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Standing Committee D
The Committee consisted of the following Members:
Chairmen:
†Derek Conway, Mr. Greg Pope
†Barlow, Ms Celia (Hove) (Lab)
†Blears, Hazel (Minister for Policing, Security and Community Safety)
†Brokenshire, James (Hornchurch) (Con)
†Carswell, Mr. Douglas (Harwich) (Con)
†Fabricant, Michael (Lichfield) (Con)
†Featherstone, Lynne (Hornsey and Wood Green) (LD)
†Flello, Mr. Robert (Stoke-on-Trent, South) (Lab)
†Gwynne, Andrew (Denton and Reddish) (Lab)
†Herbert, Nick (Arundel and South Downs) (Con)
†Horwood, Martin (Cheltenham) (LD)
†McDonagh, Siobhain (Mitcham and Morden) (Lab)
†Mactaggart, Fiona (Parliamentary Under-Secretary of State for the Home Department)
Morden, Jessica (Newport, East) (Lab)
†Pound, Stephen (Ealing, North) (Lab)
†Pritchard, Mark (The Wrekin) (Con)
†Ryan, Joan (Lord Commissioner of Her Majesty’s Treasury)
†Wyatt, Derek (Sittingbourne and Sheppey) (Lab)
Mark Egan, Committee Clerk
† attended the Committee
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Tuesday 28 March 2006
(Morning)
[Derek Conway in the Chair]
Clause 21
Appointment of Chief Inspector
10.30 am
Nick Herbert (Arundel and South Downs) (Con): I beg to move amendment No. 144, in clause 21, page 22, line 15, at end insert—
‘(3) The Chief Inspector shall maintain complete independence from the Government and shall not be directed by Ministers except where specifically directed under the provisions of this Act.’.
I am glad that you survived the threat to life and limb suggested by the fire alert, Mr. Conway.
The amendment is designed to provoke debate on the important fact that the chief inspector of the new combined inspectorate should be constitutionally independent from the Government. There are reasons to worry about whether that will be the case. The inspectorates are nominally independent now. On the Home Office website, which I am always keen to quote, the introduction to the inspectorate of constabulary says that it is
“independent both of the Home Office and of the Police Service.”
Lord Chief Justice Woolf has observed, in relation to the prisons inspectorate, that
“a system without an independent element is not a system that accords with proper standards of justice.”
However, we know from what previous chief inspectors have said about the operation of their inspectorates and how they work with the Government that that independence is often sorely tested. Lord Ramsbotham, the former chief inspector of prisons, noted in his book “Prisongate” that during his time as chief inspector, he and the Prison Service were working to different agendas and that the permanent secretary in the Home Office did not
“like or understand our independence.”
He further describes the way in which the Government sought to interfere, sometimes with the content of his inspectorate reports. On one, he says:
“I would have liked to complete a further thematic review called ‘Inequalities’ to address my deep concern about how five separate minority groups were treated in prison,”
but the Minister
“suddenly announced that he did not want me to include race in the review”.
Lord Ramsbotham says that he tried to persuade the Minister to include a review, but was not successful.
Similarly, Chris Woodhead, the former chief inspector of schools, sets out in his book “Class War” the relationship that he had with the Government, which was not one of proper independence. He says:
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“Never at any point in its history was HMI wholly or constitutionally independent of government”.
In fact, prior to the creation of the Office for Standards in Education, the inspectorate was a member of the permanent secretary’s senior management board, working with other civil servants to an agreed agenda. Then, the Department was able to determine
“what it said and did not say”.
In 1992 Parliament made Ofsted constitutionally independent, but Mr. Woodhead says that in practice
“the Department continues to hold the purse strings. Officials and politicians alike seek to exert influence over the supposedly independent inspectorate in a variety of ways.”
He concludes:
“An independent inspectorate: In theory, it is fine. In practice, of course, people do not like it.”
As to the part that will be played by the existing inspectorate of constabulary in the combined inspectorate, we had a debate at the beginning of our consideration of this Bill about how the national policing improvement agency would sit alongside the Government’s Police Standards Unit and the independent inspectorate. As there is already a national policing improvement agency giving advice to police forces and the Government, and a Police Standards Unit operating in the Home Office that gives advice to Ministers, it is vital that the inspectorate sits properly outside the Home Office and is not interfered with in any way by Ministers. At the very least, that would avoid overlap, but it would also mean that the inspectorate could do its constitutional duty.
