National Preventive Mechanisms (NPMs) around the world draw from extensive advice and authoritative guidance on how to fulfil their roles, including on matters such as independence, visit methodology and working with stakeholders.
Yet after many years working in and with NPM and other detention monitoring bodies, we have noticed how little guidance there is for NPMs on what types of monitoring tools – indicators, expectations, criteria, standards – can best support their work, and how to go about developing them.
There are a range of approaches taken by NPMs around the world as well as international detention monitoring bodies. There has been some movement away from the development of “standards”, like those previously published by the European Committee for the Prevention of Torture.
Some NPMs and their member bodies use “expectations” (United Kingdom, New Zealand, Australia) that guide their focus during visits, and these generally establish what they expect to see in terms of treatment and conditions or “outcomes” for detained people, supported by indicators. Others use ad hoc documents developed for specific types of settings or topics, and often these are internal documents.
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There are important but often subtle differences in what these approaches try to achieve, but what they all have in common is that they form part of the NPM’s preparation for visits, setting down clear markers for issues to probe and some expressing what they would hope to find.
In our work, we have seen how NPM practice has evolved organically, with NPMs gaining inspiration from others’ experiences and tools. This is one of the great strengths of the OPCAT framework, further supported by the myriad formal and informal ways in which NPMs connect with and learn from each other.
We are also acutely aware that, while there is little by way of guidance on what models can helpfully be used, there are strong indications and opinions about models that should be avoided.[1]
We believe NPMs do need practical tools that help guide their work and implement the general principles of the preventive approach. In fact, developing the right kind of monitoring tools can insulate against the checklist/audit/mechanistic approaches that NPMs should avoid, and strengthen their approach to the prevention of ill treatment They can help NPMs with multi-disciplinary staff or large volunteer work forces with the task of applying human rights standards which can sometimes be hard to locate, difficult to interpret or sketchy on practical issues they face.
Here are five tips for NPMs considering how to develop monitoring tools that can support them to implement their preventive mandate.
1. Setting the framework
Monitoring tools can assist NPMs frame and set the tone for their work, provide focus and flexibility, and facilitate attention and coverage of key human rights issues. For NPMs comprised of pre-existing bodies, such as inspectorates or ombuds bodies, these tools can help embed necessary shifts in focus and approach. They also inform how staff and volunteers do the day-to-day work of visiting, and what ends up in their reports and recommendations.
There are some crucial elements to monitoring tools which need to:
- Strike a balance between providing structure to detention monitors and not giving a rigid formula that hinders flexibility. They cannot, and should not, be exhaustive.
- Protect against subjectivity and bias and ensuring staff/volunteers who are not human rights experts can still be informed by the spirit and substance of them.
- Embody the NPM’s independence, by communicating independent criteria that are underpinned by human rights standards.
- Embed and communicate human rights standards in a way that is relevant and understandable for different audiences.
We would also encourage NPMs to publish these tools, wherever possible, as this provides transparency and communicates the NPM’s methodology and values to those subject to scrutiny, people detained in the places they visit and to wider stakeholders.
2. What is appropriate and useful is context-specific
We are acutely aware that a monitoring tool that works for one NPM will not necessarily work for another. There are no rigid institutional models for NPMs and so monitoring tools need to take into account the organisation’s governance, culture, methodology and context. It is important to be conceptually clear regarding the purpose and aim of any tools.
A new NPM will likely need different tools to a long-established body with well-embedded methodologies. And, as recently underscored by Rebecca Minty and Andreea Lachsz, NPMs must tailor human rights standards to local contexts to make them meaningful. This is particularly relevant in instances where human rights standards set a lower bar than national policy. NPMs should not compromise expectations because of this.
3. It takes time
Because the framework an NPM uses for monitoring will influence, shape and inform the issues it identifies, and consequently the reports and recommendations they issue, getting these tools right is crucial. It takes time and expertise to develop them and, in our experience, they require significant work to fine-tune. Subtle differences in wording can make a significant difference in how they are used. Consultation with stakeholders is important, as is piloting and ongoing evaluation. Once drafted, an NPM will need to tweak, refine and sometimes rethink.
4. Tools are just one piece of the puzzle
We caution against an over-reliance on monitoring tools to ensure NPMs remain flexible in how they work and their ability to respond to new and emerging practices, or unexpected circumstances. The number of tools developed by NPMs to support their work during the COVID pandemic is an example of this. However, tools should also go hand-in-hand with other measures, including staff training, strategic leadership and cultures of internal reflection and challenge.
5. Gaps and areas for future development
While there are many high-quality monitoring tools NPMs can learn from, there are areas that are less well-developed. In drafting mental health expectations for the Tasmanian NPM, we were struck by the absence of NPM tools to learn from, as well as the challenges of interpreting international human rights standards to underpin them. It is interesting to note that it is, in fact, some of the newest NPMs that are developing the first monitoring tools for non-criminal justice settings; for example, Tasmania’s mental health expectations and New Zealand’s aged care monitoring expectations. Beyond this, there is a strong rationale for NPMs to consider a greater focus on developing monitoring tools for cross cutting issues, such as discrimination or restraint, to build consistency of approach and deepen critical thinking on systemic issues.
Authors
Louise Finer was the head of the UK NPM from 2013-2020, and at HM Inspectorate of Prisons contributed to the development of “Expectations” for monitoring different types of custody and thematic issues. She developed the first ever NPM guidance for monitoring isolation and solitary confinement across all types of deprivation of liberty. She now works as a freelance consultant on a range of policy, research and training projects.
Sarah Cooke was a Mental Health Act Commissioner, visiting countless facilities where people were detained under mental health law and is now a mental health tribunal judge and a freelance consultant working on strategy, training and advisory projects.
Working together, Louise and Sarah have developed monitoring tools on immigration detention for the Independent Monitoring Boards (UK) and the first ever comprehensive NPM monitoring tool for mental health detention, for the Tasmanian NPM.
[1] For example, the UN Subcommittee on Prevention of Torture rightly criticises practice where NPM bodies set out to assess compliance with national policy and legal standards but provides few insights that guide NPMs on useful approaches to take. See also Malcom Evans (ed), ‘Chapter 12: The prevention of torture’ in Research Handbook on Torture (2020)
