Oral evidence: Prison reform (Governor empowerment and prison performance), HC 548
Tuesday 31 January 2017
Ordered by the House of Commons to be published on 31 January 2017.
Members present: Robert Neill (Chair); Alex Chalk; Philip Davies; Kate Green; Mr David Hanson; John Howell; Victoria Prentis; Keith Vaz.
Questions 289 - 371
Witnesses
I: Helen Boothman, Secretary, Association of Members of Independent Monitoring Boards, John Thornhill, President, National Council of Independent Monitoring Boards, and Elizabeth Moody, Deputy Ombudsman Complaints, Office of the Prisons and Probation Ombudsman.
II: Peter Clarke, HM Chief Inspector of Prisons, HM Inspectorate of Prisons, and John Wadham, Chair, National Preventive Mechanism.
Written evidence from witnesses:
– Prisons and Probations Ombudsman
– National Preventive Mechanism
– Association of Members of Independent Monitoring Boards
– National Council of Independent Monitoring Boards
Witnesses: Helen Boothman, John Thornhill and Elizabeth Moody.
Chair: Good morning, everyone. Thank you very much for coming to this evidence session for our inquiry into prison reform—in particular, the operation of autonomy and some of the inspection arrangements. As usual, can I ask members of the Committee whether they have any interests to declare? Mine are set out in the register. I am a non-practising barrister and a consultant to a law firm.
Victoria Prentis: I am a non-practising barrister who represented the Prison Service for many years.
Alex Chalk: I am a practising barrister.
Keith Vaz: I am a non-practising barrister.
Kate Green: I am a member of the Magistrates Association.
Q289 Chair: I welcome our first panel of witnesses. We have quite a bit to cover, so we will try to move swiftly. Could each of you introduce yourself for the record? Then we can move into the questions.
Elizabeth Moody: I am Elizabeth Moody. I am deputy prisons and probation ombudsman, with responsibility for investigating complaints.
John Thornhill: Good morning. I am John Thornhill, the president of the National Council of Independent Monitoring Boards.
Helen Boothman: Good morning. I am Helen Boothman. I am currently secretary of AMIMB, which is the independent charity set up 36 years ago by members of IMBs, for members of IMBs.
Q290 Chair: Let us start almost at the beginning, as they might say. In their White Paper, the Government observe that they are thinking of creating a statutory purpose for prisons. There isn’t one at the moment. Is that a problem? Do you think it is a gap in the system? Ought we to have some definition in statute of what the purpose of prison is?
John Thornhill: There is an argument that says yes, on the principle that that means that a prison can be taken to task if it fails to meet that statutory purpose. It seems to me that it gives the statutory basis for what we expect prisons to do. The issue will be ensuring that we cover what we need to cover in the statutory purpose. When I look at what is proposed at the moment, with the four headings, it seems to me that it covers most of what we need to say.
Chair: That is very helpful.
Helen Boothman: I agree with David Ramsbotham that a single-minded purpose for prison will be helpful all the way through, in terms of the role of the prison officer, the remit of the prison and helping out with resettlement. To me, the role of prison has to be reform of the individual. The objective of the prison is to get the individual out of there as fast as possible, leading a law-abiding life outside.
Q291 Chair: Putting that into statute would not be a problem for you.
Helen Boothman: No.
Elizabeth Moody: In terms of where we in the ombudsman’s office can give an evidence-based answer, that is really outside our role. We can see benefits in it, but it is not something on which we have a strong remit.
Q292 Chair: That is fair enough. Not everybody will wish to comment on everything. I understand that.
John Thornhill: The single, overarching principle is stated in the words “safe, decent and secure environment,” with the four specific purposes that focus the operation of the prison.
Chair: I understand that. That is useful. There is clearly an argument for the statutory purpose. We are promised that major legislation is coming to cover this area. If we have a prison and courts reform Bill, as I am sure we will—fairly soon, hopefully—there have been suggestions that we take it as an opportunity to do quite a major overhaul of the whole system, perhaps looking at reviewing or replacing the Prison Act 1952. Does it need to be reviewed or replaced, or can it be kept alive?
John Thornhill: Between us, we could spend a long time answering that question. Clearly, the issue is that it is a 1952 Act. The landscape and circumstances have changed significantly since that time. It would be right to look at what it says in the Bill. From our perspective, there are some things that might be considered for inclusion in the Bill. Maybe we will raise some of them later, in terms of the concerns that members have about who has legal responsibility to respond to certain issues. That is a very important factor that needs to be put in the Bill, whether it is a regulator or whatever. That is where IMB members have severe frustration. I think Helen would agree with me on that.
Q293 Chair: We will move on to that. It is helpful to have those comments.
Helen Boothman: The biggest fear is the time that it is taking. IMB reports for the last 18 months to two years have highlighted the seriousness of the crisis. Things need to happen now. For me personally, the issue is how long it would take to overhaul the 1952 Act. Things are needed now.
Q294 Chair: Let us move on to the other bit of this. I have talked about changes to the statutory framework, but there is also the whole question of governor autonomy. I would be interested to know your assessment, from your experience, of the capacity of prison governors to deal with the new freedoms they have. They are getting the ability to manage budgets and procurement to some degree. Equally, they will have the obligation and desire to build a rehabilitative culture and to keep prisons safe, which we have just talked about. Do you think there is the capacity for them to do all those things at the same time?
John Thornhill: There is certainly capacity across the estate, but if we are going to give governors greater autonomy to manage budgets and run their establishments and greater control over contracted-out services, they will need to be given support to do that. They might also have to be given training, because they are not used to dealing with outside contractors in that way. If that is to be the case, maybe there is a need for a different approach to the scrutiny of what happens in prison establishments. There are some very good governors out there, but we could all say, “Here is one prison, A, and another prison, B. They have the same op cap—750 prisoners—and are in the same category, but this one is working well and the other is not.” We therefore need to identify why the differences are there and who has the responsibility for managing those differences and redressing the imbalance.
Helen Boothman: It is not specific to capacity, but an issue annual reports have focused on recently is the turnover of governors and senior managers, and the number of acting-up people, because of the shortage not only at prison officer level but throughout the Prison Service and at governor level. As one governor said to me not long ago, “It’s motivational Wednesday today.” The morale of governors and senior managers is as low as that of prison officers, so there is a big task ahead in managing and motivating them.
As an observation, I note that governors are operational managers. They may be moved from offender management to security, safer custody or equality, but their skill set is that of an operational manager, not an offender manager specialist. My personal observation is that sometimes things get lost. If it was a private company, I do not believe that would happen as readily. You would have your best people in the role, to deliver your objectives.
Q295 Victoria Prentis: Do you have any specific experience of how things are going in the reform prisons? Was there sufficient testing of the model before it was rolled out?
John Thornhill: The view that is coming back from IMB members is that the model has not been tested as well as it ought to have been. Therefore, we have ended up with inappropriate ways of managing situations.
Q296 Victoria Prentis: Can you give some examples?
John Thornhill: Some of the issues relate to how we deal with different types of prisoners, for instance, within one establishment. Prison is a very complex institution. Within one establishment, we have prisoners of different types, categories and needs. Sometimes we take an overall view, rather than looking at individual groups of prisoners and how they should be managed. One issue has been mental health. Sometimes we handle mental health just by putting people in segregation. Different prisons do it in different ways. We should really be providing services and support for prisoners who are classed as having mental health conditions, to support and work with them. It needs a clear skill set to be able not only to identify those needs but to devise and put in place programmes that can be properly monitored, to ensure that we respond to individual needs. The danger is that we say, “Well, it’s a prison.” It is not; it is more than that.
Helen Boothman: From speaking to other IMB colleagues, I do not think that there has been much coming out of specific reform prisons. From talking to a colleague at High Down, I know that there are regime closures and regimes are not fully running yet. You think, “What has been achieved so far?” I know that governors are still struggling with recruitment. Nevertheless, I think that it is too early. No specific measures have come out yet—none that I have seen, anyway.
Elizabeth Moody: We have not yet seen sufficient complaints or other issues in those prisons to form a view. We have views on what the risks might be, but we have not yet had experience of it in practice.
Q297 Chair: There is a specific point about the 45 minutes suggested under the 1:6 staffing regime, for example. Is that enough? Again, is it too early to say?
