Watching The Prison Watchdogs

By Professor Nick Hardwick, CBE.

In April 2019, a House of Commons Justice Committee described what it called the ‘sustained crisis’ enveloping prisons in England and Wales.

The manifestations of that crisis – violence, squalor, hopelessness – will be familiar to readers of this handbook so do not need repeating in detail here but to take just a few examples:

  • In the 12 months to March 2018 there were 317 deaths in prison custody of which 87 were self-inflicted – up 18 and 14 respectively from the previous year.
  • In 2018 as a whole there were 55,598 self-harm incidents and 34,233 assaults – both all-time records.
  • The Chief Inspector of Prisons Annual Report for 2017/18 revealed that one in five prisoners spent 22 hours a day or more locked in their cells.
  • The prison service’s own rating system for 2017/18 describes 46% of prisons as being of ‘concern’ or ‘serious concern’.
  • The proven reoffending rate for adults released from custody is 40%. No one should forget that the crisis in prisons spills out into the community.

Individual prison inspection reports paint a picture of what the dry statistics mean.

The current HM Chief Inspector of Prisons’ introduction to a report published in March 2019 of an inspection of HMP Onley – by no means the worst report – described how:

The lack of safety at Onley was all too obvious. From the moment of their arrival, prisoners were exposed to unnecessary risks. Inspectors found that they were placed on an induction wing, in poorly prepared cells, where prisoners who had caused problems elsewhere in the jail were allowed to intimidate and be predatory towards new arrivals… Onley is a training prison and yet there were not enough activity places for the population, and during the inspection we found that only 50% of prisoners were engaged in purposeful activity at any one time.

It is a description that would ring true for many prisons over the last five years.

In the report the Chief Inspector rightly set out his frustration that only a third of the recommendations made at the last inspection two years previously had been achieved. It is an example of legitimate concerns that the prison monitoring and inspection system – what the media love to call ‘prison watch dogs’ – could or should be able to do more to prevent or resolve the prison crisis.

To address that question it is first necessary to understand the complex web of prison oversight that has developed in the UK over many years.

England and Wales have one of the longest established and best resourced prison inspection and monitoring systems in the world. Prison inspection systems in the UK can be said to have their origins in the late eighteenth century. Notable amongst these early developments was the work of John Howard, the prison reformer after whom the Howard League was named. John Howard was appointed as High Sheriff of Bedfordshire in 1773. Amongst his duties was inspection of the local gaols. Rather than delegate the job to an underling, Howard went to see conditions for himself. He was so appalled by what he found he spend the rest of his life travelling around Britain and Europe, knocking on prison gates and demanding to be let in, talking to prisoners, recording what he found and writing reports calling on parliament take action to improve conditions. It is not so different from what prison inspectors do today.

For about two hundred year after that the prison inspection and management system developed, with greater or lesser degrees of independence until in 1981, a recommendation by the May Inquiry established to examine the prison crisis of that time, led to the establishment of the post of Her Majesty’s Chief Inspector of Prisons and the Inspectorate of Prisons (HMIP).

The legislative basis for HMIP is short and simple. It is “to report to the Secretary of State on the treatment of prisoners and the conditions in prisons”. Since 1981, HMIPs’ remit has been extended to immigration detention and other forms of criminal justice custody and successive Chief Inspectors have developed their role and established a reputation for the inspectorate’s independence. That reputation has led to a steady increase in its budget to reach £4.5 million in 2017/18. HMIP’s own inspection teams are supplemented by specialist education inspectors from Ofsted, health inspectors from the Care Quality Commission (CQC) and inspectors from HM Inspectorate of Probation. Together they create by far the best resourced prison inspection system in Europe .

Since 1982 each prison also has an Independent Monitoring Boards (IMB) made up of volunteers from the local community who deal with some complaints and report annually to the Secretary of State on their prisons. They have similar deep historic roots to the inspectorate and developed from bodies that were as much concerned with prison discipline as they were with prison conditions. The Prison and Probation Ombudsman (PPO) was established in 1992 following the Woolf report into the riot at Strangeways Prison in Manchester. The PPO independently investigates complaints that have not been resolved locally and all deaths in prison.

The key recent development in the prison inspection system occurred in 2003 when the UK ratified the United Nations Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment of Punishment (OPCAT). Article 1 of the OPCAT states:

The objective of the present Protocol is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment

The international body is known as the Subcommittee of Prevention of Torture (SPT) and as well as carrying out its own visits it also has oversight of the delivery of the protocol as a whole. National bodies are designated by state parties and are known as national preventive mechanisms or NPMs. Most states created new bodies to be their NPM or gave the role to one national human rights institution but the UK took a unique approach and in 2009 designated 21 existing bodies in England, Scotland, Wales and Northern Ireland who already had inspection and monitoring powers as its NPM. The UK NPM is co-ordinated by HMIP and its remit includes all places of deprivation of liberty – secure hospitals and immigration detention for instance, as well as criminal justice settings. The NPM members who have responsibility for prisons in England and Wales are HMIP, IMBs, the Care Quality Commission (CQC) who work with HMIP to monitor prison health care and the education inspectorate Ofsted, who work with

