By Wendy Sinclair-Gieben, Her Majesty’s Chief Inspector of Prisons, Scotland and Stephen Sandham, Her Majesty’s Deputy Chief Inspector of Prisons, Scotland.

It goes without saying that prison inspection and monitoring bodies should provide important safeguards against breaches of human rights. How far do they really do so in practice? And how do we measure up in Scotland to the test of demonstrating our independence from the Scottish government and making a difference to policy and practice?I will attempt to answer these questions by briefly describing the challenges we face in Scotland, the resources we can marshal to address them, and the political context in which we manoeuvre.

It is starkly clear to anyone working in the justice system in Scotland today that the challenges presently facing the Scottish Prison Service (SPS) are enormous. The Scottish prison system is designed to deal with approximately 7,700 prisoners, but for the last 12-18 months it has regularly had more than8,200 prisoners. Despite the introduction of new legislation to discourage short-term sentences, the evidence so far suggests that these numbers will not decline for at least the next year. This has often left the SPS with 500-700 additional prisoners – the equivalent of a medium sized prison -having to be squeezed into the existing estate. This still contains a number of Victorian prisons that I have officially described as no longer fit for purpose in a modern prison system. The result has been a sustained period of overcrowding, particularly in one antiquated Victorian prison, with the inevitable consequences for prisoners. Single cells have had to be converted into double cells that sometimes breach international standards on space per prisoner. Deeply regrettable restrictions in regime and purposeful activity have had to be imposed, and prisoners have experienced frustrating delays in accessing the rehabilitation programmes that might assist them to secure progression to more open conditions, or support an application to the Parole Board.

These same pressures of overcrowding have contributed to a worryingly high level of staff sickness amongst Scottish prison staff, which in turnhas imposed more pressure on the remaining workforce. And the morale of prison staff has not been helped by media scrutiny which is nearly always negative, and not always for justifiable reasons. On the issue of staffing, I would count two further setbacks:the retirement of the currentvisionary Chief Executive, and collective disappointment at the failure to secure staff backing for a plan to professionalise the SPS workforce.

As I write this article, we are just at the start of whatever additional challenges will arise from the coronavirus. We have already seen in Italy the potential consequences of lock downs and restrictions on prison visits. It is obvious what the loss of another 20% or more of prison staff on sick leave could entail: further restrictions on hours out of cellsand other activities, and, even worse, the inability of health service staff to cope should the virus spread widely throughout our prisons.

In such situations effective monitoring of the conditions and treatment of prisoners becomes even more important. Are we up to the task here in HMIPS? I would normally have had no hesitation in saying yes, but these are not normal times, and I am acutely aware that our own capacity to monitor effectively will be impacted severely by the coronavirus.

Here’s how Her Majesty’s Inspectorate of Prisons for Scotland (HMIPS) works. As Chief InspectorI am blessed here with a small but hugely dedicated team of 12 professional staff, and 120 wonderful volunteers who make up our team of Independent Prison Monitors (IPMs). Our IPMs provide a continuous programme of weekly visits by committed enthusiastic volunteers who care passionately about the treatment of prisoners. They hold prison governors to account through a series of quarterly meetings where the governor in charge meetsthe independent prison monitors, provides a report on what has been happening in the prison, and discusses the latest monitoring findings. Moreover, IPM monitoring reports help inform where we target our inspections, when we carry out a more in-depth assessment of conditions every 3 years or so, and what to focus on during each inspection. The IPMs are not merely advisory: they have a vital role in monitoring the action the prison management commits to making in response to our inspection findings. The two parts of the oversight system inform each other and, working together, provide tighter more effective monitoring of conditions than either part could achieve on its own.

Three other elements seem to mefundamental to the effectiveness of our oversight of Scotland’s prisons. Firstly, all our inspection and monitoring standards are grounded in human rights thinking. As a member of the UK National Preventive Mechanism, we are committed to doing all within our power to ensure compliance with the Optional Protocol to the Convention against Torture (OPCAT), the Mandela rules, and other international standards on the treatment of prisoners. Secondly, we are able to bring in specialist knowledge and expertise from other scrutiny bodies when we go in to inspect. Thirdly, we have sufficient independence from Government and from the Scottish Prison Service to challenge policy and practicewhen we have a duty to do so, while still enjoying a constructive relationship that promotes shared understanding and recognition of the challenges facing the prison service.