Helen Boothman: I wonder whether it is happening anywhere. That is my personal view. I do not yet have evidence that it is happening, to allow me to say whether it is right. There is some confusion about whether it is the key worker, in the offender management model, who has the case load of six, whether it is a prison officer, as a personal officer, or whether it is the ratio on the wing. I do not think that there is exactly clarity, or perhaps it is just me not understanding it.
John Thornhill: One of the problems, as many of my colleagues tell us, is that the personal officer scheme is not working effectively. When I go on to wings in prisons, one of the things I do is to look at what is on the outside, next to the cell door. It often says “Prisoner number”, “Prisoner name” and “Personal officer”. Nine times out of 10, there is nothing under “Personal officer”. If you talk to prisoners and staff, you find that the system is not working. If you are going to put in a new system of 1:6—whoever it may be—you have to say, “Do you have enough staff to do it? Are they trained effectively?” You need to be very clear about what their role and responsibility will be in relation to the six prisoners they have personal responsibility for. There is a lot to be worked out at the moment. Just saying 1:6 is simplistic.
Helen Boothman: Where officers are currently tasked with being personal officers, how many times have I seen in a prisoner’s p-NOMIS file—the reports they have to do on a regular basis—“This prisoner has not come to my attention.”? To me, that sums it up. Only by exception are prison officers really grasping—
John Thornhill: It is a negative rather than a positive approach.
Helen Boothman: Yes.
Q298 Mr Hanson: I have a question for John and Helen, in particular. I think I know what the monitoring boards do and the Committee thinks it knows what you do, but I would very much welcome your telling us what you think you do. What do you monitor? How do you engage with staff, prisoners and management generally? How do you operate? What matrices are you looking for?
John Thornhill: At the beginning of last year, we published a national monitoring framework. We will be delighted to send copies to every member of the Committee, if they so wish. That is the standard by which monitors who are in prisons undertake the role of monitoring. Our role is underpinned by the United Nations optional protocol to the convention against torture—OPCAT. We also work under the principles of United Nations rules such as the Mandela rules for adult male prisons, the Beijing rules and the Bangkok rules. Our role is to monitor fairness, decency and justice for the prisoners—whether the outcomes of the regimes and the operation of the prison are fair, just and humane, and, where appropriate, whether the prisoners are properly prepared for release from the establishment.
Boards visit prisons on a regular basis. They are certainly there on a weekly basis, sometimes two or three times a week. It depends on the establishment. They have the right, freedom and independence to go wherever they like in the prison. They can talk to prisoners out of the sight and hearing of officers. They can question and challenge the director or governor of the prison. They are always invited to the monthly meetings that boards hold, so they are asked to come and respond to issues that members picked up when they were in the prison. The purpose of the national monitoring framework was to show that there should be a focus for our monitoring. We should not just go in and walk around. It is always useful to do that, to be there, to talk to prisoners and to hear, but it is not just that. It is about having a focus.
Helen Boothman: We are a broad church of volunteers—1,300, 1,400 or 1,500 of us—and we do things differently. Where there are good monitors, there is definitely a move towards collating the evidence not only that we see and hear but that we can find out through stats or whatever. It is about talking to prisoners and staff, verifying the evidence we get, trying to back it up with any stats that we can find and putting it into context. For example, one prison may pay its pensioners £2.50, but another may pay them £7 a week. That needs to come into it as well.
Q299 Mr Hanson: Could you each give me one example of something that has changed in the last 12 months in a prison or in policy nationally as the result of an IMB visit?
Helen Boothman: It can be little things like noise on a wing at night. The staff and the governor might say that it cannot be changed, but, if you pursue it, you find that you can change it. It might be raising an issue about an individual that has happened and taking it all the way to the Secretary of State, if need be—that the individual should not be in prison and needs to be in a hospital setting. There are examples of that. It can be tiny things. Recently, in the prison that I monitor, there have been issues about transgender prisoners having access to a range of colours of make-up that are outside the collective canteen sheet. By raising some of these issues, we get things to change and happen.
John Thornhill: I have two very quick examples. When I was going around a female prison, I said, “Ah, they’ve put in the modesty boards.” We had been asking for that, so there was a success. It was in shared rooms. If the females wanted modesty boards between the beds, they were on offer. They had arranged that. We went into the showers, where there was also an issue, but I do not remember the details. Dignity had been responded to on a day-to-day basis. Those are things that are often not quantifiable.
In another, very large, prison, an issue relating to families and visits was raised. It came to the notice of the board that there was only one telephone contact number that families could use to book visits. Of course, you can appreciate the impact of that. The board worked and spoke with the governor of the prison, and now there is more than one telephone line. They also got the number of chairs in the waiting room increased. Those are little things, but they are important issues—in that case, for families. It is about dignity and decency.
Q300 Mr Hanson: On the issue of unfettered access, are you aware of any occasions when a member of a board has been refused access to a particular part of the prison?
John Thornhill: I do not know of any. None has been brought to my attention. I am aware that, in one establishment, there was a suggestion from the governor that everybody who was going to visit the segregation unit should telephone first. The IMB members asked the question. I said that I thought it was inappropriate, because the whole purpose of our role is to attend anywhere in the prison unannounced, so that we see it as it is. That is important. The board has been operating in that way without any problems.
Q301 Mr Hanson: You have a relationship with the local governor, but you also have a relationship directly with the Secretary of State. As I know from experience, all the board reports land on a Minister’s desk and are seen by Ministers in detail. Is that a problem? Is there any conflict of interest between your local governor responsibility and reporting to a Secretary of State about things that governors may or may not be doing?
John Thornhill: No. Our responsibility and independence are such that we have the right to challenge, to report and to raise anything with the Minister of State at any time. Of course, we advise that the issues that go to the Minister are very serious, but for us there is no conflict. It is our responsibility and duty to report to the Minister and to report to the governor what boards and members see when they are in their establishment. Our annual reports are public documents, so the public see them. They have a right to see them, as do the media. In that context, it is our public duty to ensure that we report on what we see as happening in our establishments. I come back to this point: the frustration is that nobody then responds. I would like to say more about that at some point.
Helen Boothman: In an ideal world, the annual reports probably would not contain anything that referred to or reported on the governor, because the professional relationship that the board would have with the governor and the SMT would be such that, throughout the year, or when issues arose, the board would nudge the governor anyway. In the last 12 or 18 months, we have seen that all the annual reports are reporting on things outside the governor’s control. That has come through very strongly. It is when boards are so frustrated because nobody is listening that they write individual letters, whether to the DDC, Michael Spurr or the Secretary of State. There are numerous examples of what boards think of the feedback that comes—when there is feedback. Looking at Dartmoor’s annual report, I am shocked that after three letters to those individuals, by recorded delivery, and reminders, the board still did not receive a reply.
Q302 Mr Hanson: There has been discussion about a lot of the scrutiny that is happening, with various bodies undertaking scrutiny and duplication of scrutiny. There has been a suggestion that the role of Peter Clarke and the prisons inspectorate could absorb the work of the IMBs, because that is the model that has been operating in Scotland. Can you give me either a nod of agreement or a voice of dissent on that suggestion?
Helen Boothman: HMIP and the IMBs are part of the same family, but we are not immediate blood relatives. We are slightly further apart than that. The roles are different. To me, Andrew Selous had the best way of describing it. When he was Prisons Minister, he said that the security light is the IMB and the searchlight is HMIP. The other way of describing it is that IMBs are the CCTV, running continuously, whereas HMIP is the snapshot, every three years.
Q303 Mr Hanson: John, if you agree, that is fine. If you disagree or want to add something, please feel free to do so.
John Thornhill: I agree with that in principle.
Q304 Mr Hanson: John, you hinted at frustration about the lack of response. Is there anything that might strengthen your role as IMBs generally that you think should be included in the forthcoming Bill, which may be published within the next two weeks?
John Thornhill: As Helen said, there is severe frustration among members, who feel that what we say is not listened to. The responses that we get are sometimes anodyne and do not tackle the real issues. It seems to me that no one has the legal responsibility to do anything about the serious issues that we raise. The annual reports raise serious issues. We would like to see provision in the Bill for someone to be legally accountable for ensuring that actions are properly and effectively taken. In our submission to you, we recommended that prison governors should produce an action plan for the IMB. That would be one step, because it would show clarity in understanding what the real issues are and would set out a plan to respond to them. However, that in itself would not be sufficient. We said that consideration should be given to having something like a regulator. It is certainly not for the IMB to be a regulator. We monitor, observe and report. Somebody should then have the legal responsibility and accountability to respond.
