Presented in English at the International Penitentiary Congress (Barcelona, 31 March-1 April 2006), and in French at a meeting arranged by “DES Maintenant en Europe” (Maison de l’Europe, Paris, 4 April 2006).
1On 11th January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation R (2006) 2 containing the text of the updated European Prison Rules and a new Rule - Rule 50 - of direct relevance to my topic.
2For the first time a Rule provides a basis for an important development in prison administration. Rule 50 states:
3 “Subject to the needs of good order, safety and security, prisoners shall be allowed to discuss matters relating to the general conditions of imprisonment and shall be encouraged to communicate with the prison authorities about these matters”.
4The Commentary to the Recommendation states as follows:
5 “Rule 50 provides further guidelines so as to avoid unnecessary restrictions on prisoners’ rights to communicate. Good order is likely to be achieved when clear channels of communication exist between all parties. On this basis, provided there are no related security concerns, prisoners should be allowed to discuss issues relating to the general conditions of imprisonment. It is in the interest of prisoners as a whole that prisons should run smoothly and they may well have suggestions to make. For this and other reasons, they should be given opportunity to pass on their opinions to the prison administration. It is up to the national prison administrations to decide what form communications with prisoners will take. Some may allow prisoners to elect representatives and form committees that can express the feelings and interests of their fellow-inmates. Other administrations may opt for different forms of communication. Where prisoners are allowed association in some form or other, prison management and staff should prevent representative bodies from wielding power over other prisoners or abusing their position to influence prison life in a negative way. Prison regulations may stipulate that prisoners’ representatives are not entitled to act on behalf of individual prisoners”.
6The Rule and the accompanying Commentary clearly encourage the setting-up of channels of communication that allow prisoners to voice complaints and comments on prison life and make suggestions for changes. Although it is for national prison administrations to decide on the form that such communication channels will take it is difficult to know exactly what other channels might be adopted other than prisoner councils. At least, examples of other channels are neither mentioned in the Commentary nor were reported to me during the preparation of my paper.
7Rule 50 and the Commentary on the Rule are an integral part of Recommendation R (2006) 2. It is true that Council of Europe Recommendations are not juridically binding on member governments; as their name implies they are recommendations on good practice. But the fact that they must be adopted by a unanimous vote at the Committee of Ministers lays a heavy responsibility on member governments to implement their provisions.
8The reports of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) make abundantly clear that in virtually all of our countries there are weaknesses and deficiencies in the way prisons are run that have damaging consequences for prisoners. Rule 50 makes clear that criticism of such conditions and suggestions for their improvement should not be the sole prerogative of national inspection bodies or the CPT. Prisoners, too, have a legitimate reason to convey their views on these matters.
9For the purposes of my report, prisoner participation in prison management refers to procedures and structures that allow prisoners to express their views on a wide variety of issues or relevance for their collective life in a prison.
10The procedures and structures for prisoner participation have various names: prisoner councils, prisoner forums, spokesmen, consultative councils, inmate committees, representative councils, etc. For the sake of simplicity I shall refer chiefly to prisoner councils. Such councils may exist at wing or living unit level or for the whole prison. The definition excludes discussions with prisoners on individual sentence planning and individual treatment measures.
11Although Rule 50 is new, the use of prisoner councils is not1 and, as I shall shortly show, legislation, policies, practice and research can be found to some extent in Europe. We need, however, far better information than I can provide about these developments in order to begin to build up systematic knowledge and experience that can contribute to further development. The almost complete absence of national and international research on the functioning of prisoner councils needs now to give place to research that focuses first on the procedural processes involved and thereafter to effects and results. Let me begin by describing, however fragmentarily, some of the legislation, administrative policies and practices concerning prisoner councils that can be found in the member countries of the Council of Europe.
12Some countries – perhaps a minority - make legislative provision for prisoner participation in the general management of prisons. Such legislation is to be found in the legislations of, for example, Belgium, Denmark, Finland, the Federal Republic of Germany, the Netherlands, Spain and Sweden. The provisions of a number of legislations are brief, generally worded and may or may not indicate limitations on the procedures or the prisoners who may take part in consultations.
13The provision in the new Finnish legislation2 is somewhat limited. It states that:
14 “... the prisoners may be permitted to gather in the prison under the necessary supervision to plan free-time activities or to deal with other common issues."
