5Oversight of the prison system
169.A key part of the governance of prisons is the oversight regime in place to inspect, investigate and monitor what goes on. There are three main oversight organisations involved in prisons: HM Inspectorate of Prisons (HMIP), Independent Monitoring Boards (IMBs) and the Prison and Probation Ombudsman. Both HMIP and the IMBs are members of the National Preventative Mechanism, which was established in March 2009 after the UK ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) in December 2003.
170.The 2016 White Paper envisaged a number of changes to the oversight, not all of which have come to pass:311
- strengthen the statutory remit of HMIP to take into account whether prisons are achieving their purpose, as well as consideration as to whether the leadership of a prison is contributing to the achievement of the outcomes it inspects;
- strengthen the governance arrangements and accountability for IMBs to support them in providing high quality scrutiny; and
- consideration of the need to put the PPO on a statutory footing to enhance the organisation’s independence and credibility.
HM Inspectorate of Prisons
171.HM Inspectorate of Prisons (HMIP), led by the Chief Inspector, is an independent inspectorate which reports on conditions for and treatment of those in prison. HMIP undertakes regular inspections of all establishments in the prison estate and makes recommendations to the Ministry and HMPPS to support improvement. However, its recommendations do not have to be accepted and it has no statutory powers to compel changes to be made. The Ministry introduced a new operational process where, in urgent and severe situations the Chief Inspector can alert the Minister directly about poorly performing prisons. The Ministry must respond within 28 days.312 At the time of writing, this ‘Urgent Notification’ (UN) process has been triggered six times.313
Implementation of HMIP recommendations
172.A number of witnesses raised concerns about the effectiveness of the oversight regime, particularly HMPPS’s poor response to HMIP recommendations. Peter Clarke, said that 2018–19 was the third year running that fewer recommendations were achieved than not achieved.314 He said that “When you look at the five prisons [now six] that have so far been subjected to the urgent notification process, one of the common factors is an utterly appalling response to recommendations in the past. How that was allowed to happen for so long is still something of a mystery to me, but I hope that in the future transparency and accountability is seen as a strength, not a weakness, on the part of the Prison Service.”315 He felt there needed to be better support and intervention from senior leadership to demand a better, more positive response from local establishments and agreed that responsibility for that sat with HMPPS and the Ministry.316
Figure 7: Percentage of HMIP recommendations achieved in 2018–19
Source: HM Chief Inspector of Prisons for England and Wales, Annual Report 2018–19, HC 2469, July 2019, page 8
173.Jo Farrar, Chief Executive of HMPPS, accepted that there was a need for clarity about what governors and prison group directors are responsible for and where accountability lies and said that HMPPS was putting in place processes to actively monitor inspection outcomes and recommendations.317 There is already a unit in HMPPS dedicated to supporting the implementation of HMIP recommendations.318 Phil Copple, Director General of Prisons, emphasised that the failure to achieve recommendations was not because prisons were ignoring them or not working to achieve them. He said that “the assessment of recommendations not being achieved is not a reflection of activity and whether there has been an effort. It is actually a reflection of whether the outcomes that are desired are being achieved. The reality… has been that often management teams and their staff are working hard to get better outcomes, but they have not always been successful in recent years because of the scale of challenge.”319 Prison governors also emphasised the challenges of trying to address high volumes of recommendations when they might have the capacity to make a only few changes at any one time.320
174.We previously expressed concern about the slow progress made by the Prison Service in implementing HMIP recommendations when we looked at HMIP’s critical report on HMP Liverpool in 2018.321 Partly in response to our recommendation that HMIP should be given additional resources to follow-up on recommendations, the Government agreed that HMIP should be able to undertake Independent Reviews of Progress (IRPs).322 IRPs differ from inspections and instead follow up on a selection of key concerns and recommendations from inspection reports and make judgements about the extent of progress made. HMIP has funding for about 15–20 per year.323 The Chief Inspector was broadly positive about the introduction of IRPs, describing them as “new levers” he could use.324 He said that “early indications are that they [IRPs] are being taken seriously” and that they seem “to have brought forward a far more focused response than perhaps we have been used to in the past.”325 The figure below shows the progress made in implementing recommendations to date.