Helen Boothman: Somehow, there needs to be a formal response. The system has not been working to date. With the Bedford riots, when Michael Spurr had a conversation with the chairman of the Bedford IMB, he said that he would have intervened, had he known. Where are the letters going? Why are the system and the communication not working as one would hope? If it means putting legislation in place, that has to be.
Q305 Mr Hanson: The Bill has not been published yet, so this is a difficult question. From what you are aware is happening, and from what the White Paper has said, is there anything coming down the line that you strongly object to?
Helen Boothman: In the White Paper?
Mr Hanson: And the potential Bill.
Helen Boothman: To me, it is more about what the White Paper does not say, rather than what it says. This is based on the evidence of all the IMBs. I am absolutely startled that there is no mention anywhere of the older prisoner and the rapid 125 train—or whatever rapid trains are now—coming round the corner. Over-50s and 60s are the fastest-growing segment, demographically, of the prison population, but there is not one mention of the older prisoner population. That is a great concern for us, as it is for the PPO and many others. Even the Justice Select Committee’s report on older prisoners, which called for a national strategy and overview, has not been mentioned or picked up at all.
For me, there is also the overcrowding issue. That means looking at the alternative of putting in resources but reducing the population in a safe way. I know that time is tight, but can I mention a third issue? One of the fastest-growing segments coming down the line, in terms of offences, is people convicted of sexual offences. Sexual offenders are mentioned twice in the White Paper. To me, if this is overall reform, there is not enough that addresses the needs of the population, either today or tomorrow.
John Thornhill: It comes back to the point we made earlier about how we manage different groups and categories of prisoners in one establishment. The other issue I would like to raise is the significant increase, which we all know about, in deaths in custody. I get copies of the reports on all deaths in custody every week. Increasingly, I see reports about prisoners in their 80s. In fact, in one week, four of the five reports on deaths in custody were for over-80s, one of whom was 90. That is an issue that has to be tackled. Are we managing the situation effectively and properly? Again, the White Paper does not refer to that in as much detail as it should. Maybe that detail is to come. That category of prisoner, with a high age profile, is increasing all the time.
Q306 Mr Hanson: I will give you two a rest for a moment. My final question is for Elizabeth. It relates to placing the prisons ombudsman on a statutory footing and where the ombudsman fits into society as a whole at the moment. Have you any indication where we are with that in relation to the Bill? What would be your preferred option—to get the office on to a statutory footing or to remain as you are?
Elizabeth Moody: We would definitely like to have statutory footing. Our understanding is that it will be in the Bill. What we want from it, as a minimum, is unfettered access to information and to people. That ought to include unfettered access in the case of contractors, and to contractors of contractors, which is becoming an increasing issue. As a minimum, we also want there to be a duty to respond to our recommendations. In an ideal world, we would like there to be a duty to implement our recommendations, but, as a minimum, there should be a duty to respond.
Q307 Mr Hanson: Some dangerous radicals have even suggested that you might report directly to Parliament. Is that something that would be seen favourably? Are you in a position to comment on that?
Elizabeth Moody: I do not think that we would have any objection to doing that. One of our issues is that prisoners and families often do not see us as independent and point to the fact that we are part of the Ministry of Justice. One concern would be the status of our staff, who at the moment are civil servants. If there were to be a change in reporting arrangements, we would want to be sure about what was going to happen going forward. Reporting to the Ministry of Justice is a problem.
Q308 Mr Hanson: There is no indication at the moment that the Ministry of Justice is going to let you float off into new territory.
Elizabeth Moody: Not that we are aware of.
Q309 Kate Green: Can I go back to Helen and John? As we are talking about independence, what do you see as the key strengths, if any, and weaknesses of the model of appointments to IMBs by the Secretary of State?
John Thornhill: The appointments are made by the Secretary of State, but the appointment process we have is totally managed by the team of public appointees. From start to finish, we have support from the secretariat, who manage the administration. The interview panel, for instance, will be members of the board and an independent interviewer, who is another public appointee and IMB member, who has been trained with the support of the Judicial Appointments Commission. They make the recommendations as to who should or should not be appointed. The formal recommendation—the written recommendation—then goes from the secretariat to the Minister. The decision on the appropriateness and suitability of an individual candidate for appointment is down to the public appointees who will be their colleagues when they are appointed to the board. We get administrative support from the secretariat to deliver that.
Q310 Kate Green: Do you have any concerns about the model you have described?
John Thornhill: We would like to see it sharpened, with the focus improved.
Q311 Kate Green: What do you mean by that?
John Thornhill: We have changed the system in the last 12 months to make the independent interviewer, who comes from a totally different board and for whom we provide the training, the chair of the panel. That mirrors to some extent the public appointments process, in that we have an independent chair. We have done that. I do not think that there are any serious issues with it. There have been issues to do with conflicts of interest and what people see as conflicts of interest, but you always have that. The recruitment and retention working group is looking at establishing a panel of public appointees—IMB members—to look at those, with support and guidance from the secretariat; but the final decision will be with the panel, which is made up of public appointees.
Helen Boothman: From the viewpoint of members on the ground, independence is often seen as compromised, because the only way of finding a vacancy to join an IMB is through the public appointments website. Not long ago, local boards recruited locally, just as prisons used to recruit locally, but that all changed and it went into the central pot, which appears not to be as independent as it should be. In feedback from the Karen Page review of IMBs, which happened in 2014, it came across strongly that the structure and governance of IMBs means that we are not seen as independent, because of the position of the secretariat, which sits in the MOJ, and because we are civil servants and not, like the PPO, the Parole Board or HMIP, a separate organisation. Therefore, members do not feel independent, as we would like to be.
Q312 Kate Green: Have you any sense how other stakeholders—prisoners or prison staff, for example—perceive IMB members as a result?
Helen Boothman: A lot of prisoners perceive us as management; perhaps it is true in some boards historically. We know it is a problem that we are always trying to overcome. Hopefully, we are moving there. A lot of staff in prisons know that we are independent and are volunteers. I do not know about the other stakeholders. They will probably be in the know.
Q313 Kate Green: A few moments ago, you described IMBs and HMIP as part of a family, but with a different modus operandi and different functions. How would you respond to suggestions that you could be merged into one organisation, albeit with different approaches and roles or, alternatively, merged with the prisons and probation ombudsman?
Helen Boothman: I do not think that there is enough evidence coming back from Scotland yet to say whether that model is working well. To me, the reports the independent prison monitors are producing there seem a little empty by comparison with what the visiting committees provided. I am sure that it will take time to professionalise and give better evidence, but one of the great strengths that monitors have is being there all the time and giving a narrative picture and description. Yes, that could still happen under HMIP, if we were given a completely separate head and department. For me, it is unknown territory.
John Thornhill: I attended the first prison monitors conference in October last year and talked to those who had recently been appointed to the boards. There was concern that there was lack of clarity about specifically what their role was and how it related. When we were in discussions, many of them knew about the English and Welsh system, but others did not. Those who knew about it said that there is greater responsibility on the IMBs to monitor effectively and greater independence in the English and Welsh system. There was certainly concern.
It was probably too early to tell how effective the system would be. The monitors are managed by four paid co-ordinators. The scale is 10 times greater in England and Wales. We have 1,500; they have 150. If you wanted paid co-ordinators, you would be looking to pay 40 co-ordinators, for instance. What is the role of those co-ordinators when we already have a structure like that? We have regular monthly board meetings and regional meetings. Scotland did not have those. It may have them now, but these are developments. It is too early to look at whether that is appropriate.
We have different roles. Inspection is episodic. We are there and we achieve on a regular basis. We have memorandums of understanding with HMIP and the PPO, so that we work together. We have the same raison d’être, as has already been said, but we work in different ways. Those different ways are important. One thing that I believe we have a responsibility to do is to monitor the outcomes from HMIP reports and PPO reports, because we are there on the ground on a daily basis.
Q314 Kate Green: Elizabeth Moody, do you have any comments to make on merger? Do you see any opportunities or risks?
Elizabeth Moody: We are definitely not seeking merger with the IMBs. They are very different roles. I will leave HMIP to answer for themselves.