My concern about the matter was reinforced on a closer reading of the Bill. It transpires that subsection (3) of clause 25, which we will come to later, states:
“In exercising any of his functions the Chief Inspector shall have regard to such aspects of government policy as the responsible ministers may direct.”
That is a very wide phrase indeed; it appears to give Ministers power to direct the chief inspector in any way that they want. Furthermore, in clause 24 there is yet another order-making power. It says that the Government may
“by order confer on the Chief Inspector additional functions in relation to anything that is, or is an aspect of, a matter in respect of which he has a duty under this Part to carry out inspections.”
So the provisions contain sweeping powers under which the inspectorate could be directed in ways that it is difficult for us to foresee.
The purpose of my amendment is to enshrine a principle that I am sure the Government will accept as right—namely that the inspectorate should be properly independent from the Government. The amendment states that the inspectorate will
“not be directed by Ministers except where specifically directed under the provisions of this Act.”
I must say that in many respects the amendment is not adequate to protect the independence of the combined new inspectorate because of clause 25(3), to which I referred, under which the Government can effectively give the inspectorate new functions and therefore direct it to carry out those new functions as they see fit. However, even if the amendment is imperfect, the
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principle that the inspectorate should stand apart from Ministers should somewhere be written into the legislation.
It is extremely important that the public can have confidence in an independent body that assesses whether certain standards have been met. That applies to our public services across the board, but as we discussed in the last sitting, it must apply particularly to the prisons inspectorate, the police and the other safety services caught under the new inspectorate. If not, the constant temptation for any Government, not just this one, will be to seek to influence the work of the inspectorate. That will result in confusion about the role of inspectors in some areas, which is to act as advisers to Ministers; that is certainly the case for the inspectorate of constabulary. That role may be proper, although I question whether it is necessary given the plethora of bodies established under the new arrangements with the national policing improvement agency. Nevertheless, that advice cannot be a two-way street; it cannot result in the inspectorate being directed or influenced by the Government. There is concern that that will be the case.
In our debate on the previous amendment, I mentioned the importance of ensuring that the inspector of prisons is someone of independent standing who brings a fresh eye to the inspection regime and commands public confidence in his or her pronouncements. That has too often not been the case for other aspects of the inspectorates. For instance, in relation to the police, the senior inspectors of constabulary are drawn from the ranks of serving chief constables. There is a very close relationship between them and other chief constables. They are not allowed to inspect their own forces, but nevertheless the networks are very strong. I question whether that is the right arrangement for an independent inspectorate, or whether we need people from outside the police service who have some expertise, but more importantly, have an independence that enables them to enter and assess properly whether forces are performing up to scratch. Perhaps setting up a combined independent inspectorate provides the opportunity—I see that the Minister is shaking her head—to entrench that independence. I accept that that may be an argument for the combined inspectorate, although my concerns stand about the prisons aspect. However, that constitutional independence should be enshrined in the Bill.
The Parliamentary Under-Secretary of State for the Home Department (Fiona Mactaggart): It might be helpful if we start with the definition of inspection that the Government set out in their policy on the inspection of public services, because that includes an important commitment. As a first rule, it defines inspection as an external review that should be independent of the service providers. Inspectorates should also provide assurance to Ministers and the public about the safe and proper delivery of the services, contribute to their improvement, report in public and deliver value for money. It is right that that quick summary of the function starts with independence, which the hon. Gentleman emphasised.
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The hon. Gentleman reflected on whether previous inspectors had experienced the kind of independence that rhetoric has always rightly praised in the House. An inspectorate that is a poodle to a service, or its creature, cannot inspect and provide the critique of performance quality of a public service for which we depend on it.
Lord Ramsbotham, who was previously the chief inspector of prisons, has rightly reminded us of moments of tension between him and the Home Office. Whatever statutory provision we establish will be there—and it is right that it should be. In a way, it is almost necessary that civil servants will keep trying to do things their way, because if there is never any tension between them and the inspectorate, one will wonder whether it is being sufficiently independent. On Second Reading, the Home Secretary said that
“the key point for me is the independence of the inspectorate, which must be spiky, particularly when considering the conditions of detention”.—[Official Report, 6 March 2006; Vol. 443, c. 617.]
Unless that relationship is spiky and has moments of difficulty, it will not be a reflection of the right independence of relationship.
