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Frances Crook's blog · 30 Sep 2020

Strengthening the independent scrutiny bodies

Frances Crook in front of office bookshelves

A consultation is closing with Ministry of Justice stakeholders on strengthening the independent scrutiny bodies through legislation. The consultation itself took the form of an online questionnaire, but I thought it would be good to outline the Howard League’s response on my blog.

The independent scrutiny bodies considered as part of this consultation are the Prisons and Probation Ombudsman (PPO), HM Inspectorate of Prisons (HMIP), HMI Probation, the Independent Monitoring Boards (IMBs), the Lay Visitors (LOs) and the Independent Advisory Panel on deaths in custody (IAP). In addition, the consultation sought views pertaining to the National Preventative Mechanism (NPM), a network of monitoring bodies which was created when the UK signed the Optional Protocol to the Convention against Torture (OPCAT).

The consultation outlined three broad options going forward. The first was to maintain the status quo, which I hope was presented only as a default scenario to be dismissed. There are good reasons to embrace most, if not all, the options available to strengthen the bodies which scrutinise the operations of the penal system in this country.

The second scenario looks at giving statutory status to the PPO, HMIP (the Chief Inspector is mentioned in legislation but not the Inspectorate), HMI Probation (specifically its role in scrutinising the work of youth offending teams), and the other bodies including the NPM.

The Howard League broadly supports this move and indeed there has previously been draft legislation proposing similar options. In particular, the PPO is an anomaly in having no legislative basis compared to the Inspectorates, and yet its role in considering complaints and investigating deaths in custody is one which should carry similar authority and independence. The consultation asks whether the PPO should have a statutory power to access places, people and documents and the Howard League agrees with this proposal.

One of the greatest concerns the Howard League has about the effectiveness of the complaints process is the delays inherent in the current system. The Howard League’s legal team has regularly found that children and young adults have reduced confidence in the system as result. The delays are often down to difficulties in accessing information. Such powers would also enable the PPO to more readily interview complainants which would increase procedural fairness and effective participation in the process.

It is also important that additional powers and responsibilities (such as the recent extension in the PPO’s terms of reference to include investigations into the tragic deaths of babies at Styal and Bronzefield prisons) should also come with additional resources.

Legislation also provides an opportunity to make further provisions. HMI Prisons should be able to consider wider organisational arrangements for prisons, as well as the establishments themselves. For example, the Howard League and the T2A Alliance of which we are a part, is concerned that in recent years the number of designated Young Offender Institutions for 18–21-year-olds has been reduced to three. While it is possible under its existing remit for HMIP to undertake a thematic review of young adults in custody, such a review should be able to take evidence from headquarters officials about the rational for changes in policy in respect of the allocation of young adults to particular types of prison and the development of distinctive programmes aimed at this age group.

HMPPS and other relevant organisations should also be required in legislation to publish responses to prison inspection reports making clear which recommendations are accepted; and an action plan setting out the timescale over which they will be implemented.

There is also an opportunity to put a duty to cooperate into statute between the PPO, HMIP, HMI Probation and the IMBs.

As a corollary to all this, the consultation asks whether the scrutiny bodies should become non-departmental public bodies (NDPBs). NDPB status brings further independence as staff would not be classified as civil servants. It also brings with it additional management and governance structures, which some organisations may find useful and others cumbersome. The Howard League supports in principle any move to NDPB status, but it is up to the individual bodies to decide whether such a move would be the right thing to do in their circumstances.

The consultation then sets out a third scenario involving organisational mergers. One of these seems sensible but the other is contentious. A proposal to merge the IMBs and Lay Observers, under a single chair and national management board, makes sense. Such a merger would give the single body a seamless view of the journey from detainee to prisoner and allow for a proper exchange of information between courts and custody. It would mirror the responsibilities of HMI Prisons. The Howard League supports this proposal, so long as Lay Observers continue to receive different training and support from those serving on IMBs.

The contentious proposal is that England and Wales adopt the so-called ‘Scottish model’ which would see the roles of the IMBs and LOs be absorbed into a beefed-up HMIP, which would then have responsibility for prison inspections, prison monitoring and prison escorts.

The Howard League remains unconvinced. Whilst this merging of bodies might be feasible in a small jurisdiction such as Scotland, it would be unnecessarily bureaucratic and unwieldy within the much larger context of England and Wales. There is also value for a healthy civil society in retaining a diversity of volunteering roles within the oversight of criminal justice.

Finally, a word about the NPM. The lack of statutory status for this network of bodies must now be addressed, as it would recognise the NPM’s importance within international standards of human rights. The fact the UK NPM does not have a statutory basis has been criticised on numerous occasions by bodies such as the UN Subcommittee for Prevention of Torture (SPT), the UN Committee Against Torture (CAT), the European Committee for the Prevention of Torture (CPT) and the justice select committee. As the Howard League supports legislative strengthening for bodies which are members of the NPM, such as HMIP, there would be an opportunity to do the same for the NPM and for its individual members to have their NPM role in the prevention of ill treatment incorporated into statute.

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