Figure 8: Results of HMIP Independent Reviews of Progress to date
Source: Analysis of HMIP Independent Reviews of Progress
Inspector or regulator?
175.We discussed with our witnesses the merits of being an inspector over a regulator. The Centre for Social Justice, in their report Control, Order, Hope: A manifesto for prison safety and reform, recommended that “the Government should pass legislation to convert HM Inspectorate of Prisons into a legal regulator with statutory powers to inspect and require enforceable improvement in prison establishments.”326 The Care Quality Commission, which has oversight of healthcare provision in prisons does have enforcement powers. Both Peter Clarke and Dame Anne Owers, the National Chair of the IMBs agreed that it was important to safeguard the independence of HMIP as an inspectorate.327 Peter Clarke said that:
The independence of the inspectorate in the standards we set and the origin of those standards in international human rights instruments is very important. We are not looking for compliance with policy. I think that is absolutely vital. We should not become part of the management regime, which being a regulator could imply, or to some extent potentially lead to. There should be two legs. One is independent inspection and the other should be effective line management. It should be unequivocally the role of line management to look at what independent inspection is saying and insist upon it being implemented.328
176.We agree with the Chief Inspector of Prisons that it is vital that the Inspectorate retains its independence and the ability to set its own standards. However, we remain deeply concerned at the lack of progress in implementing recommendations. It is not acceptable that for three years running less than half of recommendations made by the Inspectorate have been fully achieved. It is fundamentally the responsibility of the Ministry and HMPPS to implement what is being recommended and they need to take ownership of this. We also understand that many governors, already working in challenging environments, may be overawed by the level of change required and we think they require additional support to make changes that get to the heart of what the Inspectorate is recommending. We welcome the introduction of Independent Reviews of Progress and take a close interest in the results of these. We recommend that the Ministry sets out who is accountable for implementing HMIP recommendations, the steps it is taking to drive improvement and additional support it will provide to governors to do this. Urgent action is needed, and we call on the Ministry to make a commitment that at least 50% of all recommendations will have been fully achieved by the end of 2020–21, as assessed by the Inspectorate.
Independent Monitoring Boards
177.The Prison Act 1952 requires every prison to be monitored by an independent Board appointed by the Secretary of State from members of the community in which the prison is situated.329 Each Board is a separate statutory body. To enable the Board to carry out these duties effectively, its members have right of access to every prisoner and every part of the prison and also to the prison’s records. There are currently more than 1300 IMB members who carry out over 50,000 visits to prisons every year and deal with around 30,000 individual applications from prisoners.330 However, the number of members has been falling over the past 5 years: in April 2018 there were 1,394 compared to 1,678 in April 2019. As at May 2018, there were 691 IMB vacancies.331
178.Although there have been recent changes to the governance structure of the IMBs, including the appointment of Dame Anne Owers as National Chair, the new structure has no statutory basis. The IMBs point out that therefore it is not possible for the IMBs as a whole to have a corporate existence as an independent arms’ length body, capable of employing staff and with direct responsibility for its own budget. Nor is there a formal report to Parliament. Dame Anne told us having each individual IMB as a separate statutory body did not help in terms of developing a new governance structure and that what was required was a statutory national organisation bringing together all the boards.332
179.A number of our witnesses questioned the effectiveness of the IMBs. The Prison Reform Trust said that “the excellence of some IMB annual reports throws into relief the struggles others face to rise to the same standard. Some of the country’s most important prisons, especially in remote areas, struggle to maintain a functioning IMB at all.”333 Dr Philippa Tomczak, Senior Research Fellow at fellow at the University of Nottingham Criminal Justice Research Centre, agreed, noting that ministerial responses to IMB reports are inconsistently published and are neither given due consideration nor responded to effectively.334 Serco recommended that the role of the IMBs should be redefined under the supervision of the Chief Inspector of Prisons to act as a first line of defence.335
180.Dame Anne emphasised a lack of resources as being a significant inhibiting factor to the IMBs carrying out their role effectively, particularly in relation to acting as an early warning system to highlight significant issues to the Ministry. She noted that the IMBs in England and Wales have about half the resource that their sister organisations have in Scotland.336 The current budget for the IMBs is £1.6 million.