Q315 Kate Green: John, you have just mentioned the way in which the IMBs might be able to ensure the implementation of recommendations. What mechanisms would you favour to encourage governors and Government to respond to your recommendations and implement them more systemically?
John Thornhill: I do not think our role is to ensure the implementation of recommendations. Our role is to monitor how far those recommendations are implemented, again in the context of whether that improves outcomes for prisoners in those establishments. As Helen has alluded to already, we have many boards where relationships with governors are very good. When I have been on visits and have had an opportunity to speak to governors, many of them have said to me, “I like to have the IMB here, because they often tell me things nobody else tells me about what is happening in my establishment.” They can be little things, as we have said already.
Those relationships are important, but it is also important that it is very clear to prisoners where exactly we stand. You raised the issue of what prisoners feel about IMBs. In one of your submissions, a prisoner said, “Toothless.” That is very often because perhaps we do not manage the expectations of prisoners on a regular basis. They think we can get them a transfer. We cannot. They think we can get them their property back. We cannot necessarily. They think we can get them whatever it is they want. We cannot do that. We monitor how the regimes treat them, to achieve their desired outcomes, but we cannot change the rules in that sense. We are there to ensure that the rules are applied effectively. If we feel the rules are inappropriate, we have a right to raise that in other forums. That would be right. As a magistrate, you will appreciate that, if we think there is bad law, we do not change the law in the courtroom, but use our experience to bring that information forward, so that it can be looked at in a different forum. Our role is to monitor the outcomes for prisoners.
Q316 Kate Green: Finally, how do you respond to suggestions that there is a need for an independent regulator of prisons?
Elizabeth Moody: I am afraid that I will have to be very boring and say that is not something to which we can give an evidence-based answer.
John Thornhill: You know that our last recommendation was that consideration should be given to some form of independent regulator. It does not matter whether or not that is the title.
Q317 Kate Green: What would be different from what we have now? What would it do that does not happen now?
John Thornhill: Somebody would have legal responsibility. If you want to change the 1952 Act and to have a new prison Bill, it should be in there that somebody has the duty to ensure that action is taken on the serious issues that we raise. That is it. We are not entirely concerned about whether it is an independent regulator—the equivalent of Ofgem, Ofwat or whatever—provided there is somebody to whom we report and they will take the appropriate action.
Q318 Alex Chalk: Can I move on to performance measures and league tables? I will deal with that relatively swiftly, if I may. First, what do you perceive to be the shortcomings of the existing measures of performance, if any?
John Thornhill: We have two sets of performance measures: HMI sets of performance measures and NOMS sets of performance measures. We need to look at having some sort of clarity and consistency in those. I know there is a suggestion that there should be a single score for each prison.
Q319 Alex Chalk: Can you assist with what you perceive to be the problems that arise from the current arrangements? Is there anything specific? For example, is it impossible to compare apples with pears? Is there inconsistency? What are the problems in the current regime?
John Thornhill: It is this: are we comparing the same things? For instance, in NOMS’s paper, there is an issue about escapes. That is not somewhere else. Because we monitor under the OPCAT provision, we look at things like fairness, justice, decency and dignity. NOMS may monitor different things about performance. They may look at financial implications, for instance. It seems that at the moment no one looks at management. That is an issue that really needs to be looked at.
Q320 Alex Chalk: Is there general agreement across the piece that the current arrangement is a bit disjointed and opaque? Is that a view that is shared?
John Thornhill: There could be greater clarity.
Q321 Alex Chalk: Exactly. May I ask the other two witnesses?
Elizabeth Moody: It is not something we run up against in the course of our work, because we very much look at individual cases. A prison could have a top score, but we could still find an individual death or an individual complaint that had been badly handled.
Q322 Alex Chalk: That is helpful.
Helen Boothman: You are not comparing apples with apples. Comparing East Sutton Park, an open estate for females, with Pentonville or Brixton is crazy.
Q323 Alex Chalk: You will know that the Ministry is proposing a new framework of outcome measures and league tables. Do you think that the current proposals are a sensible, feasible new regime?
Elizabeth Moody: I am afraid that I am not going to offer a view on that. It is not something we run up against in the course of our work.
John Thornhill: There are real concerns about league tables. As I said, a prison is a very complex situation. It is a hospital, a residence, an education facility and a workplace. One of those might not be working as effectively as we would like it to work, whereas the others could be. How do you then create a single overall score for that establishment? What is the value of a league table? Ofsted, for instance, has league tables. It had league tables because parents could then show their approval or disapproval of the system by selecting or not selecting. In the case of prisons, that focus is not there.
Q324 Alex Chalk: Would you go so far as to say that applying league tables to prisons is a bad idea?
John Thornhill: Yes, I would.
Helen Boothman: Who is interested in the league tables? Who are they being prepared for? As a member of society and the community who knows about prisons, I think that if you have a single-minded purpose—the reform of the individual—everything has to come from that. Reducing reoffending, or how that person has changed since going through the prison system, has to be the only measure. What is currently proposed seems to apply to one portion of the population. For a prison where 60% of prisoners are over 50, those measures are totally inappropriate.
Q325 Alex Chalk: What do we do about the situation that, even in the current climate, some prisons are doing better than others? It stands to reason that some are better run than others. We know that there is a whole panoply of reports that can be issued, but, frankly, most people will not get into the granular detail of those. What is the way in which people can get a sensible assessment of how well a prison is being run without necessarily having to pore over pages and pages of documents?
John Thornhill: You could create a single score that uses the four criteria that HMIP uses. We have just introduced a new annual report template, where we ask in the executive summary that those questions are responded to. How fairly are the prisoners treated? How humanely are they treated? How well are they prepared for release, where it is appropriate? We are asking for a single summary executive statement about each of those, which is then supported by evidence in the body of the report. That is something you could use in the first instance.
Q326 Alex Chalk: Just so that I am clear, you are suggesting that, potentially, you could have scores under those headings, which presumably would be aggregated to a final figure. Wouldn’t that be a league table, effectively?
John Thornhill: It would be a league table, but we certainly do not want to put figures on it at this moment in time.
Helen Boothman: If you take it just as the reform of the individual, you can look at the skills and experiences—work experience or whatever—that he has produced, including MQPL, and attitudes and behaviour that have changed since he has been in prison, set against the objectives in his sentence plan or personal development plan, and aggregate those.
Q327 Alex Chalk: The MOJ has not yet determined what the implications of poor performance should be, however we go about assessing it. What process should be followed in addressing performance issues? How should IMBs be involved, if at all?
John Thornhill: It comes back to the fact that we report what we see. It is then for somebody else to pick up what we see and identify the causes of the failure in programmes or the poor quality outcomes for individual prisoners. They can be many and varied, as we have expressed, right across the board. Who then takes responsibility for looking at the reasons? Somebody has to identify those reasons. In an Ofsted report, there is a section on management and governance of the school. Who is looking at management and governance of prisons? We will give you the outcomes. Somebody then has to look at the causes of those outcomes and where those causes lie, be it management, training or something else. Presumably, it is for the employers to manage their employees in an appropriate and effective manner.
Q328 Alex Chalk: Are IMBs able at the moment to distinguish between those matters that are truly the responsibility of the governor and those that are the responsibility of national circumstances in the framework? Are you able to draw those distinctions?
John Thornhill: Yes. We are doing that.
Helen Boothman: There just needs to be a clear process. For example, if there has been a regional issue with the education contract, the Carillion contract or whatever, boards have raised that with the next level above the governor—the DDC or whatever. Boards are very clear about the process we use.
Q329 John Howell: Let me take you on to the issue of prisoner complaints. Do we see divergence in policies between prisons generating more prisoner complaints?
Elizabeth Moody: We can certainly see that there are some areas where, if governors had greater autonomy, they would be able to deliver results more effectively, but we think that there would be some real concerns in terms of prisoner complaints. For example, I know that various people have made the point when giving evidence that prisoners move from one prison to another and there can be lack of consistency in what a prisoner can expect when they move from one prison to another. We see that to some extent already when a prisoner moves from one high-security prison to another. Although there is a general facilities list, it will vary very slightly from prison to prison. Prisoners can find that something they have been allowed to have in their possession at one prison, and indeed were allowed to purchase while they were at that prison, they are not allowed to have at the next prison. It sounds like a small thing, but it causes a lot of frustration and lack of trust and engagement between the prisoner and the prison. Obviously, it also leads to complaints. There is no doubt that it would lead to a lot more complaints if there were less consistency.
