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

4.1 This section presents the findings relating to other aspects of the revised draft Order and related issues.

Summary of Section 4

Most respondents provided additional comments at Question 10, and a few made additional comments elsewhere. The most common theme was the identification of issues or concerns. The identification of suggestions or requirements was also common, and some respondents also identified positive comments about, or benefits of the proposed changes.

Positive comments or benefits of the proposed changes included: expressions of support; the perceived need for change; and perceived benefits of the proposed changes.

Issues or concerns related to: the overall nature of the change process (e.g. perceived lack of action and timescale; the Implementation Group; and the basis of change); the nature of the consultation (e.g. the questions posed; disregard of views; and the consultation materials); and the nature of the proposals (e.g. management, structure and roles; the focus on inspection and on guidance; lack of specification of details; perceived failure to meet process pre-conditions; negative impact of the changes; and costs).

Many respondents also identified suggestions or requirements (e.g. relating to: the overall approach; inclusion of particular details and specifications; provision of information; and other specific suggestions).

A number of respondents also provided details of their organisation or response (e.g. nature and aims; work; nature of response; and involvement in previous consultation); or made general observations (e.g. on the opportunity to respond or the importance of independent monitoring).

Question 10 and other comments

4.2 Question 10 asked

"Do you have any further comments on the draft Order or Explanatory Document? Please provide any further comments below."

Overall pattern of views

4.3 Most respondents provided additional comments at Question 10, and a few made additional comments elsewhere which did not link directly to a specific question. All of these have been included below. In the small number of cases where respondents did not use the response form, most of the issues raised by these respondents have been presented at relevant points in the report, but any additional comments are presented along with other responses to Question 10 below.

4.4 The most common theme was the identification of issues or concerns. The identification of suggestions or requirements was also common, and some respondents also identified positive comments or benefits of the proposed changes. In addition to these themes, a number of respondents provided details of their organisation or response, or made general observations.

Positive comments or benefits

4.5 Where additional positive comments were made, these included general expressions of support for the changes made in the revised draft Order. One local authority respondent, for example, stated that they were satisfied that the changes addressed the issues they had raised previously. One IMCO respondent stated that they were encouraged by the changes made, particularly in relation to the title of the Order. A few respondents made additional positive comments about support for particular changes (e.g. the commitment to training; and the clarification of the proposed role of IPMs in complaint-handling) which have been included previously at the relevant points in the report.

4.6 A few comments were also made about the perceived need for reform of the current system, and one respondent suggested that the nature and quality of monitoring by VCs had been variable. Another respondent identified a number of overall benefits of the proposed changes, including: consistency of process; compliance with OPCAT; general effectiveness of the new approach; and the potential for this to drive continuous improvement through co-ordinated prison monitoring, communications, training and data capture.

Issues or concerns

4.7 As noted above, most of the additional comments focused on identifying or reiterating issues or concerns. All of the VC respondents raised some issues or concerns, along with small numbers of respondents drawn from: individuals; criminal justice; IMCO; professional or representative; and human rights organisations.

4.8 The main overall themes for issues or concerns related to: the overall nature of the change process; the nature of the consultation; and the nature of the proposals (both in general terms and in relation to specific aspects of these).

The overall nature of the change process

4.9 In relation to the overall nature of the change process, a few respondents commented specifically on the lack of action to implement the recommendations of the 2007 review of Prison Visiting Committees^[12]. A few stated that some of the recommendations made by Professor Coyle in 2013^[13] had not been accepted, or that they had been disregarded without clear reasons. One VC argued that frequent changes to the draft Order over several years had confused the situation, without addressing the issues. One of the criminal justice organisation respondents also commented on the timescale for change. It was argued that this had led to uncertainty and to a reduced number of VC members.

4.10 A few VC and individual respondents expressed the view that there was a heavy reliance on the role of the Implementation Group in developing guidance to supplement and replace legislative provisions. They stated that Government representatives were in the majority on the Group, with views expressed by other members given little weight. They also expressed the view that it was inappropriate for the work to be led by a Deputy Prison Governor seconded to the Inspectorate.

4.11 Some VC and individual respondents raised questions about some aspects of the basis of change. For example, it was argued that the aspect of the system which was not OPCAT compliant was the arrangement whereby the SPS held the budget for prison monitoring, which, it was suggested, could have been changed. A few respondents also argued that there was no evidence to support the assertion that prisoners would have confidence in the new system. As noted previously issues were also raised about the justification for changes relating to prisoner complaints.

The nature of the consultation

4.12 Several VCs and one of the individual respondents raised issues or concerns relating to the nature of the consultation.

4.13 Some focused on concerns about the questions posed, with issues raised including views that these: were narrowly focused; did not ask the right questions; and were worded to support the Order and avoid reopening particular issues. A small number of VC respondents also argued that the consultation did not make clear what the main changes were from the current arrangements.

4.14 Concerns were also expressed that the views expressed would be disregarded, or that comments would not be taken into account. Some VC respondents, for example, suggested that criticisms or reservations expressed about previous proposals had not been taken into account fully, or had been dismissed. A few respondents stated that the consultation period was too short.

