Proposed Subordinate Legislation
Public Services Reform (Prison Visiting Committees) (Scotland) Order 2014 [Draft]
This is a round-table session, so committee members get to sit back a bit; rather than asking a lot of questions, we will throw a question into the pot and let the panel debate the ins and outs, the dos and don’ts and the yesses and nos for reform of prison visiting committees.
I thought that a good way to start would be to ask the witnesses to say—we can see who they are from their nameplates—who they represent.
Professor Andrew Coyle (International Centre for Prison Studies)
I do not represent anyone. I was asked by the Scottish Government to carry out a review of independent monitoring of prisons.
David Strang (HM Chief Inspector of Prisons for Scotland)
I am the chief inspector of prisons for Scotland, a post that I took up in June. As you will see from the Public Services Reform (Prison Visiting Committees) (Scotland) Order 2014 [draft], responsibility for the oversight of independent prison monitors will fall to my post.
Diego Quiroz (Scottish Human Rights Commission)
I am Diego Quiroz.
Quiroz. I like saying that.
Good morning, and thank you for the invitation. I am from the Scottish Human Rights Commission.
Lisa Mackenzie (Howard League Scotland)
I am the policy and public affairs manager at Howard League Scotland. I am a very last-minute substitute for John Scott QC, our chair. He is sorry that he cannot be here but unfortunately a family member of his is in hospital.
I am sure that you will be brilliant.
Joan Fraser (Association of Visiting Committees for Scottish Penal Establishments)
I am from the association of visiting committees and a member of the Polmont visiting committee.
Who wants to start us off and throw a question into the pot?
Professor Andrew Coyle was commissioned by the Scottish Government to undertake a review of the independent monitoring of prisons. However, I note from his submission that he does not feel that the Government accepted his recommendations and that he has significant concerns about the proposals in the draft order. Will Professor Coyle say a little bit more about the work that he was asked to do and the Government’s response?
Thank you for the opportunity to do so. My terms of reference were to review the extent to which the Scottish Government’s then proposals were in conformity with its obligations under the optional protocol to the convention against torture. At one level, the terms of reference were quite narrow, but I agreed with the Cabinet Secretary for Justice that I could interpret them fairly broadly.
I was asked to carry out the review because the current arrangements for independent monitoring, which is done through visiting committees, do not conform to OPCAT. It is important to understand that that is solely because the budget for their work sits with the Scottish Prison Service; it is not any judgment on the independent monitoring that they do. Under the draft order, control of the budget will be taken from the Scottish Prison Service and given to Her Majesty’s chief inspector of prisons. Since that was the bar to conformity, it is true to say that the new arrangements will satisfy the minimum OPCAT requirements. That is to be welcomed. However, there is a difference between the irregular cyclical inspections that are done every three or four years by the inspectorate of prisons and the regular continuous monitoring that is done by visiting committees or independent monitors. That distinction is important and should not be confused.
The cabinet secretary says in his foreword in the response to my review that he wants Scotland to have a “gold standard” for the oversight of prisons. As it stands, the draft order does not achieve the standard. It would be possible to meet that standard with some relatively straightforward amendments, the first of which would be to remove the distinction between prison and lay monitors. That distinction, which was not in my review—I have no knowledge about where it came from—muddies the water and creates a new tier of unnecessary bureaucracy. All we need is a single tier of independent monitors for each prison.
The second tweak to the draft order would be to replace the power of the chief inspector to instruct monitors, which is an unhelpful description, with a requirement for the inspector and the monitors to co-operate in their work. If those two changes were introduced, the order would be significantly improved.
Under the current arrangements, visiting committees are not part of the United Kingdom national preventive mechanism, unlike the two partner bodies in England and Wales and in Northern Ireland. The irony is that that exclusion is likely to continue under the proposed order, because the independent monitors will be represented by the chief inspector. Unlike their colleagues in the two other jurisdictions, the monitors will not have a place at that table.
I ask the witnesses to indicate to the clerk when they want to speak. I will bring in Mr Quiroz first because he put his hand up first.
I will clarify three points that the commission wants to present to the committee. The points are interlinked and relevant—the first relates to OPCAT, the second is about the minimum requirements that OPCAT asks state parties to comply with and the third is about the proposed draft order.
