National Preventive Mechanism Eighth Annual Report 2016–17 As a result I have been able to review the extent to which the UK NPM’s structure complies with the requirements of OPCAT, taking into account the advice provided by the SPT to NPMs.1 As you know from our initial discussion, the UK NPM’s lack of legislation setting out both the mandate of the NPM itself and its constituent bodies, is a concern to us. It also troubles me that there are no statutory guarantees of independence for the NPM or its twenty members, and that the NPM does not have a separate budget. My initial impression after spending time with members and meeting external stakeholders makes me concerned that these have a number of real consequences, as follows: 1. It clearly undermines the UK’s formal compliance with OPCAT and the SPT’s subsequent guidance and were the SPT to conduct a visit to the UK, we would be strongly criticised. 2. The UK government promotes the UK NPM around the world, yet our credibility is quickly questioned when other States learn of our lack of legislation. 3. Unless the NPM is incorporated into members’ statutory requirements it affects the delivery of the NPM’s overall mandate in practice, as many of its members’ functions are much wider than their specific NPM mandate and this particular function may not always be a priority for them. Currently, the NPM role could be expressed merely as an aim in an organisation plan that is subject to change from year to year. 4. The NPM itself should be accountable to parliament.2,3 Parliament should set out in statute what is required of the NPM, so that it is able to hold the NPM to account for the mandate it has set out as well as its performance and finance. The absence of legislation also means the NPM is unable to lay its annual report in Parliament directly. It also hinders the ability of the NPM’s stakeholders to hold them to account for their NPM work. 5. The NPM has a responsibility to assess how the government complies with its domestic and international human rights obligations relating to detention. Parliamentary accountability would provide the NPM with the appropriate independence from government to fulfil this role impartially. 6. The absence of a Parliamentary guarantee of the mandate and the independence of the NPM and its members can have a negative effect, allowing governments, particularly in times of austerity, to influence the critical approach that may sometimes need to be taken by them. A government could, in theory, decide to change the NPM and designation of members without the authority of Parliament. 1. 2. 3. 78 “The mandate and powers of the NPM should be clearly set out in a constitutional or legislative text”, UN SPT, Guidelines on national preventive mechanisms, 9 December 2010 (CAT/OP/12/5); see also UN SPT, Analytical self-assessment tool for NPMs, 6 February 2012 (CAT/OP/1). OPCAT Article 18(4): “When establishing national preventive mechanisms, States Parties shall give due consideration to the Principles relating to the status of national institutions for the promotion and protection of human rights.” See also Office of the UN High Commissioner for Human Rights (OHCHR), ‘Principles relating to the Status of National Institutions (The Paris Principles)’; OHCHR ‘Belgrade Principles’ on the Relationship between NHRIs and Parliaments. See also: http://www.ohchr. org/EN/NewsEvents/Pages/ParliamentsAndNHRIs.aspx There are currently two legislative texts that refer to the NPM and OPCAT. The Police and Fire Reform (Scotland) Act 2012 (http://www.legislation.gov.uk/asp/2012/8/contents/enacted) refers explicitly to the SPT and OPCAT (s. 93–96). The Public Services Reform (Inspection and Monitoring of Prisons) (Scotland) Order 2015 which introduces reference to the SPT and OPCAT into the Prisons (Scotland) Act 1989 (http://www.legislation.gov.uk/ssi/2015/39/contents/made?article-3-2-c)