Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel & South Downs, Conservative)

I beg to move amendment No. 142, in clause 21, page 22, line 13, at end insert ‘and’.

Greg Pope (Hyndburn, Labour)

With this it will be convenient to discuss the following amendments: No. 143, in clause 21, page 22, line 14, leave out ‘and Custody’.

No. 145, in clause 29, page 28, leave out line 6.

No. 146, in clause 29, page 28, line 11, at end insert—

‘(1A)Subsection (1)(a) shall only apply—

(a)after a period of at least five years from the commencement of this Act;

(b)if an independent review commissioned by the Secretary of State concludes that it would be desirable for Her Majesty’s Chief Inspector of Prisons to be replaced by the Chief Inspector; and

(c)subject to an order to be laid before, and approved by a resolution of, each House of Parliament.’.

Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel & South Downs, Conservative)

These amendments are about the proposed creation of a chief inspector for justice, community safety and custody. No doubt our clause stand part debate will give us the opportunity to discuss the overall merits of creating the combined inspectorate. We will come later to amendment No. 44, which will enable us to discuss the independence of   the inspectorate, but the amendments before us deal specifically with whether it is right to subsume the inspectorate of prisons into the new, combined inspectorate. Considerable worry has been expressed outside the House that that will compromise the independence of the inspectorate of prisons. The inspectorate has a special place and therefore needs to be treated differently. I shall explain why.

First, it should be clear that special conditions are attached to the inspection of prisons. It is obvious that they are closed environments in which neither we, as parliamentarians, nor the public know what happens unless someone explains what is going on. That makes the operation of the prison inspection system different from other aspects of the criminal justice system that may be more visible to the outside world and media scrutiny. We therefore rely absolutely on having a robust, independent prisons inspectorate to fulfil that task.

Secondly, prisons, by definition, have great power over the lives of individuals, so the inspection process needs to take particular care that prisoners are treated properly and that their human rights are observed. The director of the Howard League for Penal Reform, Frances Crook, observed that

“The primary purpose of prison inspection should be to consider human rights and the implementation of internationally agreed standards. When dealing with the loss of freedom the very highest standards of accountability are necessary.”

I am sure that we all agree.

Thirdly, the chief inspector of prisons reports directly to the Home Secretary and Parliament. The worry is that, if the chief inspector had broader responsibilities and a wider brief, that would reduce the intensity of their focus on the treatment of prisoners, which, as I explained, is particularly important. The chief inspector of prisons has a right to go unannounced into any prison in the country at any time. In fact, half of all inspections are unannounced. This week, I asked a former chief inspector of prisons what notice he gave for the inspection of prisons. He said that he gave no notice, and that he would descend on prisons. I am sure that we all agree that that is the right practice to adopt.

The chief inspector of prisons has not only the right to speak directly to Ministers and the Home Secretary, but the right, which the current inspector and her predecessors have exercised, to speak apart from Ministers and to express worries about the condition of prisoners. That right makes Governments uncomfortable, but I am sure that we all respect it and recognise that it is necessary.

Fourthly, there is a major difference between the prisons inspectorate and the other chief inspectors. They tend to come—I think that they almost always do—from the services that are being inspected. That is how they arrive at the positions to which they are appointed. The chief inspector of constabulary is a former chief constable. Other chief inspectors act as principal service advisers to Ministers and sit on departmental management boards. That makes them rather less independent than the prisons inspector, who generally does not come from the Prison Service, but is an independent person of high standing. The   prisons inspector does not act as a principal service adviser to Ministers and does not sit on departmental management boards.

I am sorry that the Minister for Policing, Security and Community Safety has just left the Committee because I was about to raise a particular point. When I met her recently to discuss police reorganisation—I was grateful for the briefing that she offered me—to my surprise, one of the inspectors of constabulary was present. I had not been given notice of it, although I was grateful to meet him and to be briefed by him and the Minister, but it indicated the extent to which the inspectorate and Ministers sit together. In that case, the inspector of constabulary was specifically advising the Minister on police reorganisation, but that is not the relationship that an inspector of prisons would expect to have with the Home Secretary or other relevant Minister.

Fifthly, the proposed inspectorate is designed to deliver the Government’s principles of inspection, which are drawn up by the Audit Commission, but that body does not inspect; it audits. It is designed to provide public assurance and service improvement that is proportionate to risk, and it offers value for money. However, regulation and audit are different from inspection. Regulation and audit can reasonably be carried out by internal teams. Especially in the arena of human rights, inspection cannot and must not be carried out internally. It is essential to separate the two.