As members know, the optional protocol is an international human rights instrument that aims to prevent torture by establishing a system of regular visits to places of detention. Visits are to be undertaken by independent experts at two levels—nationally, through the NPM, and internationally, through the sub-committee on prevention of torture. There is a state obligation that must be taken seriously.
OPCAT does not dictate the form that the mechanisms should take. In the UK, the NPM has taken a different form, because 18 bodies make up the NPM. As Professor Coyle said, in prisons, the NPM has taken the form of independent monitoring boards in the rest of the UK—in Northern Ireland and in England and Wales.
Scotland has chosen a different model, which is okay. However, it is clear that the new structure must comply with the minimum guarantees that are set out in OPCAT, which concern the body’s mandate and power, the appointment process for staff and members, autonomy in funding and lines of accountability that ensure operational independence.
The proposed draft order is silent on most of those issues or explores them only partially, so the commission considers that the proposed order could be improved by creating a clear and comprehensive legal framework, which would enable monitors and the chief inspector to conduct their functions, provide greater legal certainty to the system and ensure confidence in the system.
I welcome Graeme Pearson, who apparently cannot leave us alone and is missing us so much.
It is fascinating to be here.
Are we not wonderful?
I call Mr Strang.
The scrutiny of places of detention is important. Often, our most vulnerable citizens are in prison, and the state puts them there after due process. It is hugely important to have independent scrutiny of how prisoners are cared for, their treatment in prison and their conditions in prison. That is why we have an independent inspectorate of prisons in Scotland and why we have the chief inspector’s post, which I hold. When I was appointed, it was stressed to me that my post is independent of the Government and the Scottish Prison Service. I can go in to visit and inspect anywhere in a Scottish prison.
Diego Quiroz mentioned the requirement for monitoring under the national preventive mechanism. There should be monitoring by lay, local people and inspecting as two separate functions, although they are clearly connected. Andrew Coyle made the point in his report that the activities are complementary, although separate. Inspection is done infrequently; the inspectorate does a deep inspection of every area of a prison, which involves a team of 10 for 10 days and the production of a report, and that might happen every two or three years in an establishment.
12:00
Monitoring is done continuously. People from the local community go in and monitor. They speak to prisoners and staff, and report to the governor. They also report annually to the Cabinet Secretary for Justice. The monitoring is a continuous process, but it consists of an outsider going into a place of detention, forming a view and reassuring us all as citizens that our prisons are properly run or, if there are grievances, that they can be taken up.
I have read through all the submissions that the committee received and it seems that the new arrangements in the proposed draft order are broadly welcome because they will provide more of a structure for independent prison monitoring, although there will be little change to inspecting. As the committee knows, until now independent monitoring has been done by visiting committees that are attached to each establishment. What has been recommended—it was also recommended in a review eight years ago of visiting committees—is about greater co-ordination, better training and recruitment and so on.
I think that the proposed new arrangements will allow the two sides of scrutiny to be better co-ordinated. I absolutely support the independence of prison monitors—the language that we have been using is about independent prison monitoring—and they will continue to monitor independently. However, those whom the order calls “prison monitors” will perform a function on my behalf, for which they will be paid, of assisting with recruitment, training, appraisal and co-ordination. They will be expected to go into prisons as monitors.
Within the world of independent prison monitoring, the order will therefore create two levels. There will be lay monitors, who will be local volunteers and will do very much what current visiting committee members do; and paid co-ordinators, who will be called prison monitors.
In response to what Diego Quiroz said, there are four points to make on the new arrangements for monitors: they will be independent; they will be appointed for a certain time; their funding will not come through the Scottish Prison Service; and they will be accountable through the inspectorate, which is an independent body.
There are lots of things that are not in the order, but I am told that it is a legal technicality not to include too much detail about, for example, the selection process or the training package. The committee will have seen my comment that I was surprised and disappointed that the order does not require the establishment of the advisory group. However, all those things will be part of the implementation if the order is passed.
You have not dealt with the distinction or separation between your role and what the prison visiting committees do. I note that you will have powers to instruct prison monitors and that they will be able to instruct lay monitors. That is a key point in Professor Coyle’s submission, but you have not touched on it. Perhaps you can do so.
I thought that my comments had made it very clear that there is a distinction, that inspecting is one thing and independent monitoring is something different, and that I see the two as separate. The order will give me personally a new responsibility not just to head the inspectorate, but to oversee and be responsible for independent prison monitoring through co-ordination. I see that being done through the paid prison monitors.