HMIP to monitor education and training in prisons. HMIP assesses prisons against its own human rights based criteria known as ‘Expectations’. Expectations are based on four healthy prison tests: safety, respect, purposeful activity and rehabilitation and release planning. Different expectations exist for men’s, women’s and children’s prisons. Most prisons are inspected every two or three years, some more or less frequently depending on risk. 90% of inspections are unannounced, they last about eight days and the inspectorate publishes a report with recommendations after every inspection. Peter Clarke, the current Chief Inspector, has agreed an Urgent Notification Procedure with Ministers under which they agree to respond to the most concerning reports within 28 days. The inspectorate has also obtained additional funding to carry out announced reviews of progress to assess progress prisons are making in implementing recommendations.

OPCAT is concerned with ‘torture and other cruel, inhuman or degrading treatment or punishment’ which together may be summarised as ‘ill-treatment’. National and international human rights bodies have not found recent systemic use of torture in the UK as it is tightly defined in the UN Convention Against Torture although individual cases do occur. On the other hand, in my view it is clear that some treatment of prisoners such as prolonged solitary confinement or conditions, such as filth and squalor, do amount to inhuman and degrading treatment. Other aspects of a prison regime such as the provision of good quality health care, purposeful activity and offender management may help create the conditions in which direct ill-treatment is less likely to occur – nevertheless OPCAT requires the prevention of ill-treatment to be an NPM’s first priority.

OPCAT is unusual amongst human rights provisions in that seeks to prevent ill-treatment rather than react to it with investigations or sanctions. The protocol and subsequent guidance issued by the SPT set out the powers and responsibilities an NPM should have to fulfil its mandate. These include:

  • State parties must guarantee in legislation both the functional independence of NPMs and the independence of their personnel. This includes provision for the independent appointment of NPM members with sufficient diversity and expertise. NPM members and personnel must be protected from sanctions for carrying out their duties.
  • The NPM should have the right to make unannounced visits to all places of deprivation of liberty and their installations and facilities. It must be able to speak in private to any person within them and receive any information it deems necessary for the carrying out of their functions.
  • NPMs must be adequately resourced and their functions must be clearly distinguished from those of any wider body of which they are part.
  • NPMs should be able publish reports of its visits and make recommendation aimed at protecting people deprived of their liberty. The state party must enter into dialogue with the NPM about those recommendations. In addition, NPMs must have the freedom to comment on existing or draft legislation.
  • NPMs should operate in accordance with the international standards applicable to human rights institutions (‘The Paris Principles’) and apply international human rights standards in their assessments of places of deprivation of liberty.
  • NPM’s visits should be sufficiently regular, visit teams have appropriate expertise and the NPM have an effective visit methodology sufficient to identify any concerns.
  • Persons deprived of their liberty and others who provide information to the NPM must be protected from sanctions for co-operating with the NPM, irrespective of the accuracy of any information they provide.
  • The state party must disseminate the annual report of the NPM and the NPM must be free to communicate with the SPT

The NPM forms only one part of the oversight of prisons. There are management and audit systems, Ministers and the House of Commons Justice Committee provide political accountability, there is scrutiny from the media, current and former prisoners and their families provide accounts of what is happening, the many voluntary sector organisations working in prisons contribute to transparency. The PPO, inquests and other legal processes attempt to provide accountability for individual incidents. Information from all these sources should be incorporated into the work of the NPM but the NPM’s powers and independence give it a unique role.

Later in 2019 the SPT will visit the UK to evaluate the NPM. Ten years after the UK NPM was designated, this should be seen as a positive opportunity to reflect on its effectiveness and how it could be strengthened in future. In my view there are three broad issues to consider.

First, I believe much of the current prison crisis lies outside the control of individual prisons. Some relates to the long-term structural issues. These include funding cuts to community resources such as mental health and substance misuse provision, a doubling of the prison population since the 1980s, an aged and dilapidated prison estate and a more complex and challenging prison population with a long-term increase in the number of prisoners convicted of sexual or violent offences and a rapidly growing number of older prisoners. More recently a series of political decisions have destabilised the system. These include a reduction in operational staff of 30% between 2010 and 2015 with a disproportionate loss of the most experienced staff and the fragmentation of prison functions with many crucial services being subcontracted to external providers outside the control of individual prison governors. These decisions led prisons ill-equipped to deal with the surge in the availability of new psychoactive substance such as spice, and the debt and violence that accompanied in from about 2012 onwards.

Of course, individual leadership matters. Some prisons whether these storms better than others. There was no excuse for the lack of cleanliness the inspectorate frequently found and there was individual negligence and abuse. Nevertheless, until 2012 the inspectorate was identifying gradual although uneven improvement across the prison estate. I do not think it is credible to lay the decline that followed at the door of individual prisons.

It is in this context the work of the NPM should be seen. Ending the crisis was likely to take sustained effort over time and require a change in political direction.