15Article 74 of the Dutch Law on Penitentiary Principles states that the governor shall ensure that regular consultation takes place with prisoners concerning matters of direct relevance to their detention. An explanatory memorandum states without further elaboration that the way in which this consultation occurs will vary with different prisons and their prisoner populations3. More detailed information on the Dutch approach to prisoner councils would be welcome.
16New Belgian legislation4 on the enforcement of prison sentences provides for “the establishment of a structural consultative body of representatives of the prisoners" and states that the law is intended to bring about "a climate of consultation” in the prisons. The specific modus operandi of the consultative body awaits formulation and will later be promulgated by Royal Decree.
17The German Federal Prison Act (“Strafvollzugsgesetz”) speaks of “co-responsibility” with prisoners and provides in Article 160 that “It should be made possible for prisoners and detainees to participate in sharing responsibility with prison management on matters of collective interest which are suitable for such co-operation having regard to their nature and the task of the prison concerned”. This provision defines an important purpose of the legislation. It leaves implementation in the hands of the Länders’ prison administrations or those of the individual prison governor. I am told that in practice many prisons do not have prisoner councils although some Länder have issued specific and binding regulations that provide for prisoner councils. Where they exist, meetings usually take place with the governor at two-monthly intervals and deal usually with food menus and leisure pursuits. Staff members, security and individual prisoners must not be discussed5. It would be interesting to know which Länder encourage the use of prisoner councils, what criteria are employed to include or exclude certain prisons, any criteria for
18excluding any particular category of prisoner and the way in which existing prisoner councils function..
19Swedish legislation provides simply that “prisoners have the right to discuss matters of common concern to themselves in some suitable way with the local prison authority. They also have the right to arrange in some suitable way for meetings between themselves to discuss such matters. A prisoner who is being kept separate from other prisoners may only take part in such a discussion or meeting if his or her participation entails no drawbacks ”6.
20The Spanish Law on Penitentiary Treatment devotes Chapter 6, Sections 55-61, to regulating in some detail the elections for prisoner councils and their way of working. Prisoner consultation is undertaken with prisoner committees in the various wings of a prison. Prison officials transmit the suggestions of these prisoner committees to the prison governor. Committee discussions are limited to religious, work, cultural or sports activities and prison meals. However, the Council of Prison Directors can extend the scope of consultations and it would be interesting to learn if this has been done and in what way.
21Prisoners under disciplinary punishment for serious infractions are not eligible for election to the committees and the Council of Prison Directors can suspend consultations in the event of a prison
22disturbance. It would be interesting to know whether the Council of Prison Directors has extended the scope of prisoner consultations or has found it necessary to limit their operation.
23Section 34 of the Danish Sentence Enforcement Act law states first a basic reason for setting up prisoner councils followed by some procedural conditions as follows:
(1) The inmates must have an opportunity to exercise co-determination on their lives in the institution through elected spokesmen.
(2) A spokesman must be elected in each unit or for specific groups of inmates. All inmates are eligible for election as spokesman. All inmates or the spokesmen are entitled to elect a common spokesman. Spokesmen and the common spokesman are elected by written, secret ballot jointly observed by the institution and representatives of the inmates.
(3) The inmates are not entitled to participate in discussions relating to cases about individuals or cases concerning the security of the institution.
(4) The Minister of Justice shall lay down rules on implementation of the inmates’ co-determination.
24Even a limited survey shows that wide variation exists concerning the legislative provisions on prisoner councils and their way of working. The question arises as to the desirable content of legislation on prisoner participation in management. Ideally law should provide that prisoners have a right to engage in consultations with prison management, should state and essential procedural conditions and, in particular, state under what conditions consultative procedures may not be allowed or individual prisoners be barred from representing their fellow-prisoners.
25The circular instructions of the central prison administration are used to supplement legislative provisions by providing detailed guidance on the implementation of law. I have not been able to ascertain whether circular instructions are issued in respect of some of the limited and generally worded provisions in the legislations of Finland, the German Länder and the Netherlands. There is
26no circular instruction that amplifies the Swedish legislative provisions. In the absence of circular instructions on implementing prisoner participation in general management the existence and nature of the procedures matters for the exercise of initiative by individual prison governors. Such initiatives may be well planned and carried through. But the absence of administrative support leaves the individual prison governor making single-handed, perhaps arbitrary, decisions concerning restricting certain prisoners from participation or suspending the consultative procedure. There is the further disadvantage that a change of governor may result in the disappearance of the consultative procedure.