I know that in legal terms the order refers to instructing, but I do not anticipate wagging my finger and telling the paid monitors that they will do something, and that they will wag their fingers and tell the lay monitors likewise. I do not disagree with Andrew Coyle’s comment about a duty to co-operate and work together, because that is very much the style of how it must work. If the approach is to be successful, it must be co-operative and the prison monitors need to offer support.
In the reports that I have read, one criticism of prison visiting committees is that they are almost too independent. I do not mean that they are too independent in principle, but they are off doing different things, they are not co-ordinated and their reports are quite different. If we are to get the best from monitoring and inspecting, there needs to be some co-ordination.
That duty of co-ordination will fall to the paid monitors, who will report to me as the chief inspector. In legal terms, yes, I can instruct the paid monitors and, yes, they can instruct the lay monitors, but the change is much more about ensuring that there is co-ordination and good communication. When a set of monitors find issues in a prison, their findings could be communicated to the inspectorate, which in turn might, for example, undertake a thematic inspection as a result of what they have found.
Therefore, I do not see things quite so hierarchically. I know that it reads in a very hierarchical way in the proposed draft order, but that is a legal point. In the way in which the new system is implemented and managed, things will be much more co-operative.
The trouble is that “instruct” is the word used in the proposed draft order.
Indeed. I do not deny that. That word is used, I am told, for legal reasons.
We might come back to that and to Professor Coyle. We will hear first from Ms Fraser and then from Mr Quiroz—I think that I am getting his name wrong already.
No, that was okay.
What is actually in the order is absolutely crucial. As far as the so-called “lay monitors” are concerned, all that the proposed draft order says about their duties is that they will “assist” a paid monitor. On an extreme view, that could mean carrying the paid monitor’s briefcase, or it could mean having the full range of monitoring duties—it is absolutely unspecified. The proposed draft order also says that the lay monitor
“must ... comply with any instructions issued by a prison monitor”.
To me, that is not independent. The lay monitor could be instructed not to do certain things because they would be awkward or embarrassing.
I am not suggesting that the current chief inspector has any intention of doing such a thing, but the order needs to be future proofed and person proofed. We do not know whether, in five, 10 or 20 years’ time, a chief inspector might say something that all of us around this table thought was fettering the independence of the lay monitors. The proposed legislation is completely silent on the role of the lay monitors.
The role of the paid monitors is described in some detail in the proposed draft order, but all the protections that would come from having a proper, transparent and effective appointments system—for example, the conditions under which monitors could be dismissed—and all those things that would produce a robust and independent monitoring system are completely absent. Instead, we are to rely on guidance, which could be altered without ever coming back to Parliament.
On the hierarchical nature of the relationship of the lay monitors to the paid monitors, the chief inspector and the advisory group, the proposal is very complicated. My question is: what will the paid monitors add? Where is the added value? To have someone providing co-ordination, support and training, which prison visiting committees currently need to organise in the free time given by members, would be absolutely fantastic, but the role of that person should be made explicit in the legislation. That role should not be one of monitoring and oversight—almost a fettering role—as is currently described in the proposed draft order.
Let me make a couple of points. The commission considers that human rights standards should be on the face of the legislation. Human rights standards apply in all circumstances and at all times, so I totally agree with Ms Fraser that the legislation should be as future proofed as possible. We need to build a system that serves not only today’s circumstances but unknown circumstances. I have no doubt about the personal integrity and professionalism of the chief inspector, whom I have had the pleasure to meet a couple of times, but the issue goes beyond that. We need to build the best system—a gold standard, as was mentioned before—for the monitoring of prisons.
Secondly, the technical nature of secondary legislation is that it is specific, so there is nothing wrong with containing all the elements that have been mentioned on the face of the legislation.
I will give a brief example. I am an independent expert on human rights institutions for the European Commission. In our missions to European states that are applying for European Union membership—I will not mention the names of those states—we ensure that they comply with the EU values of human rights, the rule of law and democracy, or the so-called EU acquis. When I travel, I take just a copy of a piece of legislation that was drafted and enacted by the Scottish Parliament: the Scottish Commission for Human Rights Act 2006. When Governments of those applicant states ask me what legislation to establish a national human rights institution should look like, I simply show that act to them. That is a gold standard; it is the best-in-class legislation. It contains a detailed account of the powers and mandate, the annual reports, immunities and privileges, membership, independence, disqualifications, terms of office, staff, the sources and nature of the funding, accounts and audit. It is possible to have all that in a piece of legislation. Why should that not be replicated in the order? Having a legal framework and being specific would guarantee both the independence and effectiveness of the new structure for today and tomorrow.
