Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Visit to the United Kingdom of Great Britain and Northern Ireland undertaken from 8 to 19 September 2019: recommendations and observations addressed to the national preventive mechanism

Report of the Subcommittee * , **

Contents

Page

I.Introduction3

II.National preventive mechanism4

A.Set-up of the national preventive mechanism4

B.Legal basis, budget and roles5

C.Activities7

III.Recommendations addressed to the national preventive mechanism8

A.Institutional framework and mandate8

B.Independence9

C.Human and financial resources11

D.Visibility12

E.Cooperation13

F.Methodology14

IV.Next steps18

Annex

List of places of detention jointly visited by the national preventive mechanism and the Subcommittee20

I.Introduction

1.In accordance with its mandate under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment carried out its first visit to the United Kingdom of Great Britain and Northern Ireland from 8 to 19 September 2019.

2.The United Kingdom ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 8 December 1988 and the Optional Protocol thereto on 10 December 2003. In 2014, the State party extended the ratification of the Optional Protocol to the territory of the Isle of Man. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment applies to the United Kingdom, as it is a member of the Council of Europe.

3.The Subcommittee was represented by Daniel Fink (head of delegation), Satyabhooshun Gupt Domah, Suzanne Jabbour, June Caridad Pagaduan Lopez, Kosta Dragan Mitrovic, and Zdenka Perović. The Subcommittee was assisted by three human rights officers and two security officers from the Office of the United Nations High Commissioner for Human Rights.

4.The objectives of the visit were to:

(a)Provide advice and technical assistance to the national preventive mechanism, taking into account the Subcommittee’s guidelines on national preventive mechanisms (CAT/OP/12/5);

(b)Visit a range of places of deprivation of liberty in order to assist the State party in effectively discharging its obligations under the Optional Protocol and to reinforce the protection of persons deprived of their liberty from the risk of torture and ill-treatment.

5.This visit takes into consideration the decisions of the Subcommittee (June 2018) and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (July 2018) to reinforce complementarity and subsidiarity to reflect their respective strengths and added values. In the light of those decisions, and bearing in mind the latter’s visits to the United Kingdom in 2018 and 2019, the Subcommittee visit was focused primarily on the assessment of the functioning of the national preventive mechanism and visits to places of deprivation of liberty not covered by the Committee in its recent visits.

6.The Subcommittee held meetings with the relevant authorities, the Equality and Human Rights Commission and members of civil society. It also held meetings with different entities comprising the national preventive mechanism. This enabled the Subcommittee to understand the mechanism’s working methods, as well as its achievements and challenges. Moreover, to observe the mechanism’s work in practice, the Subcommittee participated in joint visits to several places of deprivation of liberty chosen by the mechanism (see annex). The visits were led by the national preventive mechanism, with the members of the Subcommittee acting as observers.

7.The present report contains a series of recommendations for the national preventive mechanism of the United Kingdom. The recommendations are made pursuant to the Subcommittee mandate to advise and assist the national preventive mechanisms, in accordance with article 11 (b) (ii) and (iii) of the Optional Protocol.

8.The Subcommittee requests that the national preventive mechanism reply within six months of the date of transmission of the present report, giving an account of the actions taken and a road map for full implementation of the recommendations.

9.The report remains confidential unless the national preventive mechanism decides to request the Subcommittee to make it public, in accordance with article 16 (2) of the Optional Protocol. The Subcommittee firmly believes that the publication of the present report would contribute to the prevention of torture and ill-treatment in the State party. Therefore, the Subcommittee recommends that the mechanism request the publication of the present report in accordance with article 16 (2).

10.Moreover, the Subcommittee draws the national preventive mechanism’s attention to the Special Fund established under the Optional Protocol. Only recommendations contained in those Subcommittee visit reports that have been made public can form the basis of applications to the Fund, in accordance with its published criteria.

11.The Subcommittee will send a separate confidential report to the authorities of the United Kingdom, which will include recommendations addressed to the State party on its obligations regarding the effective functioning of the national preventive mechanism, as well recommendations concerning the protection of persons deprived of their liberty against torture and ill-treatment.

12.The Subcommittee wishes to express its gratitude to the national preventive mechanism for its cooperation and the facilitation of the visit.

II.National preventive mechanism

A.Set-up of the national preventive mechanism

13.On 31 March 2009, the United Kingdom designated, through a ministerial statement to Parliament, 18 existing oversight bodies to form the national preventive mechanism. In the statement, the Minister of State (Ministry of Justice) indicated that the requirements of the Optional Protocol would be fulfilled in the United Kingdom by the collective action of existing inspection bodies. In December 2013 and January 2017, three other institutions were added to the mechanism, bringing the membership to a total of 21 bodies or groups.

14.The current composition of the national preventive mechanism is as follows:

(a)For England and Wales:

•Care Inspectorate Wales

•Care Quality Commission

•Children’s Commissioner for England

•Her Majesty’s Inspectorate of Prisons

•Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services

•Healthcare Inspectorate Wales

•Independent Monitoring Boards

•Independent Custody Visiting Association

•Lay observers

•Office for Standards in Education, Children’s Services and Skills

(b)For Northern Ireland:

•Criminal Justice Inspection Northern Ireland

•Independent Monitoring Boards (Northern Ireland)

•Northern Ireland Policing Board (Independent Custody Visiting Scheme)

•Regulation and Quality Improvement Authority

(c)For Scotland:

•Care Inspectorate

•Her Majesty’s Inspectorate of Constabulary in Scotland

•Her Majesty’s Inspectorate of Prisons for Scotland

•Mental Welfare Commission for Scotland

•Scottish Human Rights Commission

•Scottish Police Authority (Independent Custody Visiting Scheme)

(d)For the whole of the United Kingdom:

•Independent Reviewer of Terrorism Legislation

15.Through the designation of numerous pre-existing bodies to form the national preventive mechanism, the Government of the United Kingdom wished to put to good use and continue an established tradition of independent inspection of places of detention. As a result, the mechanism, with its 21 bodies and groups, is unique and complex. Characterized by a great diversity of entities, the mechanism comprises bodies with explicit mandates in various detention settings and bodies with broad mandates in specific territorial jurisdictions of the United Kingdom. Another particularity of the mechanism is that it comprises lay and professional bodies.