Similarly, within prisons, at the moment prisoners can expect to be treated in the same way as other prisoners, because there is a policy that says how they should be treated. If you have a much looser policy, you will be looking at an open door for individual members of staff to treat individual prisoners differently from other prisoners, with lots of scope for discrimination, unfairness and, clearly, more complaints.
John Thornhill: One thing that we hear regularly from prisoners is that there is inconsistency, particularly when, as Elizabeth said, they move from one prison to the next. When I talked to prisoners in one large prison about the incentives and earned privileges scheme, they said that there were even inconsistencies in the delivery of that between wings. That is unacceptable. If we have a common policy, it is right that governors are given the responsibility to implement that policy in the circumstances of their own establishment, but it must be consistent within the establishment. It must be consistent with individual officers, for instance. For me, there are three levels of consistency: one right across the board, across establishments, one within the establishment and one within officers. They must be consistent in how they deal with and treat each and every prisoner. That is where we have lots of complaints about inconsistency. Helen, I think you would agree.
Helen Boothman: Yes. There must be equity and minimum standards for prisoners. Coming back to complaints, I think that the complaints procedures in prisons have come into annual reports over the last year because of the pressure on staff in managing the complaints process. As an observation, the PPO always comments on whether or not a complaint has been upheld. With prison complaints, we never know whether or not they have been successfully resolved. Yes, there are all the performance measures about whether complaints are answered in a timely fashion and at the right level or whether they are answered at all, but the outcome is not measured or recorded anywhere.
Q330 John Howell: Has any of you given any thought to the implications for the resource capability, either of the ombudsman or of the Prison Service itself, of dealing with the increase in prisoner complaints?
Elizabeth Moody: We have not calculated a figure, but there will undoubtedly be resource implications, both for prisons and for ourselves. Prisons struggle at the moment to answer many complaints satisfactorily. Clearly, it would only be worse if there were more of them.
John Thornhill: One of the comments is about lack of timeliness in responding to formal complaints in prisons. Then the prisoners come to the IMB to say, “Can you do something about it?”
Q331 John Howell: What about the implications for prisoner legal challenges—for example, on their access to rehabilitation services—as a result of the changes that are going on?
Helen Boothman: I don’t really understand the question. Access to legal might be slightly different from access to rehabilitation.
Q332 John Howell: How many prisoners will start to take legal action to challenge legally the fact that they are not getting access to rehabilitative provision within the system?
Elizabeth Moody: The cutbacks to legal aid have meant that we see a lot less solicitor involvement and far more prisoners bringing cases to us themselves than was the case in the past.
Helen Boothman: I am aware only of the situation with IPP prisoners—indeterminate sentence prisoners—who are taking a lot of actions on delays with the Parole Board.
Q333 John Howell: Do you feel that you have the ability to intervene on behalf of prisoners?
Helen Boothman: No, that is not the role of IMBs. We can advise and signpost, but we cannot intervene on behalf of prisoners.
Q334 John Howell: Do you think that anybody has the right to intervene on behalf of prisoners?
Elizabeth Moody: That is our role, if a prisoner has made a complaint. If we find that a prisoner has been treated unfairly or inappropriately, we look to make a recommendation that provides redress in that particular case. If it is a generic problem, we would then make a recommendation to NOMS.
John Thornhill: There is a range of agencies and services within prisons that prisoners can access to help and support them on issues they want to raise, but it is certainly not our role as IMBs to do that. There is a current case in the High Court on this particular issue. We have made it very clear that our role is not to help the prisoner to make their application for parole or whatever. We can support them and signpost them in the direction of somebody who can, because we do not have the expertise to do it effectively and properly, but we monitor that they have that access.
Q335 John Howell: Are there sufficient opportunities for the prisoner voice to be heard?
John Thornhill: Yes, I think there are.
Helen Boothman: If you asked the prisoner population, they would say no.
John Thornhill: That is right, but—
Helen Boothman: I don’t think there are. The frustration that we have been seeing is when prisoners do not have a voice. Whether it is litigation or just trying to find their trainers that were lost two prisons away, nobody is listening or helping. If you are banged up for 23 hours a day, you are not in a position to do much about it yourself. I would say that perhaps there are not sufficient opportunities at the moment.
Elizabeth Moody: Although we exist and we receive a large number of complaints, there are various groups that are under-represented in coming to us, particularly people serving shorter sentences, young people and women. There are various reasons for that. I do not think they would feel, for the most part, that they had sufficient opportunity to obtain redress.
Helen Boothman: The voice of families and relations of prisoners is not heard. Whether that is the role of prison is perhaps for another debate.
John Thornhill: In terms of their treatment, the IMB raises the issues. I come back to the point that prisoners are frustrated because the IMB is “toothless,” to quote one submission. Another submission said that, if it had greater power to make things happen, it would play a very important role. That is not our role. We say that there should be somebody else and we would like to see that as a legal entity.
Q336 Chair: That is very helpful. I have a final thought. The White Paper says that the MOJ is reviewing all 500-odd prison policies and so on. Have your organisations been consulted on that review or involved in it at all? It is clear that the IMBs have not.
Elizabeth Moody: When they are reviewing a policy we might have an interest in, we are always consulted. We provide comments, if we have something to say.
Q337 Chair: Have you been consulted on the specific review that is going on at the moment and is referred to in the White Paper?
Elizabeth Moody: No.
Chair: Thank you very much for your time and evidence. It has been extremely useful to us. We are very grateful to you.
Examination of witnesses
Witnesses: Peter Clarke and John Wadham.
Q338 Chair: Good morning, gentlemen. It is nice to see you both. Can I move straight into the introductions for the record?
Peter Clarke: I am Peter Clarke, the chief inspector of prisons.
John Wadham: I am John Wadham. I am the chair of the National Preventive Mechanism.
Q339 Keith Vaz: Good morning. Both of you are hugely experienced in the criminal justice system, with an enormous amount of knowledge as to how it works. Mr Clarke, in 60 seconds, tell me what is wrong with our prisons.
Peter Clarke: Basically, they are unsafe; they are full of drugs; we have an ageing population; the physical environment is appalling; and there are far too many people in our prisons who are suffering from mental health issues. In my judgment, those five issues will create a major obstruction to the reform programme.
Q340 Keith Vaz: Mr Wadham, add to or subtract from that.
John Wadham: The NPM is a membership organisation. I would not pretend to have greater expertise than Peter. To the extent that I have any experience, I support his position.
Q341 Keith Vaz: Mr Clarke, who is holding up this reform? You identified the problems and talked about what needs to be improved. Where is the block in the system that prevents the changes that need to be made?
Peter Clarke: The issues I have mentioned are issues we frequently refer to in our reports. If I have a frustration, it is that far too often it feels as if our reports are falling on deaf ears—not in all prisons, but in some. Typically, the prisons that do not respond positively to our reports, and where there is hugely low uptake or implementation of our recommendations, are the prisons that do not improve, or actually decline, in the way they treat prisoners and in the outcomes that prisoners encounter there. In the time I have been in this job—one year—there are several very stark examples of that, where there have been very, very poor records of implementing our recommendations in particular prisons. It is no surprise to me that those prisons have not improved. Where does the fault lie for that? Quite simply, in some places—not everywhere—it is a failure of leadership.
Q342 Keith Vaz: At a central level or at a local level? At governor level or at ministerial level?
Peter Clarke: At both. To resort to anecdote for a moment, on several occasions when I have given fairly harsh feedback at the end of an inspection, the deputy director of custody—who is, in effect, the line manager for the prison—has come up to me and said, “Yes, I totally agree with that.” My thought is, “You’ve been presiding over this decline. What has been going on?”
Q343 Keith Vaz: Do you think that you should give timetables in your recommendations?
Peter Clarke: In response to our reports, action plans are drawn up by the prisons. It has to be said that they are of variable quality. We, as a small inspectorate, do not have the capacity to follow up on a regular basis the implementation of those recommendations. To my mind, that is a very clear responsibility of line management.
Q344 Keith Vaz: Mr Wadham, Mr Clarke talks about the practicalities, which of course are very important. Do you think that we probably need a new piece of legislation that will define statutory purpose—a new prisons Act—or is there no point in having more legislation, because the problem is the people who implement the law, not the law itself?