27The provisions of a Danish Circular Instruction from 2001 for implementing the law on prisoner councils are comprehensive. Prison management is required to initiate regular discussions with elected spokesmen and provide a written record of these discussions. In addition to these formal channels for prisoner participation prison management may hold other meetings with prisoners. Such meetings shall not replace the formal channels unless prisoners at a particular prison do not wish to have elected spokesmen. Spokesmen shall be given adequate and remunerated time to meet with the prisoners that they represent. They may have elected substitutes. Prison governors are required to lay down rules on the number of spokesmen, the frequency of elections for spokesmen, whether a common spokesman shall be elected by other spokesmen or by all the prisoners, the frequency of meetings with the prison’s management and the extent to which discussions shall take place with the management of the entire prison or with those responsible for the management of the prison’s various wings (living units). The rules must be drawn up in collaboration with the
28prison’s staff council and in discussion with spokesmen or, in the absence of spokesmen, with all the prisoners.
29Certain limits are placed on Danish participation procedures. Thus, the Circular Instruction empowers governors to restrict the rights and procedures relating to spokesmen discussions “when very particular reasons make it appropriate to do so”. The wording of the Circular Instruction makes clear that these restrictions are intended to apply only exceptionally. Examples of such situations are when a spokesman is excluded from association with other prisoners under Section 63 of the Sentence Enforcement Act, or when two or more spokesmen are confined in special units to prevent escape or when spokesmen are confined in special units because of their strong and negative influence on other prisoners or on the prison’s order, safety and security.
30Circular instructions or similar policy documents constitute an important indication of the central prison administration’s policy and provide guidance on the way in which law and policy shall be implemented. The widespread use of prisoner consultative procedures will not occur in the absence of circular instructions or other policy documents that require, or at least strongly encourage, their adoption and give authoritative guidance on how they should be run. Furthermore the use of prisoner councils that depends on the initiative of individual prison governors is likely to be vulnerable to staff changes. If an inspirational governor is succeeded by one who is less than enthusiastic or skilled there is a risk that the prisoner council functions less than effectively, falls into disrepute or may cease to exist.
31There are reports of the existence of prisoner councils in some of the prisons of central and eastern Europe. Information is lacking on any legislative and administrative provisions and their way of working in practice. In an (the only?) international survey of prison developments in central and eastern Europe, Roy Walmsley, a research worker attached to the European Institute for Crime Prevention and Control affiliated with the United Nations (HEUNI) writes that between 1994 and 2001 he found examples of prisoner councils or similar arrangements in several central and eastern European countries. These included Bosnia, Herzegovina, Bulgaria, Croatia and the Czech Republic. In the published report 7, Walmsley writes: “So it is a concept that seems to operate in a number of places, almost certainly unevenly in its format and effects but I expect it occurs in a number of other countries of the region too, at least in one or two prisons and more generally where it is especially encouraged by the central administration 8. It would be interesting to explore this more carefully”.
32It is encouraging to learn that the central and eastern European countries have begun to make use of prisoner councils. But their use seems to be confined to individual prisons and it is not certain that it is the result of a firm legislative and administrative thrust to secure a major change in the way that the prison system works. The vulnerability mentioned above of participative procedures
33in individual prisons to changes of governor or other key staff applies to central and eastern European prisons just as much as to their western counterparts.
34One of the best-documented accounts of the work of prisoner councils comes from England. Since this is one of the few examples known to me of a comprehensive and systematic description of the use of prisoner councils I deal with it in some detail. The formal provisions for prisoner councils are contained in Prison Service Order 4480 on Prisoners’ Representative Associations. The Order allows, but does not specifically encourage, prisoner councils. It provides a general framework for, and sets limitations on, the setting-up of prisoner councils where regional or local management or prisoners so desire.
35A non-governmental organisation, the Prison Reform Trust, identified 27 prisons that had functioning prisoner councils in January 20019. Seven of these prisons were visited between March and August 2003 and prisoners’ representatives and prison staff involved with prisoner council activities were interviewed. The prisons in question comprised several different kinds of prisons including a women’s prison and a young offender institution. Several of the prisons were very large; one contained more than a thousand prisoners. The interview questionnaire was also sent to the remaining twenty prisons for written replies. Nineteen responded. The questionnaire focused on the working procedures of the prisoner councils, the subjects considered in council meetings and the impact on prison life. I cite briefly some of the major findings of the research10.