16.Some members of the national preventive mechanism monitor places of detention as just one part of a much wider regulatory role, while others are dedicated to inspection functions only. For example, the Regulation and Quality Improvement Authority and the Care Quality Commission regulate and inspect the quality of all health and social care services in Northern Ireland and England, respectively. This includes patients detained under mental health legislation, as well as the health services provided in prisons and police stations. The Office for Standards in Education, Children’s Services and Skills inspects and regulates all services providing education and skills (e.g., schools and colleges, and education provision in prisons) as well as services that provide care for children and young people, including secure children’s centres and secure training centres. On the other hand, the key role of Her Majesty’s Inspectorate of Prisons, the Independent Custody Visiting Association, the Independent Monitoring Boards, Her Majesty’s Inspectorate of Prisons for Scotland and lay observers is to provide independent scrutiny of the conditions and treatment of persons deprived of liberty in a variety of detention settings.

17.The inevitable consequence of the government decision that the functions of the national preventive mechanism were to be fulfilled collectively by 21 individual bodies is that one place of deprivation of liberty can be visited by several of the mechanism’s bodies. For instance, at least three bodies (Independent Monitoring Boards, the Care Quality Commission and Her Majesty’s Inspectorate of Prisons) have the mandate of monitoring prisons, but their methodologies are not harmonized in that regard. Lay monitoring bodies perform day-to-day visiting functions, and have a more continuous presence in places of detention, while inspectorates perform their functions periodically, using risk-based criteria.

18.The Government of the United Kingdom designated Her Majesty’s Inspectorate of Prisons (England and Wales) to coordinate the members of the national preventive mechanism. The mechanism’s annual report is presented to Parliament by the Lord Chancellor and Secretary of State for Justice.

B.Legal basis, budget and roles

19.While each of the 21 bodies has a legal basis of its own, the national preventive mechanism as a collective entity does not have a separate legal basis in the United Kingdom. Indeed, no legislation or other formal document or process was created or enacted to establish the mechanism and, to date, ministerial statements to Parliament constitute the only basis for the national preventive mechanism designation. Furthermore, only 2 of the 21 members of the mechanism have a specific reference to their Optional Protocol mandate written into the legislation that created them.

20.The Subcommittee has raised on several occasions the issue of the lack of legislation that sets out both the mandate of the national preventive mechanism itself and that of its constituent bodies. Since 2009, the mechanism has been raising similar concerns. Likewise, the Committee against Torture has recommended that the United Kingdom set out in legislation the mandate and powers of the secretariat and members of the mechanism and guarantee their operational independence (CAT/C/GBR/CO/6, para. 17).

21.With regard to financial independence, the mechanism’s coordination is funded in part by the Ministry of Justice, through Her Majesty’s Inspectorate of Prisons, and in part by its members, who make annual contributions. For the year 2017/18, the Inspectorate received a nominal income of £61,155 for mechanism coordination from the Ministry of Justice and £19,500 from members of the mechanism. In 2019, the mechanism’s budget from the Ministry of Justice amounted to £135,000.

22.Given the multi-body complexity of the mechanism, working across the four nations of the United Kingdom, the mechanism established a working relationship with the other bodies through a mechanism secretariat, a Chair and a steering group, holding business meetings for the mechanism members.

23.The secretariat was created within Her Majesty’s Inspectorate of Prisons, taking into account the Inspectorate’s coordinating function. The secretariat aims at promoting and developing cohesion and a shared understanding of the Optional Protocol among members of the mechanism. Given the scale and complexity of the national preventive mechanism’s multi-body structure, the coordination function is essential to the implementation of the Optional Protocol. The mechanism’s secretariat also supports the Chair and the steering group.

24.In 2016, the members of the mechanism appointed, by agreement, an independent Chair from outside the mechanism membership to advise and support the mechanism in fulfilling its Optional Protocol mandate. The term in office of the mechanism’s Chair was renewed in October 2017 for a period of four years. The Chair reports to the mechanism’s steering group and members, and works closely with the mechanism’s secretariat. However, a lack of legislation means that the Chair has no official legal status, job description, powers or immunities and is thereby inhibited in fully discharging the mechanism’s Optional Protocol obligations.

25.The steering group facilitates decision-making and joint work, and also represents the interests of the national preventive mechanism as a whole. The steering group is comprised of five members, elected by mechanism members. Members of the steering group are appointed for an initial term of two years and are limited to two two-year terms.

26.The mechanism’s twice-yearly business meetings are its main forum for members to share their findings, best practices, experiences and lessons from monitoring different types of detention in each jurisdiction. The mechanism’s business plan is agreed and monitored at these meetings and other decisions that require the input from all members are taken.

27. The Subcommittee is concerned that the current set-up regarding the national preventive mechanism and its members does not fully comply with the Optional Protocol . The Subcommittee further addresses this issue below and supports, as a matter of priority, the mechanism ’ s efforts and initiative to bring about the necessary legislative changes to bring the United Kingdom in to full compliance with the Optional Protocol .

C.Activities

28.The Subcommittee notes the extent of the work being done by the 21 members of the national preventive mechanism across the four nations of the United Kingdom. According to the figures provided by the mechanism,between 1 April 2017 and 31 March 2018, dedicated volunteers conducted at least 66,000 monitoring visits per year to prisons, young offender institutions, immigration detention facilities and places of police and court custody, as well as to observe escorts; and inspectors carried out at least 1,500 inspections across the United Kingdom.