I do not know whether it is an either/or or an and—
Your integrity has been vindicated. You do not need to defend.
I am very grateful to Mr Quiroz for that. I think that we will include in the implementation of the order all the points that he has made that should be a feature of it; it is just that they are not in the order.
I want to respond to Joan Fraser’s comment about the lack of definition of the lay monitor’s role. I understand where that comes from. I do not know whether members have the order in front of them, but proposed new section 7A of the Prisons (Scotland) Act 1989, which lays out what the paid monitors will do, is very clear and specific. The order is less specific about the lay monitors, but we can get there through proposed new section 7B(3)(a), which says that they must
“assist prison monitors ... in carrying out the duties specified in section 7A(4)”.
It would be clearer if those duties were specified for lay monitors, but I do not think that it is as arbitrary as Joan Fraser suggested. Their duties are only to assist and monitor in prison monitoring. The notion that they could be instructed to carry someone’s bag is completely outside that.
Part of my duties in proposed new section 7A(1) of the 1989 act is to evaluate the performance of paid monitors. If I hear that any paid monitor is instructing a member of the community to carry—
I think that that was a metaphorical and flippant—
I know, but I am making the point that it is not unfettered, unlimited and arbitrary. The duty is to assist in the monitoring of prisons, and prison monitors are appraised on that by me, as lay monitors will be appraised.
The convener made the point that the order says “instruct”. There is no way round that. It is very clear that it says that the chief inspector will instruct the prison monitors, and the prison monitors will instruct the lay monitors. That does not need to be interpreted. It also says that the lay monitors will assist the prison monitors. That is not an equal partnership.
I want to make a specific point. I have worked in prisons for many years. Some people in prisons welcome independent monitoring and some do not. I also know that both staff and prisoners need to have clear orders. They need to understand, and there needs to be no dubiety, because if there is dubiety, they will drive a coach and horses through it.
One example of the lack of clarity that will result from having a two-tier system of monitors concerns prisoners’ complaints, which is an important part of the monitoring. According to the order, the prison monitors will talk to prisoners, but only the lay monitors—and not the prison monitors—will take complaints. That is a fine distinction that prisoners will find very difficult to cope with.
The committee should note that the Scottish Public Services Ombudsman states in his written submission that he believes that he has a specific role—as indeed he does—in dealing with complaints. We will confuse people, and that is always a bad thing to do in a prison setting.
12:15
I will take Ms Mackenzie first and come back to Ms Fraser.
Andrew Coyle has made my point. The complaints issue is an obvious one, and we share his concern that the situation would be confusing for prisoners.
There are two possibilities with regard to the lack of parity between the duties of paid and lay monitors, as set out in the proposed draft order. One is that not replicating the duties was a genuine oversight. Another is that it would not be practical to expect paid monitors to handle complaints because they will be in a prison fairly infrequently. We are talking about three individuals who work part time; possibly—although it is not clear—two and a half days a week covering 16 establishments. It is not practical for a monitor to go into Saughton and to hear a prisoner say, “I’m really concerned about my relationship with my prison officer—I feel like I’m being bullied”, and for the monitor then to say, “Well, I can’t take up your complaint. Wait until the lay monitor comes in.”
That leads us back to the question of why we should have paid monitors. Ultimately, the proposed system will just be very confusing for prisoners. We concur with Andrew Coyle and the AVC that the proposed draft order would create a needless hierarchy and an extra layer of bureaucracy, and it is not clear what it will achieve. We completely agree that the inspectorate, with that oversight role, needs extra resource. That resource could be provided in the form of a couple of members of staff who take a co-ordinating and supporting role in order to help to mete out the training programme and to help with recruitment. Perhaps they would go out and visit prisoners in the course of that work to support the independent monitors in the community. For us, the big question is what value there is in having paid monitors on such a scant basis.
Are you suggesting that they be given a different name, for example?
They could be called co-ordinators, or something similar. That is not a huge distinction, but it would certainly be important in the legislation.