181.The IMBs play a vital role in the oversight of the prison system and we believe they need to be reinvigorated. We echo the National Chair of the IMBs call for a statutory basis for the national governance structure. We recommend that the Ministry consider legislation to underpin the national governance structure and in particular that there should be a formal national IMB Annual Report laid before Parliament each year. It should also ensure the IMBs are able to perform their role effectively, noting the higher level of resourcing in Scotland.
The Prisons and Probation Ombudsman and the National Preventative Mechanism
182.The Prison and Probation Ombudsman (PPO) carries out independent investigations into deaths and complaints in custody.337 The UK National Preventive Mechanism (NPM) was established in March 2009 following the UK’s ratification of the United Nations Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) in December 2003. It is made up of 21 statutory bodies that monitor and inspect places of detention, including HMIP and the IMBs. The NPM was brought into existence via a written ministerial statement to Parliament designating the various bodies that already had the relevant powers to form it, but does not have a clear legislative basis.338
183.The NPM itself has called for a proper statutory basis to support its role.339 More recently, in its conclusions from the periodic review of the UK’s efforts to meet the requirements of the UN Convention against Torture, the Committee against Torture stated that the Government should “should clearly set out in legislation the mandate and powers of the secretariat and members of the National Preventive Mechanism and guarantee their operational independence.”340
184.The 2016 White Paper consider putting the PPO on a statutory footing and the PPO, Sue McAllister, told us that this remains an essential goal for her.341 We have previously called for both the PPO and the NPM to be put on a statutory footing. The Ministry said that it would consider putting the PPO on a statutory footing if Parliamentary time became available.342 It said it would continue to explore with the NPM and other stakeholders whether there are additional practical benefits of the NPM having a statutory basis.343
185.We repeat our call that both the Prison and Probation Ombudsman and the National Preventative Mechanism should be put on a proper statutory footing. We recommend that the Ministry update us on what progress has been made in its exploration of legislative options for both organisations.
311 Ministry of Justice, Prison Safety and Reform, Cm 9350, November 2016
312 Ministry of Justice, Urgent Notification [accessed 23 September 2019]
313 The UN protocol has to date been triggered at HMP Bedford, HMP Nottingham, HMP Exeter, HMP Birmingham, HMP Bristol and HMYOI Feltham ‘A’.
318 Justice Committee, HM Inspectorate of Prisons report on HMP Liverpool, Fifth Report of Session 2017–19, HC 751, 16 February 2019, page 5
320 See Annex 1.
321 Justice Committee, HM Inspectorate of Prisons report on HMP Liverpool, Fifth Report of Session 2017–19, HC 751, 16 February 2019
322 Justice Committee, HM Inspectorate of Prisons report on HMP Liverpool: Government Response to the Committee’s Fifth Report, Fourth Special Report of Session 2017–19, HC 967, 20 April 2018
326 The Centre for Social Justice, Control, Order, Hope, A manifesto for prison safety and reform, April 2019, page 55
338 HC Deb, 31 March 2009, col 57WS [Commons written ministerial statement]
340 United Nations Committee Against Torture, Concluding observations on the sixth periodic report of the United Kingdom of Great Britain and Northern Ireland, CAT/C/GBR/CO/6, 7 June 2019, page 4
Published: 31 October 2019