29.In addition to visits to monitor places of deprivation of liberty, the national preventive mechanism carries out coordination and promotional activities under its Optional Protocol mandate. For example, all members complete an annual self-assessment of their Optional Protocol compliance, using a self-evaluation matrix developed by the Subcommittee.

30.The mechanism has established four subgroups to provide forums for sharing information, strengthening monitoring approaches and coordinating responses to government policy developments. There are three thematic subgroups (children and young people; police; and mental health) and one subgroup for managing mechanism members in Scotland.

31.In accordance with article 19 (c) of the Optional Protocol, the national preventive mechanism submits proposals and observations concerning existing or draft legislation. Moreover, it has published data showing the number of people detained in different settings and in different jurisdictions, with a view to addressing the absence of readily available or comparable data. In 2017, after conducting joint research, the mechanism published comprehensive guidance on monitoring isolation in detention. The mechanism has contributed to numerous policy discussions, government consultations and parliamentary inquiries relevant to the prevention of ill-treatment.

32.The mechanism cooperates closely with many other national preventive mechanisms and networks of such mechanisms in the region. It also maintains regular contact and ongoing dialogue with the Subcommittee, in accordance with paragraph 40 of the Subcommittee guidelines on national preventive mechanisms.

33. In accordance with the Subcommittee guidelines on national preventive mechanism s, the Subcommittee recommends that the national preventive mechanism continue using its resources in such a way as to ensure that places of deprivation of liberty are visited in a manner and with sufficient frequency to make an effective contribution to the prevention of torture and other cruel, inhuman or degrading treatment or punishment. Furthermore, the mechanism is encouraged to continue making proposals and observations to the relevant State authorities regarding existing and draft policy or legislation relevant to its mandate. In doing so, the mechanism should ensure that it speaks in one voice as the preventive body of the United Kingdom , in accordance with the Optional Protocol .

III.Recommendations addressed to the national preventive mechanism

A.Institutional framework and mandate

34.The national preventive mechanism has no separate legal identity. This lack of a formal legislative text establishing the mechanism has long been a matter of concern to the Subcommittee, a concern shared with both the mechanism and the State party. The Subcommittee’s considered view is that the situation of the national preventive mechanism of the United Kingdom has a complexity that impairs its effectiveness, and the lack of proper legislation has a major part to play in its inadequacy. For that reason, the Subcommittee urges the mechanism to continue working with the State party to obtain an appropriate formal legislative basis with a clear definition of the mechanism’s powers and its functions, its roles and responsibilities so that the State party may effectively discharge its obligations and preventive mandate under the Optional Protocol.

35.In this connection, the Subcommittee appreciates the national preventive mechanism’s self-awareness, proactive advocacy and pursuit of legislative changes. The Subcommittee concurs with the mechanism’s view that the lack of legislation has significant consequences, not only in terms of the mechanism’s formal compliance with the Optional Protocol, but also for its credibility and effectiveness. The Subcommittee also shares the mechanism’s concern that the powers and duties of the Chair of the mechanism and the coordinating role of Her Majesty’s Inspectorate of Prisons are yet to be recognized in legislation.

36.Furthermore, there is a need to amend the statutes of the individual bodies entrusted with national preventive mechanism work, as the specific national prevention mechanism-related activities are not necessarily given the importance they deserve when members are working within their statutory mandate.

37.The Subcommittee welcomes the dialogue between the Ministry of Justice and the national preventive mechanism on the draft protocol regarding regulations about the mechanism and notes that the draft protocol includes provisions for the mechanism to issue statutory guidance with regard to amendments of the statutes of the member organizations. Nevertheless, the Subcommittee considers that the elaboration of the protocol is no substitute for a proper legislative text for the mechanism. The Subcommittee is concerned that procrastination in the enactment of proper legislation could have a negative impact on all aspects of the functions of the mechanism, including its independence.

38. The Subcommittee considers that adoption of legislation regarding the national preventive mechanism and its members is necessary in order for the United Kingdom to fully comply with its international obligations under the Optional Protocol. The duties and powers of the mechanism, led by an independent Chair and with formal recognition of the mechanism ’ s coordinating role, are to be embedded in a legislative text, and explicit references to national preventive mechanism and Optional Protocol responsibilities should be incorporated into the members ’ own statutes. The Subcommittee fully supports the efforts of the national preventive mechanism in that regard and will continue to raise these concerns with the State party.

Access to military detention facilities and independent oversight in overseas territories and Crown dependencies

39.The Subcommittee notes that, since its creation, the national preventive mechanism has made efforts to identify areas of detention that were not subject to the independent scrutiny of its members. Currently, the mechanism’s monitoring covers a wide range of places of deprivation of liberty, including court cells, and transportation, deportations and detention facilities under the terrorism legislation.

40.The Subcommittee was informed that Her Majesty’s Inspectorate of Prisons inspects military facilities in the United Kingdom every two to three years. This includes the Military Corrective Training Centre and service custody facilities, which are cells where navy, air force and army police hold military personnel who have been arrested. However, the visits take place only upon agreement and by invitation from the armed forces, which is incompatible with the Optional Protocol’s purpose and objectives.

41.Moreover, no member of the national preventive mechanism has explicit powers to visit extraterritorial places of detention, including temporary detention facilities set up by the State party’s military abroad, the overseas territories and Crown dependencies of the United Kingdom, which leaves a significant territorial gap in the State party’s obligation to protect persons deprived of their liberty from torture and ill-treatment.

42.The Subcommittee notes the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment regarding the role of the national preventive mechanism in overseas territories, ensuing from the Committee’s visit to the sovereign base areas on Cyprus. The Committee called on the authorities of the United Kingdom to adopt specific legislative powers for the mandate of the national preventive mechanism, which should include the automatic right to visit all places of deprivation in the United Kingdom, as well as those in British overseas territories and the sovereign base areas .