4.15 Comments were also made by some VC and individual respondents about the actual consultation document and the Government report of September 2014 detailing their response to the previous consultation and the proposed changes^[14]. For example, it was suggested that the justifications for change were founded on the responses to the previous consultation (concluded in January 2014) but that the Government report on this had not been published until September 2014 and was misleading. Specific concerns were expressed about the presentation of: the balance of views; the Justice Committee views; and the recommendations of the Coyle report. There was also criticism of a perceived lack of information about the Government's reasons for a lack of inclusion of particular issues.

4.16 Some VC respondents raised concerns about some particular statements in the consultation document relating to the current role and work of the VCs.

The nature of the proposals

4.17 Some issues or concerns were also raised or reiterated with the nature of the proposals in the revised draft Order, both in general and in relation to specific aspects. For example, one human rights organisation respondent stated that they considered that there were still a number of outstanding issues which required to be addressed. A few VC respondents argued that the current proposals would not enable the development of the best possible independent prison monitoring system, or the "gold standard" for Scotland.

4.18 Specific issues or concerns relating to the nature of the proposals overall included views that:

• The general focus of the revised draft Order was on inspection and not independent monitoring.
• There was too much emphasis on guidance (which could be changed without recourse to Parliament) rather than protection through legislation.
• The revised draft Order did not meet some of the pre-conditions required by the legislative process.

4.19 Comments were also made about the perceived impact of the changes overall, including views that:

• There would be a loss of independence (or the Order did not go far enough to ensure the independence of PMCs and IPMs).
• The proposed system would make it harder for prisoners to exercise their rights.
• There would be a potential lack of trust in, and credibility of the new system.

4.20 Some respondents expressed concerns about the cost of the proposed changes (e.g. that this would be more expensive than the current system) and / or expressed concerns about whether this would represent better value for money. A few respondents stated that the Government had not provided information on how much they expected the proposals to cost.

4.21 Some issues or concerns were also identified or reiterated relating to specific aspects of the proposals (most of which have been discussed elsewhere in this report and will not be repeated in detail here). These included:

• The management and structure, and the role of HMCIPS.
• Aspects of the roles of the PMCs and IPMs.
• A lack of specification, or lack of inclusion in the Order of:
  • Frequency of monitoring.
  • The number of IPMs.
  • Recruitment and selection of IPMs.
  • A requirement to hear and investigate prisoner complaints.
  • Meetings of Monitors and meetings with the Governor.
  • A requirement for annual reports on individual prisons.
  • A national forum.

Suggestions or requirements

4.22 As at previous questions, some additional suggestions or requirements were identified (although clearly some are also implicit in the issues or concerns raised).

4.23 Some suggestions related to the overall approach. For example, one of the VC respondents expressed the view that a "rethink" was required. Another suggested that prisoners should be asked for their views of the new system. The same respondent argued that the current system generally worked, with no need to sweep this away. A few respondents stressed a perceived need for general consideration of prisoner confidence in the system. The need for OPCAT compliance was also highlighted.

4.24 Suggestions were also made about the inclusion of particular details, and the need for specification of particular issues (such as those identified at para 4.21 above and elsewhere in the report). Comments were also made on a perceived need for independent Monitors to have unfettered access to the prison at any time. It was also argued that the Governor should not have a role in arranging the rota visits or the locations to be visited. One VC respondent stated that the Government should be looking to raise the profile of annual reports to raise public awareness of prisons, rather than to abolish these. One VC respondent stated that the proposed process of appointing IPMs must be in accordance with the Nolan principles^[15].

4.25 One criminal justice organisation respondent suggested that the Scottish Government should list those of Professor Coyle's recommendations that it accepted. They also argued that it should state whether it favoured the adoption of those recommendations which were referred for consideration to the Independent Monitoring Implementation Group. The respondent argued that, if these were to be rejected, the reasons must be made clear, and if they were to be adopted, they should be included in the Order.

4.26 One professional or representative organisation stated that ensuring the independence of PMCs and IPMs should take priority in the guidance.

4.27 One individual respondent reiterated a suggestion they made at other points in the report that the fine details of the system could be put in place once the new scheme was up and running. They also expressed the view that the scheme would evolve over time, and that there would be a monitoring scheme that Scotland would be proud of.

4.28 One respondent organisation stated that the provisions of the revised draft Order would not impede their own current arrangements, and suggested ways in which they could continue to be involved under the new system.

Organisations and observations

4.29 A number of respondents provided details of their organisation or the nature of their response. For example, some provided information about the nature and aims of their organisation, or their role and work (relating particularly to their relevant expertise or involvement with the issues in the consultation). Comments were also made about the nature of responses, and a few respondents made reference to their involvement (or otherwise) in the previous consultation, or their response to that consultation. A few respondents provided comments about whose views were represented by the material.

4.30 A small number of respondents stated specifically that they welcomed the opportunity to respond to the consultation, and a few made general comments on the importance of independent monitoring of prisons.