Have we achieved that in the Bill? I am confident that the Bill already achieves the effect sought by the amendment. The complete independence of the chief inspector from the Government is guaranteed, in so far as it is possible to guarantee it by legislation, by virtue of the establishment of the office as a statutory post, as is the case with existing chief inspectors in the justice sector. Ministers will not have the power to direct the chief inspector, other than where a statute provides for it. The hon. Gentleman mentioned that clause 25(3) contains a requirement for the chief inspector to have regard to aspects of Government policy and asked whether that would infringe their independence. They will remain entitled, as is made clear in the provisions about reporting and so on, to challenge Government policy and procedure to bring about improvement, including where a bad policy is producing the wrong outcomes for service users.
The power to which the hon. Gentleman referred ensures that, if necessary, Ministers can guide the chief inspector in accordance with policy on the broad purposes of inspection, such as assurance, service improvement and obtaining value for money, and obtain his or her expert views on the outcomes achieved on policy objectives. For example, we have a policy objective to reduce reoffending. All parts of the criminal justice system ought to play a part in achieving that outcome. It is a matter not only of what happens to people in prison, but of what happens to people under supervision in the community, how the police deal with criminals and how the court and the Crown Prosecution Service function. All those parts of the system can have an impact on reducing reoffending. It would be quite proper for Ministers to ask the inspectorate to have regard to that Government policy when conducting an inspection, but they will not have the power to direct the chief inspector what to conclude or how to conduct the inspection. Absolute independence will remain.
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10.45 am
The hon. Gentleman also referred to the possibility of conferring additional functions on the inspectorate by order. At present, we can confer additional functions on many of our criminal justice inspectorates by fiat. One of the reasons that we are seeking to pass the Bill is to obtain parliamentary scrutiny of the possibility of doing so by order. I share his feeling about some of our inspectorates that started within the service. They risk—let us not put it more strongly than that—becoming too cosy. In some ways, the tradition of involving them in senior appointments, training, staff development and so on is not fundamentally appropriate for inspectorates, which need a kind of spikiness and distance.
We have therefore taken the opportunity not to put that within the purview of the inspectorate, but there might be an occasion—perhaps that of appointments to some independent body—on which the view of the inspectorate would be appropriate. We do not want to rule out that possibility, but if it is done by order, we could discuss it in Parliament and it could be done properly.
The hon. Gentleman’s remarks have hit on the nub of the matter. The Bill is an opportunity to create an inspectorate that has a direct relationship with Ministers, direct accountability and the ability that our chief inspectors have, which he said the former chief inspector valued so much, to stand up and give it straight to the person responsible for service quality. We have maintained that relationship—the inspectorate will be an independent officer of the Crown—but by bringing the inspectors together, we have given ourselves the opportunity to infuse the inspectorate with the independent qualities that every parliamentarian I have heard speak about it values in the prisons inspectorate.
We recognise that the prisons inspectorate, because it performs human rights inspections, has some particular qualities. That is why we have created the special duty relating to prisons—so that it will not be subsumed in the general duties and so that that quality will be maintained.
I am confident that the amendment would not add anything to the chief inspector’s independence from the Government, which is already complete and equal to that of existing chief inspectors. Although chief inspectors of all kinds criticise the system for trying occasionally to infringe their independence, I have yet to meet an effective chief inspector who thinks that the system beat them and succeeded in infringing their independence. I therefore urge the hon. Gentleman to withdraw his amendment. It is not necessary, and we are all united on the issue.
Nick Herbert: I am grateful for the Minister’s response, because she recognised some of the concerns that have been expressed and shared some of the views that I set out about the need to maintain an independent inspectorate. Much of what she says is reassuring.
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I have some continuing concerns, and some observations, however. First, I worry whether the provision in clause 25(3) that
“the Chief Inspector shall have regard to such aspects of government policy as the responsible ministers may direct”
may prevent the chief inspector from speaking out against and criticising Government policy. The Minister shakes her head. If my worry is incorrect, it would be helpful if she said so on the record, because it is important to send out the correct signal about the independence of inspectors and their ability at times to say things about the operation of policy that are difficult for Governments to accept. It is an important caveat.
Secondly, I accept what the Minister said about the possible need to confer additional functions on the chief inspector under clause 24. She said that they would be debated in Parliament, but I wonder whether they will be, because I suspect that they will be made under the negative resolution. There may not be any opportunity for debate about those additional functions, but that is just a minor, though familiar, point about the order-making powers.