43.The Subcommittee emphasizes that, in order to meet the requirements of the Optional Protocol, a national preventive mechanism must have the ability to conduct unannounced visits to all places of detention, and to have access to all information referring to the treatment of detainees and the conditions of their detention. In that regard, the Subcommittee fully supports the mechanism in its efforts to communicate its concerns about the limitations on access to military detention facilities, as well as the lack of independent monitoring of places of deprivation of liberty across all of the State party’s overseas territories and Crown dependencies.

44. The Subcommittee recommends that the national preventive mechanism continue actively engaging with the State p arty to gain unhindered and immediate access to all places of deprivation of liberty, defined in article 4 of the Optional Protocol . In this connection, the Subcommittee emphasi z es that the State is to allow visits to any place under its jurisdiction and control where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence. Therefore, any place in which a person is deprived of liberty or where a person might be deprived of liberty should fall within the scope of the national preventive mechanism.

45.The Subcommittee would welcome the mechanism’s views on workable solutions to ensure appropriate preventive oversight across the overseas territories and Crown dependencies. The Subcommittee will raise these concerns in its report to the State party.

B.Independence

46.The independence of the national preventive mechanism and its members is a fundamental principle that enables mechanisms to effectively prevent torture and ill-treatment. In this connection, the Optional Protocol requirements refer specifically to the mechanism’s functional independence, the independence of its personnel and its financial autonomy.

1.Functional independence

47.In order to guarantee functional independence, the national preventive mechanism must have a clear legislative basis that guarantees its structural autonomy from all government branches. While the choice of a national preventive mechanism model is the prerogative of a State party, depending on the political and sociocultural characteristics of the country, independence constitutes the key feature that every mechanism, irrespective of its form, must possess.

48.The Subcommittee appreciates that the national preventive mechanism of the United Kingdom has been engaging in a self-critical and reflective exercise and echoes its concern that guarantees of independence remain one of the key challenges of the mechanism. The Subcommittee notes that, in January 2017, the mechanism’s Chair wrote to the Ministry of Justice highlighting the lack of statutory guarantees of independence for the mechanism and its members. In its ninth annual report, the mechanism indicated that the lack of a clear legislative basis for the national preventive mechanism of the United Kingdom resulted in the lack of statutory guarantees of independence.

49.As already mentioned in paragraph 35 above, the Subcommittee unequivocally supports the national preventive mechanism’s views. It is worth mentioning that, in a letter to the mechanism, dated 29 January 2018, the Subcommittee stated the following:

The experience of the SPT is that the situation of an NPM remains precarious without its being underpinned by a clear legislative basis. We have seen, unfortunately, too many examples of cases in which States have put pressure on NPMs, directly or indirectly, which they have not been able to challenge for the want of a clear basis on which to do so. Practical effectiveness is dependent on functional independence, and the independence is threatened when the NPM is vulnerable to political pressure or political exigencies. The role of the SPT in relation to NPMs includes ensuring that they are protected from such pressures .

50. The functional independence of a national preventive mechanism supposes that a mechanism cannot be subject to any orders or instructions by any State authorities. The Subcommittee recommends that the national preventive mechanism continue proactively raising with the authorities of the United Kingdom the need for robust legislation as an essential safeguard for the mechanism ’ s independence, effectiveness and credibility, both nationally and internationally.

2.Independence of national preventive mechanism personnel

51.In addition to the lack of general national preventive mechanism legislation, the Subcommittee was informed that two members of the mechanism – the Independent Monitoring Boards and the lay observers – had raised concerns with the authorities of the United Kingdom regarding the lack of statutory underpinning for the proper discharge of their national preventive mechanism mandate in line with the principles of independence and good governance. In addition, in January 2017, the Chair set out his concerns that the Independent Monitoring Boards secretariat continued to be “line managed by civil servants of the Ministry of Justice, which also has operational responsibility for most of the places IMBs monitor”.

52.The Subcommittee reiterates that the independence of the national preventive mechanism, both actual and perceived, should be fostered by a transparent process of selection and appointment of members who are independent and do not hold a position that could raise questions of conflict of interest. In that regard, the Subcommittee notes that the Chief Inspector of Her Majesty’s Inspectorate of Prisons is appointed by the Secretary of State upon recommendation from the Ministry of Justice. Given that the Inspectorate functions as the coordinating body of the national preventive mechanism, the perceptions of State involvement could be detrimental to the credibility of the whole mechanism and undermine public confidence.

53.Furthermore, the Subcommittee also wishes to bring attention to the question of secondments within the members of the mechanism. The Subcommittee takes note of the mechanism’s guidance entitled “Ensuring the independence of NPM personnel: guidance for members of the UK National Preventive Mechanism”, which sets out the intention of members to work progressively towards a reduction in reliance on seconded staff for national preventive mechanism work. The guidance addresses a 2013 recommendation of the Committee against Torture, which called on the United Kingdom to end the practice of seconding individuals working in places of deprivation of liberty to national preventive mechanism bodies (CAT/C/GBR/CO/5, para. 14). However, the Subcommittee is of the view that more needs to be done by the staff members of the mechanism to ensure that they do not hold or acquire positions that could potentially raise questions of conflict of interest or dual loyalty.

54. The Subcommittee recommends that the national preventive mechanism continue striving to achiev e functional independence, rais e awareness of the obligation of independence set out in the Optional Protocol and advocat e for a robust legislative basis that ensures statutory guarantees of the mechanism ’ s independence.

55. The Subcommittee urges the national preventive mechanism to continue taking internal measures to ensure that the independence of its personnel is rigorously safeguarded and constantly reinforced, inter alia, by reducing the members ’ reliance on staff seconded from places of deprivation of liberty and enhancing the transparency of the selection process of the mechanism ’ s personnel.

