House of Commons - Inspection in home affairs and justice

Inspection in home affairs and justice - Public Accounts Contents

1 Securing independence of inspectorates

1. On the basis of a report by the Comptroller and Auditor General, we took evidence from the Home Office, the Ministry of Justice (the Ministry), Her Majesty's Chief Inspectors of Constabulary and Prisons, and the former Independent Chief Inspector of Borders and Immigration.[1] Broadly, all of these inspectorates focus on performance improvement and transparency, with Her Majesty's Inspector of Prisons also having a human rights focus, to report on the treatment of prisoners and conditions in prisons.[2]

2. In the home affairs and justice sector there are five main inspectorates, together employing around 370 staff. They have a combined annual spend of around £35 million, made up as follows (figures are in order of 2014-15 budgets). Her Majesty's Inspectorate of Constabulary (£21.4 million); Her Majesty's Inspectorate of Prisons (£4.5 million); Her Majesty's Inspectorate of Probation (£3.4 million); Her Majesty's Crown Prosecution Service Inspectorate (£3 million); and The Independent Chief Inspector of Borders and Immigration (£2.4 million). In total, around £20 billion of public money is spent each year on the areas these five inspectorates examine.[3]

3. Departments can exert considerable influence on the strategic direction of inspectorates through their control of the process for appointing Chief Inspectors and for setting the inspectorates' budgets. We therefore asked the Chief Inspectors whether the current appointment, accountability and budgetary arrangements allowed them to be truly independent.[4]

4. By statute, the decision as to who to appoint as Chief Inspector and the length of their appointment effectively rests with the relevant Secretary of State.[5] The Chief Inspectors assured us that, despite this, relations with the relevant departments had been good and the conduct and content of their inspections had been independent.[6] However, they agreed that the inspection regime would be stronger and be seen to be more independent if there was a greater element of independence within the appointment and accountability arrangements.[7]

5. In the period between December 2014 and July 2015, four [of the five] Chief Inspectors operating across the home affairs and justice will have left their post or be due to go as the end of their period of office is imminent.[8] We found a lack of consistency in the length of tenure chosen by the departments for their successors. According to the Home Office, it appointed a new Chief Inspector of Borders and Immigration in February 2015 for a fixed period of only two years due to the close proximity of the appointment to the general election in May. In contrast, in December 2014, it chose to extend the tenure of the current HM Chief Inspector of Constabulary by five years, moving the start date to fit with the parliamentary cycle and take him through most of the next Parliament. In February 2015, in response to the resignation of HM Chief Inspector of Probation, the Ministry appointed an interim chief inspector for six months while it advertises for a permanent successor, and has decided that the successor to the current HM Chief Inspector of Prisons, whose five year tenure is due to end in July 2015, will only be appointed for a period of three years.[9]

6. In the opinion of HM Chief Inspector of Prisons, short tenures, such as this, were the worst of all possible worlds as it would take his successor a year or so to get up to speed, by which time their tenure would be coming to an end and they would either not want to re-apply or be 'looking over their shoulder' asking whether the Secretary of State liked them or not.[10] The Office of the Commissioner for Public Appointments has issued guidance that it expects people to re-apply for their appointment as they near the end of their tenure, rather than for these people to simply be appointed. This creates a tension for chief inspectors as there is a clear conflict of interest while their application for re-appointment is being considered. It was for this reason that HM Chief Inspector of Prisons has chosen not to re-apply for his position.[11]

7. The spending on four of the five inspectorates has on average reduced by 9% between 2010-11 and 2014-15. In contrast, HM Inspectorate of Constabulary's annual budget has increased by 66% over the same period to fund its programme of annual 'PEEL' (police efficiency, effectiveness and legitimacy) inspections of police forces. Despite the budget reductions, the Chief Inspectors considered that the departments had made sufficient resources available to them to provide for effective inspection.[12] They acknowledged that departments could potentially use their control over inspectorate budgets as a lever to influence chief inspectors, although did not consider this had happened to date. According to the Ministry, it had reduced the budgets of its inspectorates by less than it had reduced its own budget so that their independence could be maintained.[13]

8. Since the UK Border Agency was abolished in March 2013, responsibility for the delivery of borders and immigration policy rests with the Home Office itself.[14] The Chief Inspector of Borders and Immigration is therefore unique in the home affairs and justice sector in that he directly inspects the sponsor department which controls his budget, the Home Office. His reports, for example on immigration, have a direct impact on the Home Office, and it is the Home Office which has to respond to his work. However, the Home Office is also the inspectorate's sponsor and controls its budget.[15] We therefore asked the former Chief Inspector of Borders and Immigration about the impact of this on his independence. He stated that, as the office of Chief Inspector of Borders and Immigration was only established in 2008, there was no tradition of inspection in this area of public policy and he had been keen to establish his independence from the very start, principally through preparation of well-evidenced and thorough reports. Although he had not had anything other than a constructive relationship with the Home Office, the relationship had to be at a distance in order to maintain his independence.[16]

9. The Chief Inspector of Borders and Immigration is also unique in that he is the only one of the five chief inspectors who does not publish his own reports. Since January 2014, it has been the Home Secretary who has decided when reports should be laid before Parliament and published. Previously and since the inspectorate was first established in 2008, it had been the Chief Inspector who had done this. In our view, this change in reporting arrangements could undermine the Chief Inspector's independence.[17] We therefore asked the Home Office why it had introduced the changes. It stated that it had done this in the light of legal advice it had sought which stated that, under the UK Borders Act 2007 which established the inspectorate, it should be the Home Secretary who laid reports before Parliament and published them. However, legal advice obtained by the Chief Inspector, from Treasury Solicitors, concluded that the Home Office's interpretation of the legislation was neither the obvious nor the only interpretation of the law, and that his view that he should continue to publish his own reports was therefore also valid.[18]