I will pick up on that last point first. It is not a question simply of changing the title from “paid monitor” to “co-ordinator”; that would also require changing the duties in the text of the proposed draft order to make it clear that those people are there to ensure proper operation of independent monitoring by lay monitors.
I will make two points. The first is about complaints being heard by visiting committees. The current legislation on prison rules refers to “requests”, and very often what we deal with is not actually a complaint but a concern of some kind. A prisoner might have been confused about a particular matter and tried to get information, but was unable to do so.
Secondly, complaints—or requests—can, in direct opposition to the formal internal process, be made orally. A prisoner can stop the monitor as they are going round the prison and ask to speak with them. If the prisoner is illiterate—as approximately 80 per cent of the prison population are—they can get a friend to fill in a form for them asking to see a member of the visiting committee. That is confidential and would be followed up and resolved within a few days.
There is a further area of confusion. If lay monitors are to deal only with complaints, the situation that I have just outlined would be the reverse—the mirror image of what Lisa Mackenzie just said. If a request turns out to be a search for information or a concern and not a complaint, the lay monitor would, as the proposal stands, have to say, “I’m sorry—that’s not for me.” The prisoner would have to wait until the paid monitor came along, which might not be until the following month.
I am also very sure—I think most of my visiting committee colleagues are—that another problem with paid monitors, whether they deal with complaints or not, is that prisoners simply will not trust the system. With all due respect to David Strang, prisoners do not trust the inspectorate. It is not a personal thing—they just see it as part of the bureaucracy—life has taught them that the bureaucracy is in the business of doing them down, putting them in prison or whatever. Things that they do not like happen to them when they come up against bureaucracy.
Prisoners do not see lay monitors, on the other hand, in those terms. In fact, I think that they sometimes question our sanity when they are told that we do this in our own time and for no pay. Nevertheless, they trust the current lay monitoring system. I think that a hierarchy in which paid monitors oversaw the activities of lay monitors would result in prisoners not trusting any of it.
I see that you want to come in, Mr Strang, but I should say that although I want to hear from the witnesses first, I have a list of committee members who want to ask questions. Just to keep them happy, I will let them know who they are: Margaret Mitchell, Roderick Campbell, Graeme Pearson and Sandra White.
What Joan Fraser has just articulated demonstrates why lay monitors are so important. They will be in and out of the prison much more frequently than paid monitors, and prisoners will get to know and speak to them. I have to say that I do not think that 80 per cent of prisoners are illiterate—some of them are, but I do not think that the figure is as high as that—so I found the SPS’s comments in that respect interesting.
I have heard questions about how my successor will behave, but one question is how the independent monitors will behave. Of course, we all hope and expect them to behave well, but if the current prison monitor role is purely about co-ordination and is voluntary—in other words, one can take note of what they say or not—there is a possibility that some monitors might say, “Well, we hear what you say but we are going to do it this or that way.” Our ambition is to ensure consistent and high-quality monitoring and good recruitment and training, and the proposed draft order as it is written would simply give monitors the authority to implement a good system across the country.
Whatever the faults of the current system, no one has ever doubted monitors’ independence. Indeed, that independence is crucial—particularly with regard to the four paid monitors. Where did that idea come from and what evidence did you get to substantiate the idea that it would be a good move? If, as you have suggested, it might help your department out, might not another option have been to put the finance into providing more support for the inspectorate? Surely that would not compromise independence with the introduction of paid monitors, who by virtue of the fact that they are paid, immediately make the prison community and prisoners suspicious.
It is interesting that you say that the monitors’ independence was never in doubt. You are certainly right with regard to their personal integrity but, as Andrew Coyle has pointed out, they did not meet OPCAT compliance because their funding came through the state prison provider. Because the Scottish Prison Service paid them, they were not seen as being independent of it. I was not in office at the time, but I presume that the attraction of giving oversight of prison monitoring to the inspectorate—which was one of Andrew Coyle’s recommendations and the option that was chosen by the Scottish Government—was that despite what some prisoners might think, the inspectorate is independent of the Scottish Prison Service and the Government—notwithstanding the fact that, ultimately, our funding comes from there—and inspection reports and so on are independent. That is why the proposed draft order says that the chief inspector will provide oversight and co-ordination.