C.Human and financial resources

56.The Subcommittee observes that the national preventive mechanism of the United Kingdom, with its 21 members, covers a vast variety of places of deprivation of liberty, and that it can count on the financial and human resources of the member organizations to carry out joint activities.

57.Nevertheless, the Subcommittee was informed that some members of the mechanism faced challenges with the budgets necessary to carry out their national preventive mechanism functions. This is due to a range of factors, including recent budget cuts and budgets for the mechanism’s work within the 21 bodies not being ring-fenced to carry out preventive work and thus being allocated alongside competing priorities. The Subcommittee is concerned at the information contained in the mechanism’s annual report for 2017/18 that several members of the national preventive mechanism reported that they would be required by the Government of the United Kingdom to make cuts to their budgets.

58.In addition, and while noting that the staffing for the national preventive mechanism secretariat recently increased from two part-time roles to one part-time Head of Secretariat and one full-time Assistant Coordinator, the Subcommittee believes that resources provided to the secretariat remain insufficient, the more so considering the complex institutional structure of the mechanism. In this respect, the Subcommittee notes that in its annual report for 2017/18, the mechanism stated that the lack of additional resources for its secretariat impeded the realization of the full potential of joined-up work across member organizations, four nations and the different detention settings.

59.The Subcommittee considers that budget cuts to members of the national preventive mechanism may jeopardize their preventive work and, as a result, weaken their execution of Optional Protocol-mandated functions. The Subcommittee also believes that the insufficiency of the resources available for the mechanism’s secretariat to coordinate the work of a highly complex multi-body mechanism and ensure their activities are focused on prevention represents a serious constraint.

60. The Subcommittee recommends that the national preventive mechanism continue to engage in a proactive discussion with relevant authorities, in particular Parliament and the Ministry of Justice, requesting an increase in financial and personnel resources, in particular for the mechanism ’ s secretariat.

61. Bearing in mind that the Optional Protocol is unequiv ocal on the need for the State p arty to allocate specific resources to the national preventive mechanism (art. 18 (1) and (3)), so as to guarantee the operational independence of the mechanism , and that the Subcommittee guidelines on national preventive mechanism s indicate explicitly that the mechanism should enjoy complete financial and operational autonomy , the Subcommittee recommends that the national preventive mechanism as a whole, as well as the 21 bodies composing the mechanism , advocate for a specific earmarked allocation of funds to the functioning of the mechanism .

D.Visibility

1.Collective identity of the national preventive mechanism

62.The national preventive mechanism of the United Kingdom is a unique model, comprising 21 diverse entities that seek to collectively implement the Optional Protocol-mandated role of prevention of torture. While the designation of pre-existing institutions as the national preventive mechanism is a valid option and, ultimately, the prerogative of the State party, the Optional Protocol’s pioneering nature is such that it requires profound changes in the work of the pre-existing entities to ensure that national preventive mechanism work becomes an integral part of their activities, uplifted from their “business as usual” pattern.

63.The execution of national preventive mechanism work by 21 different bodies has its strengths and challenges. For example, it minimizes gaps in protection from torture by ensuring that places of detention are regularly visited by more than one monitoring mechanism. However, this “layered” structure of monitoring may present a risk of duplication and a risk of discrepancy in findings. Therefore, a multi-body national preventive mechanism requires strong coordination and a well-articulated strategic direction for the mechanism as a whole, in order to achieve results in terms of prevention of torture.

64.The Subcommittee appreciates the information provided by the national preventive mechanism about collaboration between different mechanism bodies and examples of how this collaboration works in practice. For instance, in Northern Ireland, Criminal Justice Inspection Northern Ireland and Her Majesty’s Inspectorate of Prisons prepared in 2009 a specific protocol for collaboration in joint prison inspections. Similarly, the Independent Custody Visiting Association and the Independent Reviewer of Terrorism Legislation have built stronger linkages between their respective tasks related to those detained under the Terrorism Act. The Subcommittee also notes with appreciation the mechanism’s webpage and Twitter account.

65.However, a number of stakeholders mentioned to the Subcommittee in the course of its visit that preventive focus is not always prioritized in the work of the individual bodies of the national preventive mechanism. Moreover, the Subcommittee observed that the authorities in charge of places of deprivation of liberty, as well as persons deprived of liberty and civil society, often perceive the work of Her Majesty’s Inspectorate of Prisons, Independent Monitoring Boards, the Regulation and Quality Improvement Authority, the Independent Reviewer of Terrorism Legislation and other national preventive mechanism components as unrelated and not as parts of the same collegial body.

66.The Subcommittee is conscious that the visibility of the national preventive mechanism of the United Kingdom is a complex matter that also requires action from the State party, as the lack of specific incorporation of the national preventive mechanism’s role into members’ statutory requirements affects the delivery of the mechanism’s overall mandate in practice. At the same time, the Subcommittee believes that more needs to be done by the mechanism itself to strengthen its collective identity.

67. The Subcommittee recommends that the national preventive mechanism reflect on manners in which it could build the identity of a collegial body, made up of individual entities with different backgrounds and expertise. For example, during monitoring visits, the mechanism could use a standard presentation to persons deprived of liberty and authorities in charge of custodial settings, emphasizing the collective implementation of the Optional Protocol mandate. In addition, the mechanism could consider developing its “ brand ” , through an emblem or distinctive dress code or by designing a strategic communication campaign.

68. In light of the above, the Subcommittee recommends that the national preventive mechanism increase its institutional visibility as a collegial body, design a strategy for raising public awareness of its Optional Protocol -mandated tasks and continue striving for stronger coordination and more cohesive work through strategic measures. These measures should reinforce the mechanism ’ s common values, in order to build the collective identity as one national preventive mechanism of the United Kingdom , through a proper legal framework.

2.Annual report

69.The Subcommittee notes with appreciation that the national preventive mechanism contributes input on crucial detention-related issues, and submits proposals and observations on existing or draft legislation. It also welcomes the annual reports prepared by national preventive mechanism bodies and the mechanism as a collective body.