10. Since the Home Secretary took control of publishing the Chief Inspector's reports in January 2014, there have been significant delays, of up to 163 days, between the reports' submission to the Home Secretary and their being laid in Parliament and published. According to the former Chief Inspector, lengthy delays in publishing reports risked reducing the effectiveness of independent inspection, which depended to a large extent on timely publication of findings as reports were based on evidence which degraded over time. Delays also contributed to a sense that the independence of the Chief Inspector's role was being compromised.[19]

11. We asked the Home Office why it had taken so long to publish the Chief Inspector's reports. It explained that the delays arose, in part, because of the need to comply with the parliamentary calendar and with general government management of when information is released. The Home Office has now agreed to publish reports within eight weeks of receipt.[20] The former Chief Inspector of Borders and Immigration considered that eight weeks was a reasonable period, but noted it was longer than the four weeks it previously took for his reports to be published.[21]

12. In February 2015, the former HM Chief Inspector of Probation, Paul McDowell, resigned after only taking up post in February 2014.[22] He resigned after Sodexo Justice Services, where his wife held the position of Deputy Managing Director and then, recently, Managing Director, won six out of the 21 contracts for the Community Rehabilitation Companies, the providers of adult probation services since June 2014. Sodexo had won these contracts in partnership with Nacro where Mr McDowell had previously been Chief Executive Officer.[23] According to the Ministry, Mr McDowell had been selected for interview in August 2013 and had been completely transparent with it from the start about his relationship with Nacro and his wife's position at a company that would be interested in justice business.[24]

13. We asked why the Ministry had proceeded with Mr McDowell's appointment, given that it had already decided at this point to put the contracts for the Community Rehabilitation Companies out to tender, and that it was always foreseeable that Sodexo was likely to win a substantial number of these.[25] According to the Ministry, the conflict of interest had emerged over 12 months, and there was uncertainty for much of this period as to what would happen with regard to the competition for the contracts and the position of Mr McDowell's wife at Sodexo. The Ministry argued that both these things could have gone in either direction, which would have resulted in no conflict arising.[26] The competition for the contracts was lengthy and, at the time Mr McDowell was interviewed and then appointed, the Ministry had not yet reached the stage of identifying which of those firms which had expressed an interest in the contracts had qualified to submit a bid. The Ministry therefore argued that it did not know at that point whether Sodexo would qualify, whether it would then be successful as a preferred bidder, or how many contracts it might then go on to win. His wife's role in any Sodexo bid was also not clear at that time.[27]

14. On being informed of the potential conflict of interest, the Ministry told us that it had obtained legal advice on how the appointment process for Chief Inspector should proceed when the wife of one of the applicants worked for a company that might conceivably bid for work which would be subject to inspection.[28] The advice suggested that it was very important that the Ministry's actions with regard to the appointment of the Chief Inspector avoided any suggestion that a bid from Sodexo for the Community Rehabilitation Companies contracts was likely to be successful.[29] The Ministry concluded that it would have been improper to exclude Mr McDowell on the basis that his wife's company might conceivably qualify to submit a bid, and then might go on to win some work. As the competition for the contracts progressed and Sodexo was identified as one of the preferred bidders, the Ministry agreed arrangements with HM Chief Inspector of Probation whereby, if Sodexo did win some work, he would exclude himself from any inspection of that work. When it became clear that Sodexo had won a significant number of contracts and that his wife had been promoted, it became clear that these arrangements would not be sufficient to address such a significant conflict of interest, and Mr McDowell resigned.[30]

15. We asked the Ministry why the Justice Select Committee had not been informed of the potential conflict of interest at Mr McDowell's pre-appointment hearing. According to the Ministry, at the time of this hearing, the protocol governing such hearings had not required it to supply such information. The Ministry told us it had subsequently informed the Justice Select Committee when it became apparent that, because of the scale of business won by Sodexo, the arrangements for handling the conflicts of interest would not be sustainable.[31] According to the Ministry, the protocol for pre-appointment hearings has since been changed to require departments to reveal conflicts of interest at these hearings, but it had abided by the regime it had in place at the time. It did not consider that there was anything wrong in the process that it had followed. It considered that the changes to the protocol would be helpful in ensuring that Parliament was notified earlier of potential conflicts.[32]

1 C&AG's Report, Inspection: A comparative study, Session 2014-15, HC 1030, 13 February 2015 Back

2 Q 38, C&AG's Report para 3.2 Back

3 C&AG's Report para 4 and Figure 1 Back

4 Q 1; C&AG's Report, para 15 Back

5 Qq 3, 30, 31, 43, 57, 69; C&AG's report, para 3.3 and Figure 13 Back

6 Qq 4, 32, 36, 39, 42, 50, 51, 106 Back

7 Qq 32, 35, 46, 51, 52 Back

8 C&AG's report, Figures 1 and 13 Back

9 Qq 57, 58, 60, 64, 66-69, 104 Back

10 Qq 58 Back

11 Q33, 34, 43, 56, 60, 69 Back

12 Qq 1, 46; C&AG's Report, para 3.7 Back