36In most prisons, especially those with a large number of prisoners, the councils consisted of elected representatives of wings or living units. Representatives were not usually elected by secret written ballot. Instead, prisoners expressed interest in becoming a representative or were recommended by other prisoners and took office after informal consent had been given. Staff tended to encourage suitable prisoners to get involved. There is no record of completely unsuitable representatives being chosen.
37The agendas of topics discussed were open and flexible. Representatives canvassed their fellow prisoners for subjects to be brought up but often the meetings allowed for the informal and spontaneous presentation of issues. There was widespread agreement that representatives were genuinely able to raise matters of concern to prisoners. Management was also able to get prisoner feedback on ideas connected with the running of the prison. A governor or a principal officer 11 usually took the chair.
38A table in the report shows the number of prisoner councils that discussed a particular topic, or that did not discuss a particular topic or considered the topic as inappropriate for discussion. The table shows that the overwhelming number of topics concerned practical matters of importance for prisoners in the daily life of the establishment. Examples include diet, canteen arrangements, visits, work, TV, staff-prisoner relations, education, drug treatments, telephone access, etc. In three councils the topics of race, drug treatments, and certain complaints were considered inappropriate and not taken up.
39This is a crucial aspect of the work of prisoner councils. A minority of councils took their decisions by majority voting. A few councils reported that most decisions were taken by trying to arrive at a consensus or compromise. In three-quarters of the councils there was full discussion but the chairperson took the final decision. Some prisoner councils pointed out that prisoner councils were not supposed to take decisions but only to present prisoner points of view for management. Even if management continued to take the decisions it appeared likely that managerial decision-making was improved as a result of the reflection engendered by the councils. Once decisions were taken they were usually formally recorded and followed-up in subsequent meetings. This kind of accountability prevented the prisoner councils from becoming only “talking shops”.
40More than three-quarters of the governors said that they consulted the prisoner councils before making any change in the regime. This did not mean that management necessarily changed its mind about proposed changes but prisoners appreciated that management would listen to, and reason with, them about changes. Council meetings, in short, provided a safe environment in which controversial matters could be raised and argued about even if they could not always be resolved as the prisoners wished. But if prisoners are to be given a role in sharing responsibility for daily life in the prison, consultation must lead at least on a sufficient number of occasions to what they see as beneficial outcomes. In the present survey this was most apparent in relation to the resolution of practical problems, for example, fixing showers that were not working, improving the number of goods sold at the prison canteen, replacing hot meals during the summer with sandwiches, adjusting exercise times, etc. But other and more contentious examples were also given and included the possession of personal computers and a prison’s drug control policy. These positive examples must, however, be set against complaints that it took too much time to get management to consider and decide on sensitive issues and that sometimes prisoners felt that legitimate proposals were rejected.
41The critical factor seemed to be the commitment of the senior management team to making the prisoner council a central aspect of prison life. No less important was that the basic grade prison officers’ attitudes were favourable and that the wing staff felt that the prisoner council was serving a legitimate purpose. Credibility was heavily dependent on the way meetings were organised and chaired and decisions followed up.
42More than two-thirds of the senior management teams cited at least one drawback. One governor commented, “Occasionally prisoners are elected for their own reasons or agenda and argue points affecting themselves and not the majority of prisoners”. A similar proportion thought that arguments in the council meetings heightened tensions between staff and prisoners. There was also the danger that the attention given to prisoner needs made the prison staff feel that their problems were given insufficient attention. Although it was rarely mentioned prisoners could be antagonistic towards their representatives and believe that they had “sold out” to management.