70.However, the Subcommittee notes that the Lord Chancellor and Secretary of State for Justice presents the mechanism’s collective annual reports to Parliament. In this connection, the Subcommittee shares the mechanism’s view that mechanism itself should be accountable to Parliament. In that sense, presentation of the mechanism’s findings to Parliament by representatives of the executive branch is contrary to the mechanism’s line of public accountability, which is to assess independently and impartially how the Government complies with its domestic and international human rights obligation to prevent torture. This would also help to strengthen the mechanism’s visibility, as mentioned in the paragraphs above.

71. The Subcommittee recommends that the national preventive mechanism continue to advocate for the adoption of legislation that will enable it to present its annual report in Parliament directly and to be accountable to Parliament for the implementation of its mandate.

E.Cooperation

72.The Subcommittee notes over 10 years of exchanges between the Subcommittee and the national preventive mechanism of the United Kingdom, in the form of correspondence, annual reports and meetings. The Subcommittee hopes that the visit to the United Kingdom and the present report will further contribute to the cooperation between the Subcommittee and the mechanism in the spirit of constructive dialogue. The Subcommittee also notes with appreciation that the mechanism’s business plan includes the objective of increasing the number of references to the Optional Protocol and the national preventive mechanism role in core documents of the mechanism’s bodies.

Relationship between the national preventive mechanism and civil society organizations

73.Communication and collaboration between national preventive mechanisms and civil society organizations is crucial in torture prevention. Bearing this in mind, the Subcommittee recommended that national preventive mechanisms establish sustainable lines of communication with such organizations. Similarly, the reference to the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles) in article 18 of Optional Protocol indicates that national preventive mechanisms are to maintain good relationships with other bodies, including non-governmental organizations (NGOs).

74.The Subcommittee is concerned that at the meetings held with civil society organizations some representatives expressed dissatisfaction with the current level of cooperation with the national preventive mechanism. Moreover, in the meeting of the Subcommittee with national preventive mechanism bodies, representatives of Her Majesty’s Inspectorate of Prisons and the Children’s Commissioner for England alluded to the need to keep distance to ensure the independence of the work of the national preventive mechanism. The mechanism’s secretariat, however, admitted that the mechanism’s collaboration with NGOs could be improved, but argued that the current level of collaboration is a reflection of a lack of funds.

75.The Subcommittee emphasizes the knowledge that civil society organizations have of places of deprivation of liberty. Such organizations include victims’ associations, academic institutions and medical and bar associations, in addition to NGOs. They also fulfil an important role in scrutinizing the ways in which a national preventive mechanism conducts its work.

76. The Subcommittee recommends that the national preventive mechanism of the United Kingdom take steps to enhance its cooperation and channels of communication with civil society organizations , through an annual forum or other avenues, and strive to maintain a proactive dialogue with civil society. Regarding concerns expressed by the mechanism , the Subcommittee recommends that the mechanism involve NGOs in its work in a transparent manner and strictly from the perspective of prevention of torture.

F.Methodology

77.The Subcommittee observed that the national preventive mechanism’s professional inspectorates and the volunteer bodies are well regarded and influential. Their work is well structured, evidence based and grounded in protocols, surveys, and interviews with persons deprived of liberty and with staff in charge of custodial settings.

78.The Subcommittee also wishes to acknowledge the comprehensive monitoring carried out by the national preventive mechanism as a whole. The Subcommittee recognizes that unannounced, frequent and unhindered visits to places of deprivation of liberty by the large number of institutions composing the mechanism do have a positive and durable impact on preventing torture and other cruel, inhuman or degrading treatment or punishment.

1.Preventive focus of national preventive mechanism work

79.The Subcommittee considers that monitoring visits carried out by national preventive mechanism bodies are being largely geared towards needs assessments of persons deprived of liberty, and aimed at ensuring that places of deprivation of liberty, including psychiatric facilities, comply with the existing national standards. In this connection, the Subcommittee believes that the preventive focus of visits conducted by the mechanism to places of deprivation of liberty must be strengthened. This is particularly relevant for those bodies of the mechanism that combine preventive and regulatory mandates (the Care Quality Commission and the Office for Standards in Education, Children’s Services and Skills).

80.The Subcommittee brings to the attention of the relevant authorities the document outlining the approach of the Subcommittee to the concept of prevention of torture and other cruel, inhuman or degrading treatment or punishment under the Optional Protocol (CAT/OP/12/6). In that document, the Subcommittee explained that the purpose of national preventive mechanism work was not only to bring about compliance with international obligations and standards, but also to offer proposals, further to the monitoring visits conducted, as to how to reduce the likelihood or risk of torture or ill-treatment. In this connection, the secretariat should provide guidance to all members of the national preventive mechanism on concrete ways to strengthen their preventive role through, inter alia, training and the publishing of advisory guidance.

81. The Subcommittee recommends that the national preventive mechanism reinforce the preventive focus and integrate a human rights-based approach in its monitoring work, in order to contribute to systemic changes for the protection of persons from torture and ill-treatment.

2.Comments on the methodology of visits conducted by the national preventive mechanism and observed by the Subcommittee

82.In the course of its visit, the Subcommittee observed the methodology of work of Her Majesty’s Inspectorate of Prisons, lay observers, Independent Monitoring Boards, the Independent Custody Visiting Association and Her Majesty’s Inspectorate of Constabulary in Scotland. The remarks and recommendations below are limited to the visits observed by the Subcommittee while accompanying these bodies.

