CAT/OP/GBR/RONPM/1 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”.15 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.16 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 15 16 10 Eighth Annual Report of the United Kingdom’s National Preventive Mechanism, 1 April 2016–31 March 2017 (2018), p. 58. Guidelines on national preventive mechanisms, paras. 16 and 18.