Careful distinction

Perhaps government officials ought to have seen the warning signs. First, there was a consultation paper on plans to abolish visiting committees (VCs) and bring prison monitoring under the oversight of HM Chief Inspector of Prisons, the initial deadline for comments falling on the 13th of the month. Then the Scottish Parliament’s Justice Committee raised concerns that plans to create two new layers of monitoring – paid prison monitors, known as Prison Monitoring Coordinators (PMCs), and unpaid lay monitors, or independent prison monitors (IPMs) – would confuse prisoners, again on a 13th. Now, a second consultation on a revised draft Order has closed this month with responses due in, once more, on the 13th.

In many ways, it sums up a process of effecting substantive prison monitoring changes that has been fraught with complications Already, there have been four consultations – three by government and one by the Justice Committee – undertaken in as many years, an expert review and now two draft pieces of legislation. Implementation is envisaged by mid-2015 should the draft Public Services Reform (Inspection and Monitoring of Prisons) (Scotland) Order 2014 survive parliamentary scrutiny, leaving those involved to speculate on the consequences. 

Training, guidelines, as well as standards of monitoring will be “much more consistent” across Scotland’s prison estate, says Her Majesty’s Inspector of Prisons, David Strang, while concerns that prisons are failing to address can be taken higher up the chain. “We’ll be able to get themes across Scotland much better, so while monitoring and inspecting are different functions – and the Order makes that very clear – they need to be closely aligned and there needs to be some sort of coordination,” he says.

“It could be that if I find independent prison monitors in a number of prisons are coming up with the same concern, whether it is about food or healthcare, or whatever, then that might be something that the inspectorate would want to have a look at, maybe from a thematic inspection point of view. Or it could be that if the inspection team finds some particular issue in two or three prisons, I might then ask the monitors if they could look at that issue and monitor that in their particular prison over the next three months or so.”

Strang’s principal concern – the absence from the first Order of an advisory group to provide expert oversight of monitoring – has since been addressed. However, the Association of Visiting Committees (AVC) has much deeper concerns, summed up by the belief that the boundaries between inspection and monitoring are certain to become blurred. “The requirement for VCs to hear and investigate complaints, which provides prisoners with an independent route to raise concerns, problems and complaints, will be abolished,” say Neil Powrie and Joan Fraser of the AVC in a statement to Holyrood. “Instead, IPMs are to direct prisoners to the internal SPS complaints process, which is flawed and distrusted. While prisoners will retain the right to speak or write to independent monitors for an unspecified purpose, the current legislative protection afforded by the duty on VCs to hear and investigate complaints will be lost, which will be a considerable weakening compared with the current system.”

One major concern is that this process is problematic for the many prisoners who have poor literacy skills. The updated Order says IPMs should support prisoners in processing their complaint or do so personally outwith the formal system “in cases of urgency or where inappropriate to use the complaints process”. However, the AVC has claimed that the Chief Inspector’s ability to ‘instruct’ coordinators and therefore monitors indirectly jeopardises any trust IPMs might have with those in custody, leading to a reduction in complaints as confidence in the process wanes.

The AVCs’ disillusionment with the process has led to many ruling themselves out of involvement in the new system, according to Powrie and Fraser. Meanwhile, one category of volunteer the Inspectorate will be unable to look to in their recruitment of what is believed to be in the order of 150 IPMs are those who have been in custody themselves. “The one thing that is missing to begin with, which I think will change in due course, is that former prisoners can’t apply to be a monitor – that is the initial view but that doesn’t mean that that won’t become possible in the future,” says Pete White, founder and coordinator of the charity, Positive Prison? Positive Futures. He welcomes the proposals, on the whole, as a means to tackle inconsistencies in access given VCs have developed in different ways over time. 

Focus groups he undertook with inmates in four prisons two years ago found the visibility of and connection with VCs “almost negligible”, while staff “generally regarded the visiting committee as being something of a nuisance” due to attitudes and demands on time, adds White. On the other hand, the AVC has warned that a shift away from unannounced visits to a rota agreed between prison governors and co-ordinators curtails independence.

However, there would appear to be broad agreement on one matter – the length of time it has taken to establish these mooted changes. Professor Andrew Coyle, a former Scottish Prison Service governor, whose review laid the foundations for current government proposals, has been left “bemused” over the time it has taken. “The logic of the Order is not immediately obvious,” he says, claiming that, even now, the draft legislation is “silent” on a number of issues explored in his review, despite Strang suggesting that it is “entirely sensible” to leave certain aspects to guidance. 

“It will meet the basic requirements of OPCAT [UN Optional Protocol to the Convention against Torture], undoubtedly, I’ve always been quite clear about that,” Coyle says. “But the government were saying it wanted to go further than that and be a gold standard – there is no way this can be a gold standard. One very practical example is that in the other two jurisdictions of the UK – England and Wales, and Northern Ireland – the equivalent of the independent prison monitors are members of the UK National Preventive Mechanism. The current VC members are not members of the NPM because of their links with the Scottish Prison Service [SPS pays their expenses]. 

“Under the proposed arrangements they will still not be members; their membership will be reflected in the membership of the Chief Inspector, so Scotland will have, arguably, a less dynamic model than the other two jurisdictions. What is being proposed will satisfy OPCAT but it will satisfy the minimum; it’s not the ideal model which we had all been hoping for.”