry out their statutory role; and reimbursement of Monitors' expenses).
• Immunities and privileges (e.g. provision of these as necessary for the independent exercise of members' functions; and the protection of confidential information collected).

3.80 The respondent also identified, in their current response, the importance of members and staff being independent, knowledgeable and having the relevant professional expertise. The need for the NPM to take a multidisciplinary approach was highlighted, and for it to be representative of wider society.

3.81 The respondent stressed the need for specific attention to the new system's membership, where professional occupations or pre-established relations could lead to potential conflicts of interest or perceived lack of independence. They stressed that the SPT Guidelines on appointment provided that NPM members be selected through an open, transparent and inclusive process, with public criteria for appointment. The respondent also noted that the SPT recommended that NPMs be provided with sufficient human, material and financial resources to discharge their prevention mandate independently and effectively.

3.82 The desirability of annual reporting on individual prisons (mentioned earlier) was also identified, as was the need for those deprived of liberty to have access to an external and independent mechanism for dealing with complaints.

3.83 The respondent also noted the importance of the Monitors being able to access all places of detention, and all facilities within those places at any time. They made reference to Article 14(2) of OPCAT and argued that, if it was intended that limitations would be set on Monitors visiting prisons, these limitations should be set out clearly.

3.84 A few VC respondents argued generally that a demonstrable commitment to the protection of human rights was required.

3.85 Clearly, some of the issues raised above also link to issues or concerns raised at other points in the report, in the responses to other questions.

3.86 In terms of other suggestions made, one VC respondent suggested that there would be additional benefit in co-ordinating visits with the activities, and possibly the support, of the IPMs.

3.87 Two respondents made specific wording suggestions. One professional or representative organisation reiterated a suggestion made in their response to Question 2 about a specific change to the wording of Sections 6A and 7G of the revised draft Order. Additionally, one IMCO suggested the incorporation to Section 6A of specific wording to reflect all three minimum powers of an NPM member envisaged under OPCAT (Art. 19 a-c).

Question 9 Transitional period

3.88 Question 9 asked:

"Do you support the inclusion in the Order of a transitional period of 3 months to allow any work undertaken by the Prison Visiting Committees, at the time the new system comes into force, to be completed? Please give reasons for your answer."

Overall pattern of views

3.89 Most of the respondents (83%) responded to the quantitative part of Question 9, and there was a high level of support for the inclusion of a transitional period of three months. All of those who expressed a view answered "yes", while none answered "no". Five respondents did not express a specific "yes" or "no" view.

3.90 By type, all of the VC; local authority; individual; professional or representative; and health and well-being organisation respondents expressed agreement. A small number of criminal justice; inspection, monitoring or complaints; and human rights organisation respondents did not express a specific view, but those who did expressed agreement. The pattern of quantitative views is summarised in the table below.

Table 10. Support inclusion of 3 month transitional period?

	Number	%
Ticked or stated "yes"	24	83
Ticked or stated "no"	0	0
Did not express a "yes" or "no" view	5	17
Total	29

3.91 Most respondents made additional comments relating to Question 9. Only five respondents did not address this question in some way.

3.92 The most common theme was the identification of positive comments or benefits relating to the inclusion of a three month transitional period. Some issues or concerns were also highlighted, and a small number of additional suggestions made.

Positive comments or benefits

3.93 Most respondents made some positive comments or identified benefits of the transitional period (or aspects of this). Among these, some expressed general agreement with, or support for this. One criminal justice respondent stated that it reflected good practice, in order to allow the work of the VCs to be concluded, given their good working relationships with prisoners. One of the professional or representative organisations argued that it seemed a practical proposal, while a health and well-being respondent expressed the view that it seemed to be a sensible operational measure to complete existing work.

3.94 A few respondents stressed the importance of a transitional period, and one individual respondent stated that it would be important in allowing monitoring to continue, and to provide time for the new scheme to "find its place". One of the VC respondents argued that a period of overlap would be required particularly if the IPMs were substantially new recruits. Reference was also made to the requirement for the production of VC annual reports in April 2015.

3.95 Some respondents identified additional perceived benefits of the inclusion of such a three month transitional period, such as to:

• Ensure current work was completed under the previous arrangements.
• Enable a more seamless transition to the implementation of the new system.

3.96 Several VC and individual respondents expressed the view that the time period would be sufficient for VCs to conclude any ongoing matters and ensure that any actions in respect of prisoners' concerns were concluded (although a small number also raised concerns about the time period, discussed below).

3.97 One local authority respondent stated that it would be likely to be detrimental to the changeover if such a transitional period was not included.

Issues or concerns

3.98 Among the issues or concerns raised, the most common focus for comment (by several VCs and an individual respondent) was annual reporting. They raised the issue that one of the reasons for the suggestion of a three month period was to ensure the completion of annual reports. They argued, however, that this focus on annual reports was not consistent with the lack of inclusion of such a provision in the new system (on the grounds that these were "unnecessary"). Some also expressed the view that the Government had shown little interest in these reports in the past.

3.99 A few other issues or concerns were identified. A small number of VC and individual respondents, for example, expressed doubt about whether the successors to the VCs would be ready within the three month timescale, or whether this would be sufficient time to get the new system up and running effectively.

3.100 A few VC respondents stated that, while the transition period was welcome, it was reliant on the dedication and professionalism of volunteers. It was argued that they would be expected to continue with their duties and to perform them to the same high standard as in the past, and one argued that this was despite what they considered to be inappropriate comments about their work to date. Another VC respondent expressed concern that VC members had already been asked to carry on for several years, during which time attempts to agree a replacement system had not secured change.

3.101 One VC respondent reiterated their general concern about the perceived lack of independence in the Order.

Suggestions or requirements

3.102 A small number of additional suggestions or perceived requirements were identified by a few VCs. One, for example, stated that they hoped the PMC would liaise with the current VC secretary to ensure a smooth handover and avoid gaps in the provision.

3.103 One VC respondent stated that further guidance would need to be developed before and after the date of commencement. They also argued that the knowledge and experience of current VC members should not be lost, and should be included within the development of future guidance.

3.104 Another VC respondent stated that it would not be advisable to rely on support from large numbers of existing VC members if an open-ended commitment was sought, and argued that it would be more sensible to give a firm commitment to a changeover date.