83.Due to the history of individual national preventive mechanism bodies and the absence of legislation on the mechanism, the methodologies of monitoring and the outcomes of these activities vary from one member to the other. Some members demonstrate highly structured and detailed, evidence-based reporting, containing recommendations leading to follow-up visits and a continuous dialogue with the respective authorities, whereas others produce brief informative notes, fed into databases, discussed at the level of units. Some use long, comprehensive surveys on a case-by-case basis, and others develop sequential rather than continuous monitoring work. Some monitoring bodies carry out coordinated joint activities, building on each other’s mandates and competences, others work mostly on their own.

(a)Her Majesty’s Inspectorate of Prisons

84.The Subcommittee observed representatives of Her Majesty’s Inspectorate of Prisons conducting an inspection at Cookham Wood Young Offender Institution. The Subcommittee wishes to commend the Inspectorate for the following:

(a)The visit under observation was carried out by a knowledgeable and professional team;

(b)Interviewers established good rapport with persons deprived of liberty and staff in charge; particular vulnerabilities and the best interests of juvenile offenders were duly taken into account;

(c)There was a strong and well-established visit methodology, with systematic data gathering, protocols and clear definition of roles and functions;

(d)The visits were conducted for two weeks, following in-depth preparation, and there ensued follow-up on key findings and recommendations from previous visits;

(e)There was a multidisciplinary staff at the Inspectorate;

(f)There was close coordination with Independent Monitoring Boards, and participation of the Care Quality Commission and the Office for Standards in Education, Children’s Services and Skills in the inspection, which reinforces the findings and reduces the burden on the administration of prisons, which otherwise would have to accommodate three separate inspections.

85.The Subcommittee commends, in particular, the ability of the Inspectorate team to analyse the implementation of policy on managing and minimizing physical restraint, through random selection of closed circuit television and body-worn camera footage.

86.However, and with the caveat that the Subcommittee accompanied only a small portion of the Inspectorate visit to Cookham Wood, the Subcommittee notes that the prohibition on reprisals was not explicitly mentioned in the interviews conducted by Inspectorate staff. While concurring with the Inspectorate’s assessment that the risk of reprisals was quite low, the Subcommittee emphasizes that prevention of reprisals should be a standard procedure.

(b)Independent Monitoring Boards

87.The Subcommittee accompanied three members of Independent Monitoring Boards and the Independent Monitoring Boards National Chair, Dame Anne Owers, during a one-day visit to Heathrow Immigration Removal Centre.

88.The Subcommittee notes with great appreciation the dedication and commitment of members of Independent Monitoring Boards, who are unpaid members of the community. Moreover, the Subcommittee welcomes:

(a)The continued presence of Independent Monitoring Boards in the Heathrow Immigration Removal Centre and the unhindered access to all premises and persons;

(b)The solid findings contained in the annual report of the Independent Monitoring Board at the Heathrow Immigration Removal Centre for 2018, and recommendations directed to the Home Office and the contractor in charge of the services that pointed at systemic issues, such as indefinite immigration detention, inappropriate use of detention for persons with acute mental-health issues, and concerns regarding the training of staff employed by the contractor.

89.However, the Subcommittee notes that the Independent Monitoring Board was often regarded as a body inspecting the material conditions of day-to-day life in the removal centre, rather than as an interlocutor working for the human rights of persons deprived of their liberty. During the visit to the removalcentre, the Subcommittee noted that some persons deprived of liberty perceived members of the Independent Monitoring Board as insensitive to their concrete allegations (for example, a person alleging recent beatings and presenting injuries to his head, and a man reporting a risk of refoulement). Some went as far as alleging that the Independent Monitoring Board was part of the Heathrow Immigration Removal Centre administration.

90.While acknowledging that the members of Independent Monitoring Boards are not in a position to deal with individual complaints, and also noting the levels of anxiety and frustration of persons awaiting a removal, the Subcommittee suggests that a referral system be envisaged, so as to preserve the reputation of the Independent Monitoring Board as an impartial advocate for the human rights of persons deprived of their liberty.

91.The Subcommittee appreciates the continuing presence of the Independent Monitoring Boards in places of detention, which results in close (often daily) monitoring of a place of deprivation of liberty. However, given that only one or two persons carry out visits, it is challenging for the visiting teams to comply with the Optional Protocol requirement of multidisciplinarity.

(c)Lay observers

92.Lay observers play a crucial role, by monitoring the treatment and conditions of detention of people when they are held in court custody and in vehicles when they are being brought to and from court.

93.The Subcommittee observed the visit of two lay observers to the Westminster Magistrates’ Court. It commends the professionalism, dedication and empathy demonstrated by the lay observers in the course of that visit. In particular, the Subcommittee notes with appreciation that the lay observers verified thoroughly the records of persons deprived of liberty at the Court. Inaccuracies detected were immediately brought to the attention of the custodial staff and it was explained why those might represent a risk of ill-treatment for detainees. Moreover, the lay observers raised appropriately the issue of a minor who was being transferred from the Court handcuffed and escorted by three police officers. When police officers stated that this was a routine procedure, the lay observers emphasized the need for an individualized assessment and the vulnerability and best interests of the child. The Subcommittee notes that, on that occasion, the lay observers had a very clear understanding of their preventive role, beyond a mere compliance check.

94.The Subcommittee notes, however, that a two-person visiting team lacks a multidisciplinary capacity, in particular regarding medical expertise. Furthermore, it is unclear if all lay observers have received training on preventive methodology and have the same high standards as those observed by the Subcommittee.

(d)Independent Custody Visiting Association

95.The Subcommittee observed the work of Independent Custody Visiting Association during its visit to Charing Cross Police Station in London. The Association, funded by the Home Office and police and crime commissioners, leads, supports and represents police and crime commissioner-led visitor schemes designed to check on the rights, entitlements, well-being and dignity of detainees and works to hold Chief Constables to account.

96.The national preventive mechanism role of the Association is to look at the skills of independent custody visitors, who are volunteers, and to ensure that they conduct visits effectively. The custody visitors have the power to access police stations, examine records relating to detention, interview detainees for the purpose of discussing their treatment and conditions, and inspect facilities, including cells, washing and toilet facilities and facilities for the provision of food.