Our inspection and monitoring standards were comprehensively revised three years ago with considerable input from the Scottish Human Rights Commission (SHRC). They are independently appointed by the Scottish Parliament to promote respect for human rights everywhere in Scotland and encourage best practice in relation to their protection. The new standards have a very particular focus on the PANEL principles of Participation, Accountability, Non-discrimination andequality, Empowerment and Legality. That has really challenged our whole inspection and monitoring team to look at prisons through a human rights lens and forced us to think again about the way we pose questions to prisoners and prison staff.

We also take people from the SHRC in with us when we carry out our inspections. Their contribution has proved invaluable, particularly in challenging the SPS and indeed ourselves to think harder about the type of support provided for foreign nationals and other minority groups, and the adequacy of accommodation and other support available for disabled prisoners. We frequently conclude that not enough is being done for all these groups.

We benefit hugely too from the expertise of our other partner scrutiny agencies such as Health Improvement Scotland, Education Scotland, and the Care Inspectorate. Their combined expertise enhances our ability to assess the health, education, and progression services provided for prisoners in a way we simply couldn’t do on our own.

By far the most important aspect of our work is maintaining a delicate balance: to provide robust independent external scrutiny, but to do so in a way that maximises the prospects for influencing real change. Often it is relatively straightforward to identify and call out what is wrong and needs to be improved, but we are all aware of the number of inspection reports and thematic review reports across the world which have been published, sometimes to great applause, only to gather dust on the shelf thereafter.

In order to get anything done in the real world, our messages have to be conveyed with compassion and understanding of the pressures facing others. We need to avoid antagonising the politicians and civil servants from whom we seek change, orfatally undermining the morale of those striving hard at the sharp end of these extraordinary challenges.

For HMIPS, maintaining independence from Government is not easy –our funding comes from the Scottish Government, and we are technically Scottish Government employees. Without funding from the Scottish Government, we would not exist as an organisation and there would be little or no scrutiny of Scottish prisons at all. At the same time, HMIPS partly relies on the willingness of SPS to offer people on secondment to us. Without a few secondees from SPS, to work alongside our core HMIPS team, we would struggleto keep up to date with SPS policies, guidance, and processes. Moreover, in our experience secondees from the SPS very quickly turn from ‘poacher to gamekeeper’ and frequently know better than anyone else where the bodies are hidden or when inspectors aren’t being given the full story. For our part, we are encouraged that the SPS recognises the value that a secondment to HMIPS can have for individuals with potential and aspirations to go higher. We hope it will be seen as an integral part of career development programmes for governor grades.

Does all this mean our ability to criticise Government or the SPS is fatally compromised? Definitely not, but we do think carefully when drafting our reports how they will be received. We try to balance the identification of issues that need to be addressed with praise for good practice, and for the often outstanding efforts of staff at all levels of the SPS in extremely difficult circumstances. We always provide an opportunity for the SPS and the NHS to comment on our draft reports, so any factual inaccuracies can be corrected before publication, and we will adjust our assessment scores and accompanying narrative where persuaded by additional evidence. Moreover, while some might see the symbiotic nature of our relationship with the Scottish Government as a weakness, in my experience it does allow ready access to key decision makers within the Scottish Government and to Scottish Ministers themselves. It is also unquestionably the case that our recent reports and evidence to the Scottish Parliament’s different committees, along with inspection reports still in draft, have been a major influence in decisions by the Scottish Government to increase funding for the SPS and further energised action by the SPS to modernise the prison estate. Finally, we fully recognise that we have some way to go to achieve the lofty ambition set out in our strategic plan: to be recognised globally as at the leading edge of good practice in the scrutiny of prisons. Nevertheless, I am sure you willagree with me that it is always good to aim high!

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