My substantive point relates to whether it is a good idea to enshrine the independence of the inspectorate, and the chief inspector in particular, in the Bill. The Minister’s argument was not to criticise the idea that the inspector should be independent, but to say that the amendment is unnecessary and that its provisions are already guaranteed. If I heard correctly, the guarantee is offered simply by creating the statutory office of the inspector. I do not see why that in itself should guarantee the independence of the position. Many statutory offices are created by legislation, and it does not necessarily mean that they are independent.
Given that I am sure the Minister shares the desire to maintain and enshrine that independence, will she reflect on whether it would be a good idea to insert that independence in the Bill? It would not harm the operation of the inspectorate, but it would make it clear to the public and to the appointees themselves that they have an independent role and they are expected to fulfil it. I do not wish to press the amendment, but I should be grateful if the Minister reflected on that point and responded to my specific concern about whether the chief inspector might not be permitted to speak out in criticism of Government policy.
Fiona Mactaggart: May I remind the hon. Gentleman of the words that I used? Perhaps I spoke quickly, in which case he might not have been able to recall them. I said quite specifically that the chief inspector will remain entitled to challenge Government policy and procedure to bring about improvement. That will include situations in which a bad policy is producing wrong outcomes for service users. I hope that that gives him the assurance he seeks.
Nick Herbert: I am grateful, and I am sorry to have missed that reassurance when the Minister first provided it. It is helpful. On that basis, in the hope that she will reflect on whether a specific provision for
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independence should be put in the Bill and on the basis that we can return to the issue at a later stage, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Chairman: With this it will be convenient to discuss the following: Clause stand part.
New clause 4—Establishment of joint secretariat and planning unit for criminal justice system inspectorates—
‘(1) There shall be a body to be known as the Joint Secretariat and Planning Unit for Criminal Justice System Inspectorates (in this Part to be known as “the Joint Secretariat”).
(2) The Joint Secretariat will co-ordinate—
(a) Her Majesty’s Inspectorate of Constabulary,
(b) Her Majesty’s Crown Prosecution Service Inspectorate,
(c) Her Majesty’s Inspectorate of Court Administration,
(d) Her Majesty’s Inspectorate of Prisons,
(e) Her Majesty’s Inspectorate of Probation, and
(f) The immigration enforcement system.’.
New clause 5—Appointment of chief executive—
‘The chief executive of the Joint Secretariat shall be appointed by a panel comprising the chief inspectors from: Her Majesty’s Inspectorate of Constabulary; Her Majesty’s Crown Prosecution Service Inspectorate; Her Majesty’s Inspectorate of Court Administration; Her Majesty’s Inspectorate of Prisons; Her Majesty’s Inspectorate of Probation (“the Criminal Justice Chief Inspectors”).’.
New clause 6—General duty of the secretariat and planning unit—
‘The Joint Secretariat shall work with the Criminal Justice Chief Inspectors to provide—
(a) the promotion and support for area inspections and joint thematic inspections,
(b) links to inspectorates of other services, such as Her Majesty’s Chief Inspector of Schools in England; the Adult Learning Inspectorate, the Commission for Healthcare Audit and Inspection, the Commission for Social Care Inspection and the Audit Commission,
(c) administrative support for the Criminal Justice Chief Inspectors, and
(d) capacity for joint planning of reports between the Criminal Justice Chief Inspectors.’.
New clause 7—Regulations for establishment of joint secretariat and planning unit—
‘(1) The Secretary of State may by regulation make provision for the establishment of the Joint Secretariat and in particular for—
(c) sums for the provision of pensions,
(2) Regulations under this section shall not be made unless a draft of the regulation has been laid before, and approved by a resolution of, each House of Parliament.’.
Lynne Featherstone (Hornsey and Wood Green) (LD): Liberal Democrats have no objection in principle to the proposed merger of the inspectorates for police, Crown Prosecution Service, courts, prisons and probation service. However, we are concerned that in practice it will be counter-productive and decrease rather than increase the expertise in each inspectorate. There is widespread apprehension about the proposals, particularly in the police and prison sectors. As we heard in an earlier debate, the prisons
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inspectorate is respected worldwide for the way in which it safeguards the interests of people who are confined by law away from public scrutiny in the closed and often isolated institution of prison. It is a closed system to which public and media access is minimal, so our duty to safeguard those who are vulnerable to abuse behind closed doors is paramount. We cannot abdicate that responsibility for the sake of convenience or of structural links that would in any way diminish that speciality.