97.While the professionalism of the visiting team of the Association is highly commendable, the Subcommittee notes that training and the multidisciplinary work of volunteers in national preventive mechanism lay bodies represent a challenge, in addition to broader issues regarding national preventive mechanism legislation, the mechanism’s financial and institutional independence and the preventive focus of its work.

(e)Her Majesty’s Inspectorate of Constabulary in Scotland

98.The Subcommittee exchanged views about visits to police stations in Scotland with the representatives of Her Majesty’s Inspectorate of Constabulary in Scotland while visiting Saint Leonard’s Police Station in Edinburgh.

99.The role of the Inspectorate is to monitor the state, efficiency and effectiveness of the Police Service of Scotland; thus, it carries out inspections of police custody facilities, monitoring the treatment of and conditions for detainees. Visits are unannounced and a team is composed of two to four persons, depending on the size of the facility.

100.The Subcommittee was provided with information about the planning of the visits, the methodology of visiting and recent findings. There were 40 cells in this facility, which typically receives about 10,500 detainees a year. The Inspectorate has visited it twice in the past two years. The Subcommittee notes with appreciation the Inspectorate’s knowledge of the Optional Protocol and the meticulous and competent work the Inspectorate carried out, including by reviewing video surveillance coverage, the belongings room, records, and tools used for restraint, such as spit hoods.

101.The Inspectorate representative told the Subcommittee that while the health care of detainees is of concern, the Inspectorate does not have the expertise necessary to monitor the medical aspects of detention and would need to engage with external experts in the future.

(f)Recommendations relating to methodology

102. While noting that the harmoni zation of a great variety of methodologies across 21 bodies of the national preventive mechanism would be difficult to achieve, even in the long term, the Subcommittee recommends that the mechanism strive to ensure that all its members incorporate the requirements of the Optional Protocol into their working methods.

103. The Subcommittee also recommends that the national preventive mechanism conduct a lessons - learned exercise to take st ock of the existing methodology, and continue adjusting and reviewing the working methods and practices of the members of the mechanism as it endeavours to harmonize the methodology and to fulfil its mandate in the most efficient manner.

104. In light of the above, the Subcommittee recommends that the national preventive mechanism of the U nited Kingdom :

(a) E nsure that its working practices are consistent with standards for preventive monitoring;

(b) C onduct training in lay entities of the mechanism to ensure consistency in the methodology of volunteers and lay observers from the moment of selection;

(c) Conduct cross-institution training and exchanges across different national preventive mechanism bodies;

(d) E stablish and use a referral system for individual complaints, which should not be handled by the national preventive mechanism ;

(e) E nhance multidisciplinarity through improved composition of the visiting teams, as well as coordination and join t inspections across national preventive mechanism bodies.

(g)Prevention of reprisals

105.The Subcommittee notes with appreciation that Her Majesty’s Inspectorate of Prisons, the Independent Monitoring Boards and the Prisons and Probation Ombudsman developed a protocol to address any alleged sanctions that come about as a result of their work. However, during the visits carried out jointly with the national preventive mechanism bodies, the Subcommittee noted that neither in the interviews with persons deprived of liberty (in the case of the Inspectorate) nor at the final debriefings with the staff (Independent Monitoring Boards and lay observers) did the national preventive mechanism mention the prohibition of intimidation of and reprisal against persons deprived of their liberty.

106. The Subcommittee recommends that the national preventive mechanism always consider that there is a risk of intimidation, sanctions or reprisals, and therefore take steps to address that risk. In addition to the precautions mentioned above, the mechanism should clearly inform the authorities that reprisal of any kind is impermissible, will be reported to the respective authorities and will be followed up by the mechanism. The manner in which the Subcommittee addresses the issue of reprisals and sanctions is set out in CAT/OP/6/Rev.1.

IV.Next steps

107. The Subcommittee hopes that its visit to the United Kingdom serves as an opportunity to strengthen the role of the national preventive mechanism , its work and its impact in prevention of torture and ill-treatment.

108. Despite the inherited complex nature of the national preventive mechanism , the Subcommittee recommends that the mechanism take proactive steps aim ed at transforming itself into a more cohesive preventive body.

109. The Subcommittee requests that a reply to the present report be provided within six months from the date of its transmission. The reply should respond directly to all the recommendations and requests for further information made in the report, giving a full account of action that has already been taken or is planned in order to implement the recommendations. It should include details concerning the implementation of institution-specific recommendations and concerning general policy and practice.

110. The Subcommittee considers both its visit and the present report to form part of an ongoing process of dialogue. The Subcommittee looks forward to assisting the national preventive mechanism of the United Kingdom in fulfilling its obligations under the Optional Protocol by providing further advice and technical assistance, in order to achieve the common goal of prevention of torture and ill-treatment in places of deprivation of liberty.

Annex

List of places of detention jointly visited by the national preventive mechanism and the Subcommittee

•Visit with the Independent Custody Visiting Association, Charing Cross Police Station, Agar Street, Charing Cross, London WC2N 4JP.

•Visit with the lay observers to Westminster Magistrates’ Court, 181 Marylebone Road, Marylebone, London NW1 5BR.

•Visit with Mental Health Act reviewers to Bracton Centre (multi-ward hospital), Leyton Cross Road, Dartford, Kent DA2 7AF.

•Visit with Independent Monitoring Board members and the National Chair of Independent Monitoring Boards to the Heathrow Immigration Removal Centre.

•Visit with Her Majesty’s Inspectorate of Constabulary in Scotland to St. Leonard’s police station, 14 St. Leonard’s Street, Edinburgh EH8 9QW.

•Visit with Her Majesty’s Inspectorate of Prisons to Cookham Wood Young Offender Institution, Sir Evelyn Road, Rochester, Kent ME1 3LU.