John Wadham: If legislation is being proposed, we have to be careful about what precisely it says prisons are for. From the point of view of the NPM, we want to make sure that one of the objectives of a prison system, and of prisons in particular, is to ensure that there are high standards of conditions and little ill treatment. When you ask that kind of question, you need to relate it to the work that Peter Clarke does and the expectations that he, as an independent inspector, creates for the standards of prisons. There is a question about whether you are going to create standards in prisons via legislation or whether you are asking the expert to set those standards, to police them and ensure that they are delivered, as far as possible. I am not sure that legislation that created objectives for prisons would necessarily create better conditions in prisons.
Q345 Keith Vaz: What about governors having more freedom to make decisions themselves?
John Wadham: The key question for the NPM will be whether that ensures that conditions are better and that there is no ill treatment. I am not sure that there is any evidence one way or the other on that. Peter may have a different view.
Q346 Keith Vaz: Mr Clarke, your evidence worries me. Here you are, the independent inspector, and you are telling this Committee that there is a failure of leadership on the part of the Ministry of Justice and a failure of local leadership to implement your recommendations, which you believe are very important in order to make the prison system better.
Peter Clarke: It is absolutely clear that there is a failure of leadership in some prisons, not all; I have to say that it is a mixed picture. Within the last fortnight, I inspected one of the most difficult prisons—
Q347 Keith Vaz: Which one?
Peter Clarke: Pentonville. We inspected that prison. As you know, it has a very troubled and difficult history. We have not published our report yet, so I will not be too specific, but we would say that because of some very proactive, intrusive and energetic leadership, the prison has shown some early signs not only of halting the decline but of improvement. They achieved a 68% implementation record on our recommendations, which is very high compared with some others. They actually built our so-called healthy prison tests into their business plan. To me, that shows a very reassuring acknowledgment of the value of what HMIP is producing. Sadly, it is not replicated everywhere.
Q348 Keith Vaz: Are you able to publish a list of prisons that have accepted your recommendations, as a percentage?
Peter Clarke: Indeed. Every one of our reports is published, of course.
Keith Vaz: We know that.
Peter Clarke: That includes the—
Q349 Keith Vaz: As we in the Select Committee system know, it is not just about publishing the report; it is about going back and seeing whether anyone does anything about it.
Peter Clarke: Indeed. That is all available, and we could easily produce it. What I can tell you is that, over the past year, there has been a decline in the overall number of our recommendations that have been implemented—and, most worryingly, a decline as regards recommendations in the area of safety. In fact, we are now at the position where more of our recommendations on the subject of safety are not being achieved than are being achieved.
Q350 Keith Vaz: Obviously, overcrowding is a big issue in our prisons. A concern of mine is the number of foreign national prisoners. The new figures for them came out this week. Why do you think there has been such a failure under successive Governments to send foreign national prisoners back to their country of origin? The total now is 4,500 just from the EU. The total that the taxpayer has to stump up is £169 million. You must have looked at this issue. Why can’t we ensure that the agreements we signed are implemented?
Peter Clarke: As you know, Mr Vaz, we also inspect immigration detention in this country. Many of the problems with foreign national prisoners in the prison estate are replicated in the immigration and removal centres and elsewhere. It would be simplistic to say that there is one single cause—there isn’t—but we frequently comment upon delays in casework. Sometimes those are inevitable, for reasons that are obvious and clear. Sometimes it is less clear why casework is delayed for as long as it is.
John Wadham: I do not have the experience that Peter Clarke has of talking to prisoners. When I accompanied him on one of his inspection exercises, the key issue from the point of view of foreign prisoners was, “My sentence has ended. What is happening to me? I can’t find out what is going to happen next. It is difficult for me to find my way through this bureaucracy.” It is not necessarily that people are trying to resist being sent back to another country but that they would like some clarity. Meanwhile, they remain in our prisons. That is not helpful from their perspective. I do not know what the strategic issues are, but there is a series of regular complaints from them.
Q351 Keith Vaz: I have a final question for you, Mr Clarke, on extremism. The Lord Chancellor suggested that we should take all the jihadists and put them into one area. You are vastly experienced on the issue of counter-terrorism and of course have the experience of writing the Trojan Horse report. Ian Acheson, who led the review of prison extremism for the former Justice Secretary, said: “the National Offender Management Service…responsible for managing prisons and probation, was an unloved, unlovely bureaucratic monster, dangerously out of touch with its operational heartland on an issue of national security importance… We encountered so much passivity, evasiveness, political correctness and inertia around the threat posed by Islamist extremism that we coined the phrase ‘institutional timidity’ to describe it.” Do you think that, as part of these reforms, it is still a good idea to put jihadists together in one area? What is going wrong with dealing with radicalisation in prison? Obviously, that is essential to the reform process.
Peter Clarke: First, I have not seen the evidence upon which Ian Acheson drew up his report and have not inquired specifically into that issue in prisons since I have been in this role, so it would be wrong for me to comment on it. From previous experience—in particular, from my experience during the Trojan Horse inquiry—I would say that, as well as having the deradicalisation strand of activity, you have to treat this as a question of safeguarding. That is terribly important in prisons, as it is in schools. There are people who are inevitably vulnerable, partly by definition, because of where they are. We know that young Muslim men, in particular, are vastly over-represented in the prison population. It is incumbent on the Prison Service to do everything in its power to safeguard those people from whatever influence could be exerted by those who might seek to radicalise them.
Q352 Keith Vaz: Mr Wadham, this is my last question to you. Will all of us—perhaps not you and us, but our successors—be back here in 10 years’ time talking about exactly the same thing: prison reform?
John Wadham: The issue for us is the conditions, and the danger of ill treatment, in all the kinds of ways that Peter mentioned. One of the things I would want to preserve at all costs for the future is the possibility that Peter, or his successor, and the IMBs will be back here to tell Parliament and this Committee exactly what the conditions are in prisons. That is a crucial role. It is an historic and traditional role, but it has been added to by the United Nations OPCAT, which you have heard a little about. It says that, in prisons all over the world, there are issues of ill treatment and issues about conditions. We have a great tradition in this country. We should use that tradition to continue to inform the policy leads, Ministers and Parliament about what is actually happening. We are privileged. Although many other countries have similar kinds of OPCAT bodies, they do not have our expertise and resources. I would urge that it would be good to be back here in 10 years’ time, so that you can hear evidence from people who have the greatest knowledge of how that is working in prisons.
Q353 Chair: You heard me ask the previous panel about this. The MOJ says that it is carrying out a review of all the 500-plus policies within prisons. Have your organisations been involved in that review or been consulted about it?
Peter Clarke: No, we have not.
John Wadham: No.
Q354 Chair: Mr Clarke, Mr Wadham thinks that having a statutory purpose for prisons is of merit. Do you agree, or is that not the key issue for you?
Peter Clarke: It is an interesting issue, but probably not the key issue. I can see no problems—indeed, some benefits—in setting out some statutory purposes for prisons. It brings a clarity that is perhaps lacking at the moment, although I have not yet seen a clear exposition of what those purposes might be. It seems to be a slightly moving landscape at the moment. What would concern me slightly would be the application to them of measurements or metrics, which could change from month to month, year to year or Government to Government. My role at the inspectorate is very clearly to apply independent, objective standards that remain over time. I would be concerned if it were suggested that using whatever metrics are devised by Government to apply to statutory purposes should become the means by which we judge the performance of prisons.
We are working very closely with the Ministry of Justice to see how, in our inspection methodology, we can explore the gaps and overlaps between statutory purposes and the healthy prison tests that we use at the moment. There is a lot of overlap where we will be able to capture much of the statutory purpose material. What we do not want to get into, as an inspectorate, is looking too much at the internal bureaucracy or management of prisons. That is not our purpose. We are there to look at the outcomes for prisoners.
John Wadham: It is crucial that the independent inspector sets the expectations for prisons, and measures prisons in relation to those. There is a great danger that the Government, albeit under the cloak of legislation, may decide to try to tinker with that. That would be a mistake.
Q355 Alex Chalk: Can I explore that? Why shouldn’t the Government say, “What we think, as representatives of the people, is that prison is for protecting the public, for reform, keeping prisoners safe and so on. We invite you, exercising your discretion and doing whatever you need to do, to assess against those metrics.”? Why is that so objectionable?
