NPM Toolkit

NPMs work to drive change in deprivation of liberty systems. Sometimes the necessary changes relate to what is occurring within places of deprivation of liberty themselves. However, very often the underlying causes of problems are to do with things that are outside the place itself. These might include issues relating to institutional culture; regulations or lack of thereof; laws and policies; and issues in society more generally (including a culture of discrimination against particular groups). 

This is why NPM recommendations for change should not only target what happens in specific places of detention but also the broader legal and policy environment of the country. 

By policy, we mean the objectives or courses of action pursued by the authorities on a given topic. Policy can be both high level – for example the overall strategic direction and objectives set by a responsible ministry (for example on how healthcare in prison is allocated, managed and funded), as well as operational level – for example the rules of procedure and operating manuals that govern the day-to-day work of staff within a particular sector or type of establishment (for example, how they carry out body searches and use restraints or force in practice). 

By laws, we mean provisions and rules of conduct or actions that are prescribed, enacted, and/or enforced by recognised authorities (such as legislatures and/or executive or judicial entities). Laws can be national, federal and local and can be called: acts, legislation, decrees, and bills, among other things, depending on the context. 

Government policies and legislation are relevant to the work and functioning of NPMs in two ways: 

First, laws and policies set the framework for all aspects of deprivation of liberty, including the number, treatment, and situation of persons who are deprived of liberty – all of which rest at the core of NPM’s substantive mandates. Of particular significance are laws and policies in the areas of human rights and torture prevention, non-discrimination, criminal justice and crime prevention, corrections, policing and law enforcement practices, mental health, and children’s rights, among others. 

Second, the NPMs have the mandate to engage at legal and policy level, granted by Article 19 of the OPCAT (see paragraph below).

Finally, NPMs are themselves established by, and operate in accordance with, their legislative mandates. NPM legislation, together with its underlying policies, is fundamental to determining the scope of its powers, its operational and financial independence, and ultimately its effectiveness. This means that NPMs may choose to push for changes in law and policy affecting both deprivation of liberty and with the aim of strengthening their own institutions. 

Strong and effective domestic laws and policies that comply with international and regional standards are a key and foundational component of effective torture prevention in practice. For this reason, any NPM seeking to be a driver of change must engage with the relevant policy and legal frameworks. This engagement will be built on the findings of their preventive visits and their analysis of the risks factors and root causes leading to ill-treatment. 

NPMs are uniquely placed to promote and foster systemic and sustainable changes in support of torture prevention. Not only can they gather first-hand information from inside places of deprivation of liberty. As noted above, the OPCAT also grants them the power to make recommendations to relevant authorities, and to submit proposals and observations on existing or draft legislation (Article 19). The authorities themselves are bound by the OPCAT to enter into dialogue with the NPM on the substance of these recommendations. 

Furthermore, NPMs’ unique approach, rooted in interviews and observations made during regular visits to places of deprivation of liberty and an analytical capacity based on multidisciplinary expertise gives them the ability to understand the complex risk factors that make torture and ill-treatment more likely. These risk factors include particular moments (such as the first hours of police custody), groups in situations of vulnerability, particular places, and particular practices that put people at heightened risk. The underlying reasons why all of these risks exist may lie in policies and in law.   

Based on their understanding of the changes needed, there are a number of ways that NPMs can contribute to law and policy frameworks that uphold the dignity of those deprived of liberty. These may include: 

• Submitting proposals and observations concerning existing or draft legislation. In this regard, a number of NPMs (particularly those that are NHRIs) have specific wording in their founding legislation that requires the authorities to send them relevant draft legislation for comments and inputs. This may also involve participation in specific committees or legislative review processes or providing input to ad hoc government commissions established to address specific problems or themes. 
• NPMs can also submit proposals and observations on policy. NPMs might be invited to participate in formal policy review processes but, even outside these processes, they can often promote change by engaging directly with the government agency that oversees the policy at hand. This might mean, for example, making recommendations and entering into dialogue with the national police academy in order to change police training on the use of force. 
• Many NPMs also use their thematic and annual reports to highlight specific issues and to make recommendations aimed at addressing the legislative and policy-related aspects of different problems they have identified in their work. Presenting their annual report to parliament, as many NPMs have the power to do, can be an important way to engage with and raise awareness among parliamentarians of the changes to law and policy that are needed. Over time, this can also help NPMs to build a relationship with key parliamentarians, which may help them to drive legislative change relevant to their mandates. 
• NPMs may also wish to engage in public advocacy around key legislative and policy priorities in their work. Either alone or as part of coalitions or civil society and other actors. This can involve thematic reports, as mentioned, as well as press conferences, op-eds and engagement with the media. 
• A small number of NPMs also submit Amicus briefs in relation to court cases that are relevant to their work – particularly when they involve a particular precedent. 

Thinking about the policy and legal dimensions of the changes NPMs would like to see should form part of their everyday work. 

This includes at the preparatory stage of each visit, as part of the background research that happens before each visit. It also includes after visits when they analyse their findings. Making these changes happen, however, requires that NPMs dedicate time and resources to the different aspects discussed above. This may include making it the responsibility of specific staff members to monitor legislative developments or to engage with policymakers or parliamentarians. 

For NPMs that are NHRIs, the task may be simplified by the existence of specific legal, policy and communications departments or staff within the institution who monitor policy and legal developments, that NPMs can leverage to help push for the changes they’ve identified. 

To promote change in law and policy, NPMs may need to work with a range of actors beyond those directly in charge of places of deprivation of liberty. Some examples may include: 

• Identifying and engaging with members of parliament and their staffing who are sympathetic to particular issues. 
• Engaging directly with the courts and the judiciary 
• Partnering with CSOs on thematic advocacy priorities 
• Submitting shadow reports or other information to international processes and bodies.