Our concern about the provision is reinforced by the fact that, under clause 25, Ministers will be given powers to direct the chief inspector, and that includes the prisons inspectorate. It seems dangerous to ignore the history of the independent prisons inspectorate. Its independence arose from an Act of Parliament of 1835. It remained unchanged until 1962, when the Prison Commission was abolished. Significantly, it was replaced by a prison department within the Home Office.

Home Office inspection, which was not independent, continued until 1981, when a report chaired by Mr. Justice May specifically recommended the re-formation of an independent inspectorate, not least because of the loss of pubic confidence in the objectivity of in-house inspection. The danger of creating a combined inspectorate, of which the prisons inspectorate will be part and which is capable of being directed by Ministers, is that we will recreate a system of prisons inspection directed by the Home Office of the sort that so undermined confidence in 1981 that a judicial inquiry recommended that it cease. We do not seem to learn the lessons of the past.

The concern that I express has been raised by a number of organisations. The Prison Reform Trust and Action for Prisoners’ Families say that there is little doubt that the Bill threatens to dilute the authority and independence of the prisons inspectorate—just at the point when such bodies would be needed to meet new UN requirements and when international criminal justice delegations are   preparing to adopt the British model. Similarly, the Howard League for Penal Reform has expressed concern about the provision. It said that, ideally, it would like clause 23 to be dropped from the Bill. Clause 23 gives the prisons inspector specific duties, and I suspect that the Howard League for Penal Reform means that it would like the prisons inspectorate to remain independent.

Our position was expressed elegantly by the former chief inspector of prisons, Lord Ramsbottom, in a letter to The Times of 17 March, which was co-signed by Lord Hurd of Westwell, the former Home Secretary, and Lord Dholakia, the Liberal Democrats spokesman for foreign affairs in the other place. They wrote:

“We deplore the suggestion and request the Government to withdraw the Inspectorate of Prisons from the proposed merger, allowing it to continue to carry out the role for which it was designed, and which it has carried out to the apparent satisfaction of everyone other than those who fear the accuracy, objectivity and content of its reports.”

Amendment No. 143 would remove the word “Custody” from clause 21(1), meaning that the prisons inspectorate would not form part of the new combined inspectorate. Were the amendment to be agreed, there would plainly have to be subsequent amendments to the rest of part 4.

As an alternative, amendment No. 146 proposes a delay in the establishment of the prisons inspectorate element of the combined inspectorate. In other words, the combined inspectorate could go ahead, but the prisons inspectorate would remain separate. However, if an independent review commissioned by the Home Secretary concluded that it would be desirable for Her Majesty’s chief inspector of prisons to be replaced by the chief inspector, that could happen, but only after a minimum period of five years and only subject to an order to be laid before both Houses of Parliament. Parliament would have a proper vote on whether it considered that to be a good thing. By agreeing to that amendment, the Committee would allow the combined inspectorate to be established unhindered, and it may judge that it would like to do that.

These are very serious matters. We shall come to the justification for the combined inspectorate; the Government have serious questions to answer about whether they are confident that the independence of the inspectorate, so important for the reasons that I set out, is going to be maintained under the provisions. We fear that it is not.

Fiona Mactaggart (Parliamentary Under-Secretary, Home Office; Slough, Labour)

I am glad of this opportunity to end the Trappist silence that has characterised my presence here today. I assure the hon. Gentleman that his fears are not well founded. It is important that members of the Committee be clear that our ambition is not to diminish in any way the impact, independence and effectiveness of Her Majesty’s inspectorate of prisons, but to ensure that the qualities that so powerfully characterised that inspectorate are infused through all the inspectorates in the criminal justice field.

The hon. Gentleman referred to a meeting that he attended with my right hon. Friend the Minister of State at which a member of Her Majesty’s inspectorate of constabulary was present. To some degree, his attendance—he was there merely to advise—reflects the fact of an unreformed inspectorate that has development and advisory functions, rather than independent inspectorate functions, within the police. As the hon. Gentleman knows, we are introducing the national police improvement agencies and other bodies that will provide those functions, so that the inspectorate function can have the very qualities of independence and sharpness of focus to which he alludes.

It is clear that the degree to which that quality is admired in Her Majesty’s inspectorate of prisons is a beacon for the rest of the criminal justice inspectorates. We do not hear about the quality of inspections in other areas, but we ought to. There is a particular quality about the inspection of people in custody. That is why in a separate clause we give a particular duty for inspecting the treatment and conditions of those in custody. We recognise that it is not enough merely to do it as part of a seamless, end-to-end criminal justice system, although of course we need that.

One of the weaknesses of our present inspectorate system is the way in which bits of the criminal justice system operate in silos, so that, for example, an inspection of someone’s treatment in custody does not carry through to their treatment under probation during the same sentence. When the police deal with an offender on his journey through the court system into custody or a community sentence, there is no mechanism to inspect any part of that process that might contribute to the likelihood that that person will not reoffend. That is important, but there is no way to do it.