It is sometimes suggested that the NPM and specifically HMIP should have the powers to enforce its recommendations, in effect become a regulator. In April 2019 for instance, a report by the think-tank the Centre for Social Justice proposed that:

The Government should pass legislation to convert HM Inspectorate of Prisons into a legal regulator with statutory powers to inspect and require enforceable improvement in prison establishments

It is tempting suggestion. I share the current chief inspectors’ frustration about the failure to implement recommendations. But it is a temptation to be resisted.

I do not believe the inspectorate could be a regulator and maintain its independence. Other regulators regulate devolved bodies such as a schools or hospitals in accordance with standards agreed with Ministers. HMIP and the NPM monitor the compliance with human rights standards of a national system under the direct operational control of Ministers. In the end it must be for an elected politician not a non-elected public official to make the decisions. As a regulator the NPM would be reporting on whether prisons were complying with standards set by Ministers, not whether Ministers were running a system that complied with international standards. That might not matter if Ministers’ policies were benign. When Ministers were taking decisions that in my view at the very least exacerbated the crisis, it was important the inspectorate had the independence necessary to describe the consequences of those decision. Alternatively, suppose you made the inspectorate a regulator and guaranteed its independence. What then would you do when a future Chief Inspector was incompetent or decided to regulate for a harsher regime? How would an independent regulator be restrained?

I am also concerned that in a national system a regulator would become another layer of management, replicating or replacing what senior strategic leadership would do. It is noteworthy that in the 1960s the head of the prison service was known as the Inspector General. If we returned to those days, and it was HMIP that was setting out the steps that prisons should take to improve and requiring prisons to follow those steps, who would provide an independent, objective assessment of whether those reforms had been successful? HMIP would be marking its own homework.

Steps are now being taken to address the crisis. New staff are being recruited; substantial investment is being made in the most poorly performing prisons. A range of other measures are also being taken. At the time of writing It is too early to judge the success of these measures but some data and anecdotal evidence suggests they may be having effect. In my view, it was the consistent flow of independent reports charting the effects of then Ministers’ decisions and there use by the media, voluntary groups, MPs and others, that eventually caused the government to reverse its cuts and other decisions. It is now and always has been a tough battle. Compromising the inspectorate’s independence by incorporating it in the management of the system would stifle its voice.

None of that is to say there are not weaknesses in the NPM. Most fundamentally none of the powers and responsibilities of the NPM are set out in legislation and this is likely to be the subject of criticism by the SPT when they visit. At some point a new Chief Inspector of Prisons will be appointed. It is a serious concern that the appointment will be made by Ministers responsible for the prisons that will be inspected. There have been attempts to politicise the appointment process in the past; we should be very wary of that happening again. The Chief Inspector of Prisons’ appointment has to be approved by the Justice Committee. Thankfully they have been vigilant in the past and I urge them to be so in future. It is a concern too that it is the Ministry of Justice that provides the inspectorate’s and IMB secretariat’s budget and accommodation. At the very least, the NPM co-ordination functions should be funded by a separate part of government.

The long history of parts of the NPM such as HMIP and IMBs means they have valuable experience but also ways of working that may not be compatible with their responsibilities as an NPM. When I was Chief Inspector I think we did not always give sufficient priority to preventing ill treatment as opposed to other issues – offender management

functions for instance, which while important were secondary to our NPM role. IMBs sometimes appear to find it difficult to shake off their history as part of the management of prisons and some are defensive about ‘our prison’ and are hesitant about asserting their NPM powers.

IMBs illustrate the dilemma that while increasing the frequency of visits may enable closer scrutiny of progress, it may also lead to over familiarity with an establishment and the normalisation of poor treatment and conditions. On the other hand, in those parts of the NPM such as Ofsted and the CQC where the NPM role is only a small part of the organisation’s overall function, there may be insufficient understanding at senior levels of OPCAT’s requirements.

Putting OPCAT in legislation would not only have the benefit of asserting the NPM’s rights and privileges but also of setting out clearly the responsibilities of the individual parts of the NPM to comply with OPCAT requirements. For those parts of the NM where OPCAT means a different focus from usual business, that would assist the necessary changes. I would also like to see protection for prisoners and staff from sanctions for co-operating with the NPM put into legislation just as protection of whistle-blowers in other sectors is guaranteed. The Scottish Government make compliance with OPCAT part of the legislation which made changes to their independent monitoring boards and this is an approach that could usefully be made in England and Wales.

The SPT visit and the tenth anniversary of the designation of the NPM makes 2019 a good year to review the prison inspection monitoring and inspection system and the role of the UK NPM. The current political turbulence creates both opportunities and risks for such a process. It is going to be an interesting year.

Nick Hardwick, CBE, is Professor of Criminal Justice at the Royal Holloway College, University of London.
Formerly he was Chief Executive Centrepoint 1986-1995; Chief Executive British Refugee Council 1995-2003; Executive Chair Independent Police Complaints Commission 2003-2010; Her Majesty’s Chief Inspector of Prisons for England and Wales/Chair UK National Preventive Mechanism 2010-2016; Chair Parole Board for England and Wales 2016-2018.
Twitter @nicklhardwick2