To uphold the standard of work, the inspectorate has to be able to focus on the specific institutions, to set its own criteria rather than being under undue influence in terms of Government targets and—I am reassured by what the Minister said—to report publicly and directly to the Minister. As we have heard, the prisons inspectorate is special; it has specialist knowledge on how to detect abuses. We fear that merger will inevitably result in knowledge being lost and, as the hon. Member for Arundel and South Downs (Nick Herbert) said, the independence of the prisons inspectorate being compromised and the discovery of abuses diminished.
I want to consider more deeply the issue of independence. The Irish Commission for Justice and Peace, in examining the feasibility of the establishment of an inspectorate in Ireland, looked at the UK and around the world for best practice. It set out seven main requirements for independence, which seem pretty sound to me. They cover matters such as the need for the inspection be enshrined in legislation and to be appropriate to the prison system being inspected; for the inspectorate to enjoy a sufficient degree of independence to be proof against coercion, obstruction, intimidation or institutional bias; for resources to be adequate to ensure sufficient frequency and breadth of inspection; for personnel to be of the highest integrity and competence; for the inspectorate to be able to publish reports and findings quickly and without restraint and to secure their scrutiny by appropriate committees; for the inspectorate to be free to encourage public and media discussion of its reports; and for the inspectorate’s findings and recommendations to be able to secure an adequate response by Government and appropriate authorities. I would welcome the Minister telling us how much of that is included in the proposals.
For me, the most telling comments on what is about to happen are those of Anne Owers, the chief inspector of prisons. She calls the current climate an “uncertain and uncharted landscape” and, in the context of a growing prison population, she argues that the consistency and human rights focus offered by a specialist prisons inspectorate is all the more needed. However, she points out:
“at the same time, the inspectorate itself faces major structural change.”
That is the change that we are arguing against in our new clauses, which aim to protect the quality and independence of the prisons inspectorate.
Ms Owers is clearly worried and unconvinced by the Government’s arguments. She states in her annual report:
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“Ministers have said that they are committed to preserving the integrity of custodial inspection in its present form”,
but she clearly doubts their ability to do so under the new legislation. She continues:
“The question is whether that internationally recognised expertise can be ‘bottled’ and preserved within a much larger, differently focused, inspectorate. The Bill now before Parliament provides for a specific duty to inspect places of custody. That is welcome, and the legislative provisions will need to be carefully examined.”
She says that statute can guarantee only the outline, not the ethos, which the Minister mentioned, and the functioning of an organisation. The Government have said that they want the special focus of prisons inspection to “infuse” the new body, but Ms Owers points out that the other side of infusion is dilution. What has made the prisons inspectorate successful has been its specialised, human rights-based focus on a single phenomenon—the conditions and treatment of those detained by the state—and the fact that it acts under the sole authority of a chief inspector who is associated only with that issue and who speaks directly and with specialist knowledge to Ministers, Parliament, the public and the media.
11 am
The prison system will face huge changes and challenges in the next few years, and it is vital that it continues to be objectively and independently inspected robustly and in detail. Ministers say that that is what they want, but in the conclusion of her report, Ms Owers says:
“However, I remain concerned about whether it will be possible to legislate, and to create a structure, that ensures that this is what future Ministers will get.”
It is clear that she has doubts about whether the spikiness will be spiky enough on both sides to maintain that independent and tense relationship, and about whether the Government will have the spikes, rather than the prisons inspectorate. I think that that says it all. Ms Owers is highly respected and ultimately knowledgeable, and supports the view that we put forward.
I want to address one more aspect of what is effectively a merger. Work on mergers in private industry found that about 80 per cent. of mergers are either unsuccessful or find that their constituent parts are diminished; the cost is large; and there is an effectiveness lag, particularly during the reconstruction. The prisons inspectorate will go through uncertainty and change for about 18 months, during which time safeguards need to be in place.
I therefore hope that the Government will think long and hard about the prisons inspectorate and consider our proposed new clauses in a serious and constructive manner. We understand that they want to join up governance and that they seek improvement with the changes, but we are concerned that they might not get improvement. The model might allow for thematic studies and offer joined-up governance without so diluting—to use Ms Owers’ word—the
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specialisms within each inspectorate. It might give the opportunity to best apply joined-up governance without that specialist loss.
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