43Two-thirds of governors and their senior managers held that prisoner councils operated as clear and improved channels of two-way communication. Governors appreciated that prisoner councils served as a valuable sounding board when policy changes were being considered and that the councils could draw their attention to issues that otherwise might have gone unnoticed. More fundamentally, it was recognized that conflicts of interest were bound to arise between prisoners and management. In the absence of prisoner councils, management can ignore the existence of conflicts of interest, which then come to expression in destructive ways – threats, abuse, violence and self-mutilation for example. Even if management becomes aware of, and tries to deal with conflicts of interest, the lack of direct, certain and clear information and the circulation of rumours frequently exacerbate such conflicts and hinder their resolution. With prisoner councils conflicts were brought into the open, the interests and needs of the two sides could be clarified, and often some common ground or shared interest could be identified. As a result conflict resolution became more possible and more realistic. A further benefit arising from prisoner councils was that general staff-prisoner relations became suffused with better understanding. In its turn this contributed to improved safety and security in the establishment.
44As a result of the meta-analyses of criminological research that have been conducted over recent years notably in Canada but also in some European countries, it is now known that personal change programmes based on cognitive psychological approaches and social learning offer real possibilities to prisoners to address their offending behaviour 12. At least in some European prisons extensive programmes of this kind are beginning to take off. The personal change programmes that have been devised seek to get prisoners to think about past, present and future conduct and what this has meant, means or can mean in the future for the prisoner and other persons. The aim is to start a process of taking responsible personal control of one’s life. The efficacy of such programmes is obviously enhanced if the prisons offer opportunities for responsible behaviour on behalf of the prison community. Conversely, a prison that is full of tensions, has poor staff-inmate relations and in which communication between prison management and prisoners is limited or distorted is scarcely likely to reinforce therapeutic efforts. Prisoner councils can contribute to a
45climate that is favourable to treatment and, equally important, to allowing prisoners to exercise far more personal responsibility than is usually the case13.
46The national inspections carried out by the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) are of unique importance for the protection of prisoners. The CPT has stated that it attaches great importance to communication between staff and prisoners that promotes a relaxed prison climate. In connection with preparing the present report I asked if the CPT Secretariat could confirm that the question of prisoner councils has not so far been a marked feature of its inspections. (The only reported reference is that the CPT referred with interest to prisoner participation in management that was found when inspecting a Swiss prison in 1991). It is admitted that since then the CPT has made hardly any specific remarks on the subject of prisoner councils, perhaps because the Committee has very rarely encountered such bodies and perhaps, on occasion, because it was not sufficiently attentive to their possible existence. I have been assured that the CPT considers that prisoner councils could make an important contribution to safety in prisons and that efforts will be made to include the use made of prisoner participation in prison management in the CPT’s future work 14.
47The foregoing shows that there is every reason to encourage, facilitate, enlarge, describe and evaluate the use of prisoner councils. Due caution needs to be exercised so that negative effects (notably threats to good order, security, the well-being of other prisoners, staff-prisoner relations and the quality of prison life in general) are avoided. What, then, constitute some of the essential steps to achieve this development? Here are some suggestions:
Legislation should specify the purpose and basic procedures for the participation of prisoners in general prison management. Special circumstances that limit the use of such procedures should also be specified.
The central prison administration should give more detailed guidance on the implementation of law by means of policy documents, circular instructions, etc.
A favourable prison staff culture must be created and maintained in any prison using prisoner participation procedures in general management, one that is committed to showing respect for prisoners and their legitimate views and aspirations. To this end the need for focused staff straining and support should be recognized 15.
Listening to and acting on the legitimate views of prison staff should be considered as important as doing so with prisoners.
The central prison administration should ensure that the initiation and development of prisoner participation procedures in general management is closely monitored with a view to developing knowledge about good practice.
Independent national research of prisoner participation in general management should be undertaken. Such research should study the processes involved and any beneficial or negative outcomes observed.
The inspections undertaken by the CPT should give attention to the existence of prisoner councils, the issues discussed and the way in which they are dealt with by prison management.
The Council of Europe should undertake an international study of experience gained with a view to a Recommendation on improving the implementation of Rule 30 of the European Prison Rules.
48In a brilliant essay, the late Mary Tuck argued that, even if prisons will be with us for some time yet, the correction of prisoners through incarceration alone will not work. Instead she pointed to the wisdom of Aristotle who taught that men learn the virtues through the joint practices of communal life. Mary Tuck’s conclusion was that “any society that wishes to prevent crime must encourage those natural communal institutions by which men relate to each other. And if offenders are to be dissuaded from offending, they must somehow become involved in the joint practices of a working community” 16. Rule 50 now encourages prison administrations to begin to involve prisoners in such joint practices within the prison community.