Ratifying the UN Optional Protocol to the Convention against Torture: A Review of the General Scheme of the Inspection of Places of Detention Bill by Molly Joyce, IPRT

On 24 June 2022, Minister for Justice Helen McEntee published the General Scheme of the Inspection of Places of Detention Bill (DoJ, 2022). This draft legislation is long overdue, having been on the political agenda since the drafting of such a General Scheme was first approved in May 2011 and appearing in successive Governments’ Legislative Programmes since July 2017. The Bill will provide the mechanism by which the Government will finally ratify the UN Optional Protocol to the Convention against Torture (OPCAT, 2002), which Ireland signed in 2007.

The importance of OPCAT cannot be overstated. It is an international human rights treaty which assists States in preventing torture and other forms of ill-treatment in places of detention. Its purpose is specifically to provide for the effective prevention of torture through international and national monitoring of all places where people are deprived of their liberty. Clearly this includes prisons but it goes wider than this. The term ‘deprivation of liberty’ is expansively defined within OPCAT as meaning “any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority” (Art.4(2)). The remit of OPCAT will accordingly cover other obvious places of detention such as garda custody suites, the Central Mental Hospital (CMH) and military detention facilities, but also potentially go wider in applying to residential institutions and Direct Provision centres (IHREC, 2022).

This monitoring function under OPCAT is to be carried out at the international level by the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) and at the national level by National Preventive Mechanisms (NPMs). The key to understanding the roles of the SPT and NPMs is that they are preventive in nature. They are not investigative bodies and they do not undertake investigations or adjudicate on complaints concerning torture or ill-treatment, even if they encounter such cases while carrying out their visiting function (although that would presumably inform their recommendations to the relevant institution).

In regards the operation of OPCAT domestically and the establishment of an NPM, there are different arrangements that can be made. In Ireland’s current Bill, the proposal is to establish individual NPMs for each sector with the Irish Human Rights and Equality Commission (IHREC) acting as an overarching ‘NPM coordinator’ that effectively coordinates the activities of the individual NPMs and liaises with international bodies in relation to visits to Irish places of detention.

So, for example, the Office of the Inspector of Prisons will become the ‘Inspectorate of Places of Detention’ and effectively perform the NPM function for the justice sector by monitoring prisons, Garda Síochána stations, vehicles used to transport detainees and any place where a person is detained immediately before and after their appearance in court (Head 19(1)). By contrast, the NPMs for other sectors, such as health or social care, are not yet established by the Bill. Head 18, however, directs that the relevant Minister may designate one or more NPM for the purposes of the Bill, with such designation setting out the place of detention to which the remit of the NPM applies. This might involve designating an existing body as the NPM e.g. it is anticipated that HIQA will likely continue as the appropriate designated NPM for Oberstown while the Mental Health Commission would be the natural fit for the designated NPM looking at mental health facilities.

This general approach to implementing OPCAT in Ireland has advantages and it has been acknowledged that there are already organisations which might naturally fulfil the role of NPM in their respective sectors. However, there are concerns about the Bill as currently drafted. These include the following:

1. Resourcing is a huge issue. The new Inspectorate of Places of Detention must be sufficiently resourced if it is to take on the role of NPM for both prisons and Garda stations. Similarly, IHREC will need additional resources to carry out the extensive additional duties assigned to it by this Bill.
2. Maintaining the distinction between an organisation’s existing functions and NPM functions. Many of the organisations envisioned to take on the role of NPM also have a complaints / investigative function (e.g. the Inspector of Prisons currently investigates deaths in custody in Irish prisons). If an organisation is to be expected to maintain both functions, there must be a clear distinction between their existing investigative role and their new NPM, preventive, role. This could be achieved by ensuring separate staff, separate budget lines and separate units within each organisation.
3. OPCAT emphasises that NPMs must be independent. Such independence must be made explicit within the Bill and backed up by clear legislative provisions around the financial and operational autonomy of each NPM. There are concerns that the Bill envisions the budget of the new Inspectorate of Places of Detention remaining with the Department of Justice (Head 3) as well as certain provisions that appear to restrict the new Chief Inspector of Places of Detention from questioning or expressing an opinion on the merits of Government policy (Head 11).
4. Finally, there may be scope to include specific reference within the Bill to the role of civil society in both designating and feeding into the work of NPMs. International guidance reiterates the important role of civil society (APT, 2006) and other countries have adopted models which include a formal role for civil society organisations within the national OPCAT framework (IHREC, 2017). There may also be an opportunity to build in a clear legislative basis for civil society engagement from the outset, and there are examples of similar provisions within the Irish Human Rights and Equality Act 2014 (s.18).

Finally, given the long delays we have already seen in ratifying this important international instrument, it is hoped that the Government will consider ratifying OPCAT without any further delay and before this Bill is passed. This is made possible by Article 24, which provides that a country can ratify OPCAT and make a declaration postponing the implementation of their obligations for a maximum of five years (with an additional year to designate the NPM after ratification). Ratification with immediate effect would provide a clear timeline for ensuring the required legislation is implemented and would show a real commitment to providing a robust regime of inspection / monitoring of places of detention in Ireland.

This Bill, and the ratification of OPCAT, represents an historic opportunity to strengthen the culture of human rights within Irish detention facilities and put in place safeguards to ensure that some of the most vulnerable individuals in our society are protected.

Molly Joyce is Legal and Public Affairs Manager at the Irish Penal Reform Trust.

IPRT’s submission to the Joint Committee on Justice on the General Scheme of the Inspection of Places of Detention Bill is available here.

A recording of the Justice Committee meeting on this Bill is available here and here.