There must be people. I cannot personally co-ordinate 16 groups of prison monitors monitoring 16 prisons—or 15, as it will be next year; we need people to do that. The proposed draft order sets out that they will be the prison monitors and it sets out the functions that they will have. There are suggestions that those people should be purely administrative, but I think that there is strength in having them as monitors. They will understand the prisons. Because they will legally be prison monitors, they will have the power—as the lay monitors will have—to go into any prison to which they are assigned at any time, speak to anyone and look at records. They will have a higher level of credibility and better awareness and knowledge of the business of monitoring, which will be their job, because they will be in and out of prisons. If they are left with a sort of co-ordination role, sitting in an office somewhere in Edinburgh, there is a danger that they will be too remote and distant from prisons.
I will refer briefly to the budget. The reality at the moment is that there is no budget. Governors, almost with grace and favour, will pay the expenses of visiting committee members. I say “grace and favour” because, in carrying out my review, I discovered much inconsistency. Governors could be supportive or not supportive of the work of visiting committees. The total amount that is expended in a financial year by the SPS on visiting committees seems to be about £70,000, although no one is very sure. That is the total for all monitoring of prisons. It is reckoned that local authorities top that up to the tune of about 20 per cent, so the total is about £90,000.
Mrs Mitchell asked where the idea of having paid monitors came from. I lived with the issue for three months a year ago. One of the initial and continuing difficulties that I had was the dynamic nature of the Scottish Government’s proposals, which seemed to develop over a period of months. The Scottish Government started from a position of abolishing visiting committees and replacing them with an advocacy service. I will not go through all the details, because I am sure the committee knows them. Following debates in Parliament, the Government moved from a position of abolition to saying that there would be three paid monitors for the whole country.
When I asked the previous chief inspector how that came about, he told me that he was approached by the Scottish Government, which asked him how he might arrange the system if he was asked to take on responsibility for it. He said that, had he been given a blank sheet of paper, he would have come up with a different model, but he was presented with the fact that Parliament had been told that there would be three paid monitors, and he was then asked how he would manage that, so he came up with the proposal.
Following consultation in the summer of 2012, the Government moved to a proposal for four paid monitors. Initially, the assumption was that the three paid monitors would be former Prison Service people, but the proposal then moved to four monitors, who would not necessarily be Prison Service people. By the time I came on the scene last September or October, the Government had moved on to say that there would be four monitors plus lay people to assist them.
The process has been incremental and there has been no real strategic thought given to it. I made it clear in my report that with an appropriate number of lay monitors—I stress that that would be for each prison—there would be no need for the four paid monitors. However, I recognised the points that the previous chief inspector made—that he could not support or introduce consistency in the system with his present staffing and that he would need to increase his staffing. There is no argument about that, and it is for the chief inspector to say what that increase might be. The problem is that the proposal has been growing and growing without much strategy.
I will, bearing it in mind that we have to finish at 12.45, let some members in.
12:30
I want to switch the emphasis to inspection and monitoring of prisons being complementary but distinct. The SHRC submission points out that if the proposal goes ahead, Scotland will be the only part of the UK in which those functions are combined in one body. What are the panel’s views on how that might work? Professor Coyle suggested in his report a protocol, but that suggestion has not been taken up.
In the course of my review, I interviewed the chief inspector of prisons for England and Wales. I had discussions with him primarily in his capacity as the lead member of the UK national preventive mechanism, but we moved on to his relationship with independent monitors in England and Wales. He made it very clear that he and his predecessors have had a much closer relationship with the independent monitoring boards in England than has been the case in Scotland up until now. He thinks that that relationship is important. At the moment, the boards have their own co-ordinating committee—their own secretariat for the whole country—which deals with recruitment, training, payment and so on. He said that, in these straitened times, he would not necessarily be against his office taking over the secretariat part, but would resist any suggestion that he take over direct authority for the independent monitoring boards, because he sees the two functions as being different.
That is an important point. Monitoring and inspection are two distinct mechanisms. The proposed draft order is not very clear about that distinction; it should be explicit about the existing prerequisite in OPCAT. The SPT 2010 guidelines, which clarify the expectations regarding the establishment of national preventive mechanisms, make it very clear that the national preventive mechanism should complement, rather than duplicate or replace, the control and inspection functions of the Government, as the chief inspector of prisons mentioned. Taken together, the two separate mechanisms—inspection and monitoring—provide an effective means of preserving human rights and preventing abuse in prisons. It is important to note that, in Scotland, the chief inspector of prisons carries out an inspection role as a statutory duty. Therefore, it is vital that the monitoring function does not get lost or subsumed within the inspection work.
