Academic News & Views: NPM Independence and Effectiveness

In a recently published article for the Howard League for Penal Reform Marie Steinbrecher skilfully dissects the issue of NPM independence and effectiveness in practice. PhD candidate Marie Steinbrecher throws a welcome spotlight on this delicate question in an October 2018 Early Career Academics Network journal article titled ‘Challenges around preventing torture’, drawing on examples from the context of the United Kingdom.

For readers perhaps less familiar with the basic functions of an NPM, the author also offers a useful primer on this broader issue, before examining the matter of NPM independence and effectiveness in greater detail. In doing so, among other engaging issues, Marie Steinbrecher focuses on the somewhat contentious practice encountered in the United Kingdom of seconding personnel from law enforcement agencies to different oversight bodies. In this instance Steinbrecher cites the example of the Independent Office for Police Conduct, formerly known as the Independent Police Complaints Commission (which is not part of the UK NPM), highlighting the potential trade-off between effectiveness and perceived independence.

Howard League for Penal Reform

In the recent past, the UN Committee against Torture has been critical of the UK Government due to the practice among parts of its 21-body NPM of employing staff through secondment from different government agencies.[1] The UK Government has since rejected the view that NPM independence is compromised in this manner.[2] The Swiss NPM, the National Commission for the Prevention of Torture, has similarly included past and present members whose independence has been questionable, including serving police officers and prosecutors.

In her interesting article Marie Steinbrecher concludes that:

… there is no clear formula relating to the balance between NPM independence and proximity to the government. It would appear that absolute independence is impossible to achieve for NPMs. Simultaneously, being overly close to the government carries many risks and disadvantages to be the preferred approach. This conflict is a challenging one and not easy to mitigate, especially given the general challenges that NPMs face whilst sitting between the government and NGOs whilst belonging to neither. Future research is required to explore how different NPMs deal with and try to overcome this dilemma.

This same conclusion will no doubt have bearing on the Canadian context. When the day finally arrives for Canada to ratify the OPCAT, it will be obliged to institute an NPM either by designating one or more existing bodies or creating an entirely new structure(s) from scratch.

No matter which route Canada takes, it will have to ensure that the resulting NPM mirrors all the attributes outlined in key OPCAT Articles 17-23 and 35 (as helpfully outlined in the above article), is sufficiently independent of the Canadian detaining authorities and, crucially, is seen to be so in practice. Past experiences with certain provincial police complaints bodies have revealed that perceptions of independence matter a great deal in the Canadian context. For the here-and-now, however, Marie Steinbrecher’s article gives us good cause for reflection.

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See: Steinbrecher M, ‘Challenges around preventing torture’ (October 2018) 38 Howard League for Penal Reform Early Career Academics Network Bulletin 27.

Interested persons are kindly invited to download the above article.

[1] Committee against Torture, Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland, adopted by the Committee at its fiftieth session (6-31 May 2013) (UN Doc. CAT/C/UK/CO/5, 24 June 2013) §14.

[2]. Committee against Torture, Sixth periodic report submitted by the United Kingdom of Great Britain and Northern Ireland under article 19 of the Convention pursuant to the optional reporting procedure, due in 2017 (UN Doc. CAT/C/GBR/6, 29 January 2018) §20.

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