Peter Clarke: It is not objectionable. It is absolutely right that the Government should say, “These are the things we want to achieve through prison.” Where it gets difficult is if the Government start setting standards and saying, “These are the standards. These are the measurements that we are going to apply to decide whether or not we are successful.” There needs to be an independent element that says, “The broader standards this country has signed up to internationally”—we have international obligations—“are the standards that we need to apply as an independent inspectorate.”
It is a role for line management to decide how well they are managing their budgets and so on. It is definitely a role for inspection to say whether there are elements of leadership or management that directly impact upon outcomes for prisoners. That is why, in our revised expectations, we are building in for the first time not measures but some indicators of what we expect to see in terms of effective leadership and management, but only in so far as it affects outcomes for prisoners.
Q356 Alex Chalk: Fine. No one would suggest that you could not comment on any other things you wanted to comment on and apply your own standards. Are you saying that there is an objection to assessing prisons on the basis of what the Government set out as the really important priorities for imprisonment? Is there resistance to doing that?
John Wadham: No, I do not think that there is resistance to doing that. There is resistance to its being a substitute for an independent process. When you started your meeting this morning, there was a discussion about conflicts of interest. I have been involved in independent assessment of public sector bodies with Governments of both perspectives. The issue is that Governments have their own agenda—quite rightly. They are elected and they are entitled to have that agenda. There is a separate question, which is that they have a conflict of interest. If they decide that there are not sufficient resources to build more prisons, or if they want to increase the prison population—or the courts do—and there are difficulties, they will have some difficulties making decisions that would create expectations about conditions, overcrowding and so on. That is why you must have an independent inspection system.
Obviously, if you have an independent inspection system, it is for the inspector to decide what the tests, the standards and the expectations are, as Peter Clarke does. That is crucial. It is not to say that the Government cannot go ahead with developing their own standards. I work in other countries, in central and eastern Europe. You can imagine that Governments there would want to set the standards—
Q357 Alex Chalk: Forgive me, it is not the Government; it is Parliament. If Parliament says, “We think that this is the purpose of prisons. We think that prisons should be safe—that we shouldn’t have people escaping—and that prisoners should have proper mental health treatment,” and we debate and decide that, what is the problem with your saying, “Fine. We will measure against that”?
John Wadham: I am reluctant to say this, but Parliament is the Government of the day to a large extent—not completely; of course, the Select Committee is part of the process of holding Government to account. Governments with majorities, whether they are the Blair Government or any other, will have their own agenda. That is why you have bodies outside Parliament and Government whose job it is to hold the public sector to account, particularly in relation to people in vulnerable positions who are detained. That is a different factor. It is not that Parliament does not have an accountability role. The final decisions about the expectations would be taken by Parliament, which would be dominated by the majority party at any particular time. I am sure that you know the constitution as well as I do.
Q358 John Howell: In that context, can I raise the question of how you will measure good leadership? In your expectations consultation, it is one of the things that you say you are going to measure. How will you do that?
Peter Clarke: One thing that we are not going to do is measure good leadership as a concept. Part of the consultation around the forthcoming Bill and what we are putting into our new expectations has revolved around what we are looking for in leadership. At one point, the suggestion was that the Bill might contain a provision like, “We should be inspecting the quality of leadership.” To my mind, that is far too abstract a concept. The inspectorate of prisons is not a management consultancy, so we cannot come up with our model of leadership. What we can do in the course of inspection is see very clearly whether poor or good leadership has had a detrimental or a beneficial impact on the outcomes for prisoners.
To take a mundane example, if on the landings there are no forms for prisoners to make complaints or applications, why is that? Is it because whoever is supervising the wing has not put them out and made sure that they are there; is it because the governor with responsibility for the wing has not put them there; or is it because there is a culture that says, “This isn’t important.”? That is a mundane example, but when we talk about leadership and management, I mean at all levels, from the governing governor right through to the wing. You could draw on many examples.
It is important that we look at it. Traditionally, we have not really done so. We have perhaps shied away from it a little, because our focus has been unequivocally on outcomes for prisoners. It is incumbent on us, and important for us, to look at this and to see the impact of good leadership. I have seen poor leadership in prisons and I have seen some excellent leadership. I will give you one example of why visible leadership is a key element. If, as I walk around the wings of a prison, a group of prisoners approach me and say, “Are you the governor?” it tells me an awful lot about the visibility of the leadership in that prison.
Q359 Kate Green: This morning we have heard from four different institutions that oversee prisons. Is that enough? Is there a model? Does it work?
Peter Clarke: By and large, I think it works, but I do not in any way rule out future change. It is complicated. Who goes into a prison and, to some extent or other, looks at it and inspects it? Certainly, HMIP. HMI probation will be there with us at times. Ofsted will be there, as will the Care Quality Commission and the IMB. The General Pharmaceutical Council may be there and the health and safety inspector will be there at various times. There is a raft of people. Luckily, the amount of collaborative work is such that the scope for confusion is managed and minimised, to an extent. That does not make it any less complex. Nevertheless, there is a huge amount of collaborative work.
That feeds slightly into the question of whether we need a regulator, which I heard discussed in the previous session. My personal view is that, with the burden of inspection that prisons already have from so many bodies, they do not need regulation; they need line management. The role of a regulator is to enforce compliance, basically. That is what needs to happen. I do not think that another independent body coming in and repeating what others have already said is required.
John Wadham: I do not want to embarrass Peter too much, but he and his team are experts. I followed them around in Pentonville. Without disclosing the report, which has not been published, as Peter has already said, I was amazed by the quality of the work that his team did. Ofsted and CQC were also part of the team—the point Peter has just made—and saw themselves as part of it. They were doing different parts of the process of inspection. Of course, it is complicated, but, as far as I could tell, they were drilling down into the detail. They were talking to the staff and the prisoners. As far as I could tell, they had complete access everywhere. I was amazed by how good that was.
There is a second part to the question, I guess, which is about our colleagues who gave evidence earlier. There is nothing in the UN protocol on whether you must have different systems. Many countries have one body that does all the inspection and monitoring. The tradition that we have is that there are paid experts, independent of Government and Parliament, although I would like to talk about parliamentary accountability at some point, if possible. There is also something about having individuals who are not paid by any public body or the state, who are local to the prison or detention establishment and who, with some training and assessment, are entitled to wander around the prison to check out what the state is doing on our behalf—how it is treating the people down the street who are locked up. I think accessibility and transparency for IMB colleagues is crucial. It makes the architecture more complex, but both traditions are important.
Q360 Kate Green: You said that you wanted to say something more about parliamentary scrutiny.
John Wadham: Yes. I was the deputy chair of the Independent Police Complaints Commission and the general counsel for the Equality and Human Rights Commission. I guess that is my conflict of interest. I have seen the relationship between the sponsor Department and non-departmental public bodies, and have real concerns about how it works. Ministers and civil servants interfere. I have given some written evidence to another Select Committee about that issue. They do not interfere in a gross way, because of the nature of the traditions we have in this country, but they do get in the way. To give you an example, when I was deputy chair, the Home Office was making decisions about whether I should get a pay rise or whether I should be reappointed. At the very same time, we were investigating the death of Jean Charles de Menezes in Stockwell, yet the Home Office, including one of the permanent secretaries, wanted to talk to me about exactly how they would do that.
I am not sure whether Peter and I agree on this, but I think that a better arrangement for accountability of independent bodies—members of NPM—would be for them to be accountable to Parliament, in the same way as the parliamentary ombudsman is. That is a bigger issue, which will not be in the Bill, but it is important. It is also important that a guarantee of independence exists for the inspector and all 21 organisations that are part of the NPM—the CQC and so on. There needs to be a greater degree of what we would call separation of powers, to ensure that people are clearly independent and seen to be independent, and that Parliament guarantees their independence.
Q361 Kate Green: Peter, have you had any discussions with the Ministry about reporting directly to Parliament?