It is unacceptable that we can inspect the operation of little bits of the process but not the whole. That is why we created an end-to-end inspection process, but we recognise that there is something particular about custody. The duty to inspect and report on the conditions of people in custody is different, to some degree. It is a human rights inspection rather than an inspection of the general process. Therefore, we need to ensure that it is properly dealt with, and we have done so with the proposed special duty.

The hon. Gentleman referred to a ministerial power to direct special inspections. That power already exists. It was used most recently when the Home Secretary directed Her Majesty’s chief inspector of probation to inspect how the probation service treated the cases of Messrs. Hanson and White—the men who murdered John Monckton. It is right to retain such a power with the Home Secretary—the power to request independent inspectorates to conduct an inspection of a particular case, incident or matter that should properly be examined on the public’s behalf. That power will work only if the inspectorate has the independence that has allowed the best of our inspectorates to be admired. That is why we intend to ensure that that independence is maintained.

The hon. Gentleman referred to his alternative amendment, which might enable the custodial element of the end-to-end inspection to be introduced after a time. He will notice that we have retained the power to commence different changes at different times in order to maintain some continuity—to ensure that the rigorous inspection of treatment and conditions of those in custody continues seamlessly, so as not to damage the high regard in which the inspectorate is held. I assure him that we will not abolish the post of chief inspector of prisons until we are certain that her role has been incorporated adequately into the new inspection system. We will allow the chief inspector to operate in parallel with the growing new inspectorate arrangements in order to sustain quality.

The new independent inspectorate depends on the qualities of independence, distance and rigour—the principles of excellence in inspection that are why the prisons inspectorate is so widely admired. Rather than bury that quality in others, we intend to ensure that the whole of the inspectorate reflects that quality in the way that it conducts its business.

Inspection of these areas is good, and can do its job, only if it is independent, and if inspectors are able to turn up unannounced. We have preserved the power to turn up unannounced and provided that the inspectorate will be able to determine its own inspection criteria, so that it can be absolutely independent and maintain the skills that it requires. I am confident that the advantages of having an inspections system that can inspect the whole of the criminal justice system from start to finish and that sustains the present independent qualities that are at the heart of the best of inspection will improve the way in which we conduct inspections.

It is clear that we need to move beyond an inspection regime that focuses on places—on the bits of the system—to one that can examine what happens the whole way through the system. If it examines only what happens to an individual when they are in prison and relies on another inspectorate to tell it what happens before and after, it cannot report credibly on the process of offender management from start to finish.

Assurances and recommendations that are based on an inspection regime that is not as unified as the system that it inspects are at best incomplete and at worst misleading. For example, it is no longer enough to assess the provision for an offender’s educational need by reference to the facilities available in prison without considering the provision in the wider community before and after custody. It would be possible to provide for the justice inspectorate to inspect offender management from end to end, including the custody element, and still leave the prisons inspectorate to inspect the treatment and conditions of prisoners as a separate issues. That would create a substantial risk of duplication and of conflicting recommendations.

The implementation of the national offender management system brings a new focus on reducing reoffending within the context of close working   between prisons, probationers, other Departments, and the voluntary and civic sector. If we deliver this, we can really make a difference.

Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel & South Downs, Conservative)

I thank the Minister for that reply, but I am afraid that I do not find it all persuasive. I shall give two examples to illustrate why our fears are well founded. She said that the inspectorate of prisons was a beacon and that the other inspectorates should rise up to that standard. It does not make sense to subsume the inspectorate of prisons in a system that is not operating as effectively as the independent inspectorate of prisons currently does.

Let us consider one example. The whole strength of the independent inspectorate of prisons is that the individual is appointed as a person of high calibre who does not necessarily have any prior expertise or knowledge about prisons. If we were to move to the proposed system, the overarching chief inspector would be appointed as such a person. The deputy, who would be responsible for prisons, might have particular expertise of prisons. Immediately, independence is lost. If that person were of independent calibre, why should they want to deputise for a chief inspector when they could not speak out independently or go directly to Ministers. They would only be deputising for the chief inspector. Therefore, people of the calibre of the current chief inspector or her predecessors would not wish to be deputies to the new chief inspector. As a consequence, the system will be captured in a way that it is not now.

Finally, on the Minister’s point about silos, of course it is important that inspectorates have a dialogue, but when the chief inspectors of the various services got together with Ofsted in 1999 and asked the Government to fund a secretariat that would co-ordinate joint inspections and process joint inspection reports, the Government refused to offer funding. There are perfectly sensible ways in which the inspection could proceed without combining the inspectorate.

I feel sufficiently strongly about the matter, as I know others do outside the House, that I believe the amendment should be pressed to a Division.