For many years I have struggled with the concept of the Independent Monitoring Board (IMB) being actually independent.
This is an organisation which was based at the Ministry of Justice (MoJ) HQ, Petty France for many years, but now shares open plan offices in a Government Hub at Canary Wharf alongside HM Inspectorate of Prisons, Prison and Probation Ombudsman (PPO), Parole Board for England and Wales and the Lay Observers Secretariat.
The introduction of IMB’s new Governance structure, where the role of President was replaced by a Chair and an additional layer of management, has failed to persuade me otherwise.
Dame Anne Owers, formerly Chair of The Independent Police Complaints Commission (IPCC) and prior to that Chief Inspector of Prisons (2001-2010), took up the role of National Chair of the IMB in November 2017.
We appear to differ on the definition of independence. Or do we? Across a committee room in the House of Lords, she and I exchanged glances as soon as the word “independence” was mentioned. I get the impression she knows it’s not.
Does it matter that the IMB is not independent?
It unquestionably matters because an application to the IMB requires a response within a certain time frame from an “independent” voice. But as the IMB is a department of the Ministry of Justice any problems or issues highlighted cannot be dealt with in a proper manner if they are basically monitoring themselves. The phrase “marking their own homework” comes to mind.
Is this the reason why the IMB does not have any real powers?
The IMB was established by statute (Offender Management Act 2007, Section 26), unlike the National Chair or the Management Board, neither of which are statutory entities. IMB responsibilities within prisons are set out in Section 6 of the Prison Act 1952 (as amended), Prison Rules Part V 1999, and Young Offenders Institution Rules Part V 2000.
In addition, IMB responsibilities in the Immigration Detention Estate (IDE) are set out in Section 152 of the Immigration and Asylum Act 1999, the Detention Centre Rules Part IV 2001 and the Short-term Holding Facilities Rules Part 7 2018.
In Summer 2019, MoJ and IMB co-produced a 23-page document “Protocol between The Ministry of Justice as the department and the Management Board of the Independent Monitoring Boards” A copy is available via this page of the IMB website.
This is where it gets interesting.
This protocol was drawn up by the MoJ and the Management Board of the IMB, setting out the role of each body in relation to the other. Furthermore, it sets out the responsibilities of the principal individuals running, sponsoring and overseeing the IMB Secretariat.
At this point, it’s relevant to look at the IMB structure:
First, we have the National Chair: Dame Anne Owers, appointed by the Secretary of State for Justice (Ministerial appointment) and a non-statutory public appointment
Second, there is the IMB Management Board, appointed by the National Chair which sets out the overall strategy and corporate business plans for the IMB (Protocol, p. 2: 1.3)
Both work with and through a regional representative’s network also appointed by the National Chair, providing support and guidance to the IMB.
Third, we come to the IMB Secretariat, a team of MoJ civil servants providing the IMB with administrative and policy support. This team is tasked by the National Chair and Management Board
It is the National Chair, Management Board and regional representatives that have the responsibility for the operation of this protocol. Yet with all the effort in its production this protocol does not confer any legal powers or responsibilities (Protocol, p.2: 1.6).
This protocol is approved by the Permanent Secretary of the MoJ, who is Sir Richard Heaton, and the sponsoring Minister. It is signed and dated by the Permanent Secretary (i.e. Sir Richard Heaton) and the National Chair (i.e. Dame Anne Owers).
But why should the independence of the IMB, the National Chair and the Management Board be of paramount importance? (Protocol, p.4: 3.1)
Let me try to answer this succinctly.
The IMB is part of the UK’s National Preventive Mechanism (NPM), designated by the Government to meet the obligations of the United Nations Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).
To be part of the OPCAT, it is necessary to be independent (Part I, Art 1; Part II, Art 5.6; Part IV, Art 17; Part VII, Art 35).
NPMs are required to be functionally and operationally independent. Therefore, the IMB is required to be functionally and operationally independent.
IMBs are sponsored by MoJ
National Chair is a ministerial appointment
IMBs receive funding through the MoJ and the Home Office
MoJ is responsible for ensuring the use of funds meets the standards of governance, decision-making and financial management, as set out in Managing Public Money 2013 revised 2018
The head of the IMB Secretariat accounts to the Principal Accounting Officer (PAO) for the appropriate use of resources
The PAO is the Permanent Secretary of the MoJ (Sir Richard Heaton) and is responsible for ensuring that IMB meets the standards set out in Managing Public Money
MoJ has appointed a sponsorship team
The sponsorship team is drawn from the Sponsorship of Independent Bodies Team in the MoJ’s Policy, Communications and Analysis Group. Its policy responsibilities are to act as the policy interface for the IMBs and assurance responsibilities are to act as a “critical friend” to the IMBs
The Head of the IMB Secretariat is a civil servant and employee of the MoJ and has accountability for IMB finances
It appears throughout this document that the MoJ exerts operational and functional control of the IMB. If that is the case then it is not independent, cannot call itself “Independent” and questions should now be asked concerning its membership of NPM and OPCAT.
IMB is not some vanity project for Ministers to appoint people to and to dismiss people from. Neither is it an arms-length body of any central Government department to sponsor in a whimsical way for its own ends.
MoJ and HM Inspectorate Prisons Download PDF
Dated: 10 Oct 2019
Signed: Heaton 30 Sep 2019 and Clarke 14 Oct 2019
Can you see the common denominator between all these protocols?
NB. The Protocol between MoJ and HMI Prisons was promised by the Ministry to the Commons Justice Select Committee back in March 2016.