Peter Clarke: I have not had discussions with the Ministry about it, but I have a view. I fully understand why my predecessor, the PAC and the Harris review two years ago said that the inspectorate should report and be accountable to Parliament. I have looked at the issue very carefully over the past year. I have spent much of the past year engaged in two things, which have led me to a particular conclusion. One is the development of the protocol between us and the Ministry of Justice, which, for the first time, sets out explicitly the independence of the role and what independence means. Possibly more importantly—I hope in response to our submissions to the Ministry and to this Committee—the forthcoming legislation will include for the first time specific reference to the inspectorate itself, to the UK’s obligations under OPCAT and to its being the role of the chief inspector to decide inspection frameworks and so on.
If all that were to come into legislation, the effect would be that Parliament would become the guardian of our independence, because only Parliament could then take it away again, through another piece of legislation. In some ways, that might even be a stronger protection of independence than our being accountable in terms of being appointed by Parliament. If you are appointed by someone, you can also be removed by them, I suggest. If the legislation comes through with what it promises to come through with, I would be quite assured by that. I would welcome the fact that Parliament would become our guardian.
Q362 Kate Green: How confident are you that the legislation the Government bring forward will do all that? Could you talk to us about any differences of view you might already be aware of between yourself and Ministers?
Peter Clarke: For some months now, we have been involved in what I can only describe as very constructive discussions with the MOJ about the legislation. So far, all the elements I have referred to, and others to do with the requirement for the Secretary of State to respond to our recommendations and, in extremis, where we have real concerns about an institution, to intervene, look to me to be reflective of what we put in our submissions to this Committee and are very welcome. Of course, as always, one waits to see what is on the face of the Bill.
John Wadham: As a footnote, I am surprised that I have not been consulted on the draft Bill, particularly the parts that relate to the NPM rather than to Peter. Of course, if Peter got everything he wanted, that would be a great thing. I would go slightly further, but I will wait to see the draft Bill, or the Bill when it is published.
Q363 Mr Hanson: Peter, I want to be clear that you know who you are going to hold to account for the performance of prisons under the new regime.
Peter Clarke: Is it for me to hold people to account for the performance of prisons?
Q364 Mr Hanson: In relation to the recommendations that you make. The Government’s direction of travel, which we are still waiting to see, indicates greater freedoms for local governors and greater removal from central control, but ultimately Ministers will remain accountable for the service. Who do you expect to respond to the recommendations that you make, at local level, in the inspection reports that you will produce under the new regime?
Peter Clarke: My sense is that the Secretary of State takes the view that the Secretary of State herself should hold a responsibility for responding to the recommendations made by the inspectorate. There will be a published document in response to our recommendations. If there is a published document, to my mind, that in itself is a level of accountability. This Committee, Parliament itself and the public can look at it and see what is happening. I would not want the inspectorate to be responsible for following up and pursuing. When we next inspect an institution, we will certainly look at how well it has done in responding to our recommendations, but we do not have the capacity to go back on a six-monthly or yearly basis to see how it is doing. In my opinion, that must be the role of line management, which is NOMS.
Chair: That is very helpful.
Q365 Alex Chalk: These are questions that I asked the previous panel, in respect of league tables. Do the existing measures of performance do the trick, in terms of providing a ready reckoner of how prisons are doing, or do you think we need to change them? If so, are league tables the right answer?
Peter Clarke: It depends on what you mean by how prisons are doing. In terms of how prisons are doing against our healthy prison tests, I think it is quite clear. I believe that our gradings are widely understood. They are transparent; they are published; and every report carries a rationale for the grading. Those of you who have been on inspections will have seen—as the Chair has—the care that we put into coming to those markings during the inspection. Other elements of a prison’s performance, in so far as they relate to facilities management, budget management and HR issues within the prison, are not for us, I suggest.
Q366 Alex Chalk: That being the case—that there are different spheres of responsibility—is it your view that it does not lend itself to the blunt instrument of a league table, or are you saying that there is a way? Of course, it is about accessibility, isn’t it? People have to be able to make a snapshot assessment without having to read what you say and what someone else says and laying it all together. Is there a role for a league table?
Peter Clarke: I am all for snapshots. That is what we do through the inspection process. We are a snapshot in time.
Q367 Alex Chalk: But an overarching snapshot.
Peter Clarke: I am not for very blurred snapshots. My fear is that that is what an overarching judgment would be. I struggle to see how you would get sufficient valid comparators to make league tables meaningful. There are so many variables across every type of place of detention that it would be immensely difficult to get a meaningful league table.
Q368 Alex Chalk: Is there anything more that could be done to improve the digestibility of all the relevant assessments, so that people could form a fair and meaningful judgment?
Peter Clarke: Our focus is on the prisoner experience, which is unique. We are the only people who come at this entirely from the prisoner experience. In that way, we are different from the MQPL assessments. They look at the prisoner’s assessment of the prison, while we look at the prisoner’s experience in the prison. I would say that our judgments are understandable and quite clear, but, as I said, we are working with the Ministry of Justice to see how we can bring the statutory purposes into our overall assessments. As you say, it must be done in a way that is comprehensible, absolutely clear and not confusing. That is what we are working on at the moment, to find a way of doing it.
It would be most unhelpful to have two parallel sets of performance assessments coming out, one from NOMS and one from us. We need to get something that is composite, but not composite in the sense of an overarching judgment. In prisons, if you try to impose an overarching judgment in the same way as the CQC or Ofsted do in health or education, you run enormous risks of artificiality and, potentially, superficiality. There is even a risk of danger if you smooth some of the judgments, particularly around safety.
Q369 Alex Chalk: I wonder whether people said the same thing about schools back in the day. I am very sympathetic. Equally, we have to find a way for people to be able properly to form a judgment. I wonder whether there is a danger, therefore, of it all getting a bit blurred and difficult.
Peter Clarke: I agree. Earlier Mr Vaz mentioned my experience in Trojan Horse. My experience there was that I looked at some schools that had received overarching outstanding judgments. When I looked more closely, I found that the curriculum had been narrowed, segregation by gender was going on within the school, the children were taught to be intolerant of other ways of life and there was unequivocal evidence of the teacher body holding misogynistic, homophobic and anti-western views. The children were not being equipped for future life in multicultural Britain, but the school was judged to be outstanding. I would not want that to happen in prisons.
Alex Chalk: That is helpful.
Q370 John Howell: My questions are similar to those about prisoner complaints that I asked at the end of the last panel. Could you concentrate on whether you think that the resources are sufficient to deal with what we have heard is likely to be an increase in prisoner complaints?
Peter Clarke: Clearly, it is a matter for the PPO. At this precise moment, I do not know what their resource projections are for the future. I do know that in the last few years they have dealt with a considerable increase in workload very well, considering the resources they have available. I also know that I have a substantial postbag from prisoners, very often complaining about the prison. I have to respond by saying, “First, you have to exhaust the prison’s complaint system. Then you have to go to the PPO or try approaching NOMS.” Frankly, it all feels a bit cumbersome to me. Too much is dependent upon whether, at wing level, those forms are in the trays and, if they are, what happens to them. How quickly do people respond? Are those responses meaningful? This is where I come back to the quality of management and leadership within the prison.
Q371 John Howell: Let me ask you a question about the opportunities for the views of prisoners to be heard. Do you think those are sufficient at the moment?
Peter Clarke: I would probably echo the view you heard from the previous panel, which is no. Even if I am to believe just some of the stories I receive in my postbag, it is clear that there are blockages in some places. Clearly, it adds to the frustration of prisoners if they do not feel that quite reasonable requests can be heard. I have seen it on several inspections. I do not get mobbed on a wing, but often I am approached by significant numbers of prisoners. Very often, their complaint is about mundane, day-to-day issues—getting equipment, getting supplies, getting some bedsheets, getting some clothing, getting their canteen and so on. It is low-level stuff that has an enormous impact on how a prisoner feels about their day-to-day existence.
John Wadham: As I said, I have parallel experience in relation to setting up the Independent Police Complaints Commission. We had some plans for how big it was going to be, but it turned out to need more resources. Since it was set up in 2003, the increase in resources to the IPCC has continued. Because the PPO has a parallel jurisdiction—not just in relation to complaints, but in independent investigation of deaths in custody and so on—and the figures are going up, there are real issues about the resources available to the complaints process for prisons. They will know much more about the details, but I would be surprised if they had the resources. Certainly, the IPCC could not do as many independent investigations as we wished, because we did not have the money or the staff available. That has changed, but it was the case for a long period.
Chair: Gentlemen, thank you very much for your clear evidence. It has been most helpful to us. The session is concluded.