I agree whole-heartedly with those comments. In my opening comments, I talked about the difference between inspection and monitoring. In the new world, people who work in the inspection function will not monitor and people who work in the monitoring function will not inspect. The risks of having them in two different organisations are that we might get duplication, information might get lost and communication might not be good. The advantage of having them in one organisation is that they will be co-ordinated and engaged in good communication.
The inspectorate might be concerned about a particular issue across Scotland’s prisons—for example, complaints about healthcare—so it would be possible in regular meetings with monitors to say that, when they go into their prisons, they should take a close look at healthcare because it has been raised as an issue in a number of prisons. It will be possible to inform and co-ordinate without encroaching on their independence—they will still be able to inspect, visit and monitor wherever. Similarly, if lay monitors were concerned about, for example, the quality of food in a number of prisons, action on the issue could be co-ordinated across all 15 prisons so that all the monitors look at that, which could be fed into the work of the inspectorate.
I accept entirely that inspection and monitoring are different functions, but there would be real benefit in better communication and co-ordination of activity than we have at the moment.
In the justification for the changes, there is quite a lot of reliance on removal of organisational barriers, but there is absolutely no information about what those barriers are perceived to be.
At the moment, when a prison inspection is carried out, one of the first things the inspection team does is set up a meeting with the visiting committee to talk to it about any concerns that it has about the prison. Before the Government’s involvement in changing the independent monitoring system derailed the process, the AVC was in the early stages of developing a protocol with the chief inspector, because the visiting committees, the chief inspector and the inspectorate team recognised that we had information that we could share better. There is absolutely no reason why we could not develop that into a proper protocol, as Andrew Coyle’s report suggests. To achieve that, we do not, however, need a massive piece of legislation that will turn the whole thing upside down.
Nor do we need legislation—to pick up an earlier point—to change the way in which the budget for visiting committees is managed. The Scottish Government could have done that at the stroke of a pen; it does not require legislation. It was the Government’s choice to make the Prison Service responsible for the budget or the expenditure of visiting committees.
I am conscious that I have only nine minutes left, so I ask Graeme Pearson and Sandra White to ask their questions together, and I will then let the panel answer them. I will take ladies first, if you do not mind, Graeme.
Of course not.
I ask for short questions.
Thank you, convener. Good morning, or afternoon, or whatever it may be just now.
I think that everyone has said that there is a need for change. You said that yourself, Ms Fraser. The arrangements have to be OPCAT compliant, as Professor Coyle mentioned. I think that there are two issues that people disagree about, which are paid monitors and exactly what the functions are to be. What would we do if we do not have paid monitors? I heard what Lisa Mackenzie said about bringing in prison officers, but I also picked up on what Ms Fraser said about prisoners not being inclined to trust paid monitors—
This is not a short question. It is a narrative. I want a question, because I only have a few minutes.
I am sorry, convener. If we do not have the proposed set-up, what set-up should we have?
Excellent. What do you propose instead? I now call Graeme Pearson.
Thanks for giving me the luxury of asking this question, convener.
Having given evidence in a previous life to an OPCAT committee, I think that there are four aspects: the importance of independence, the effectiveness of the arrangements, the way in which transparency in the arrangements is demonstrated, and regular reporting that the general public can access. Mr Coyle outlined the misty history of where we are just now, and I note that, rather than general support for the proposals, there are very different approaches.
Language is important—
Can we have a question, please? We have five minutes—
Yes. This is an important issue, and that is why I came.
It is important, but—
OPCAT pays a great deal of attention to the language of the legislation. The wording of proposed new section 7B of the 1989 act is interesting. Subsection (3) states that lay monitors must “assist prison monitors”. That has been discussed. Subsection (4) states that lay monitors must
“comply with any instructions issued by a prison monitor”
but only
“take account of any guidance ... published by the Chief Inspector.”
The absence of discretion on the part of the lay visitor to fully report how they see things is a serious issue. Also, a conflict of interests might occur where lay visitors identify issues that have impacts for the inspectorate visitors, and that needs to be dealt with.
“Discuss,” is what I say, and you have exactly six minutes to do so.
Who wants to pop in with comments on an alternative regime or solution, and on conflicts of interests?
The alternative is on the table, as it were. If the chief inspector is going to co-ordinate and support, he will need additional resources to do so. He will undoubtedly have a view on what those additional resources should consist of. He is quite right to say that we might be talking about more than just light-touch co-ordination. There needs to be a degree of ensuring consistency, but that could come from within the inspectorate. It is the paid monitors bit that is causing all the problems.
In relation to Mr Pearson’s point, as I said in my opening comments, the proposed draft order complies with OPCAT. As Mr Quiroz said, OPCAT is not prescriptive—it tells a state party what it should do but not how it should do it. The point is that we have an opportunity to have what the cabinet secretary has called the gold standard in prison visiting, and it would not take much to do that.
Andrew Coyle’s mind is running a minute ahead of mine—or else he is quicker on the buzzer—but that is what I would have said, more or less. Our main point is that we do not see what the paid monitors will add, but we absolutely agree that the inspectorate must have extra resource. We are open to persuasion about exactly what form that might take.
I want to make a quick point about the link with local communities, which we regard as being vital. Currently, prison visitors are drawn from local communities and most prisoners in our prisons will go back into those communities, so having advocates and others who know what it is like inside the prison walls is vital. That is why it is important that that is continued.
I would like to pick up on Professor Coyle’s point about OPCAT compliance. Our statutory duty is to identify and promote the best human rights standards. That is what we have done in our submission and it is what I am trying to do now. We have some recommendations in specific areas. We have some human rights concerns that have not been discussed today because of lack of time. The frequency of the visits of lay monitors is not expressed in the proposed draft order and we think that that needs further consideration. The same is true of independence, the membership selection process, operational autonomy and security of tenure. The draft order is silent on most of those issues and it does not mention the use of the Paris principles—which are human rights standards that are extremely important in this area—the immunity and privileges that are necessary for the independent exercise of the function of the monitors, or the reprisals.
What is proposed is a system that is more expensive, less independent and less effective than the present one. It will cost at least £250,000 a year to run, whereas the present system costs £70,000 or so, and I do not see what we will get for that.
As far as what I would like to see is concerned, the AVC has repeatedly presented to the Scottish Government a robust and independent model that would be operated by lay monitors and connected with the local community. It would be properly supported and would involve properly trained people and a consistent approach to monitoring. All those things have been supported by the AVC since the review of 2005, which, regrettably, was never implemented by the Government, despite its commitment to do so.
Overall, what we want is something that meets the gold standard of independent monitoring, which is not what I and many other people think the Government’s proposal—which is a sort of grudging compliance with international law and human rights—will do.
You have been pretty firm about that.
I am sorry, Mr Strang—you will have to be quite quick.
I will take 30 seconds. The Government’s proposal is more than “grudging compliance”. No one is arguing for the status quo. We have had lay visiting to prisons for more than 100 years. The proposed change is about saying that we can improve what we are doing through consistency, co-ordination, better training and all the things that Diego Quiroz listed to do with appointment and so on.
Andrew Coyle mentioned the independent monitoring boards. I met the head of the secretariat of the independent monitoring boards in London last week, and one of his frustrations is that some independent monitoring boards—he did not name them, so I cannot—go off and do their own thing and take no notice of the guidance and instruction that that office provides. There is that risk with a purely advisory and co-ordinating role. I think that the Government’s solution is a neat one, in that it combines the role of monitoring with provision of support and co-ordination. However, as I said, I do not expect that instructions will have to be issued; we are talking about guidance and how we can work together to ensure that our prisons are properly scrutinised.
You have done really well. We are just 46 seconds over.
We are talking about a proposed draft order, so the committee will have an opportunity to consider it and to report on it. We could even bring it to the cabinet secretary’s attention.
I thank the witnesses very much for their patience and for their accelerated evidence. Although that concludes the evidence session, it does not mean the end of the meeting for the committee.
The next meeting will be held on Tuesday 26 November, when we will continue to hear evidence on the Criminal Justice (Scotland) Bill. We will also hear from a panel on the forced marriage provisions that are covered by the supplementary legislative consent memorandum on the UK Anti-social Behaviour, Crime and Policing Bill.
In addition, as members know, we deferred consideration of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, and we will have two or three Scottish statutory instruments to deal with. Members can add those items to the mêlée of next week’s meeting, which will start at 9.30. Members will be glad to know that there will be only one meeting next week, because they have been so good.
Meeting closed at 12:46.