ESTABLISHING AN INDEPENDENT INSPECTORATE FOR THE CROWN
OFFICE AND PROCURATOR FISCAL SERVICE
PROPOSALS FROM THE LORD ADVOCATE
September 2003
Background
1. The Lord Advocate is committed to establishing an
inspectorate for the Crown Office and Procurator Fiscal
Service by the end of 2003. This commitment followed the
publication of the report by Dr Raj Jandoo which
recommended:
"An Inspectorate of the Crown Office
and Procurator Fiscal Service should be
established headed by an independent
inspector."
2. The Lord Advocate has given detailed consideration as
to how this recommendation can be best implemented to
ensure that the work of the inspectorate will be of value
to the organisation and result in enhanced public
confidence in the Department and in the wider Criminal
Justice System.
3. This paper sets out the Lord Advocate's proposals on
how these objectives can be achieved leading to the
establishment of a dedicated, highly skilled professional
and independent inspectorate that is committed to working
with partner organisations to secure real improvements in
performance and service delivery and that can respond in an
integrated way to areas of public concern.
4. In formulating these proposals, account has been
taken of a considerable volume of research into the role
and function of inspectorates, including those operating
within the Criminal Justice System in England and Wales as
well as examination of the inspection arrangements in
partner organisations.
Role of Inspectorate
5. The inspection arrangements for the Prosecution
Service in England and Wales that are carried out by HM
Crown Prosecution Service Inspectorate (HMCPSI) were
reviewed in 2001. That review considered contextual
developments in the wider public sector, in particular the
'Better Public Services' programme which aimed to improve
the management, delivery, accountability and joined up
effectiveness of public services. The views of key
stakeholders who were affected by the HM CPSI inspection
process were also factored in.
6. The review recommended that the inspection process
for the future should focus upon:
- Risk assessment based inspection, targeted on
identified problems and key challenges for the
organisation, areas for improvement, and potential good
practice;
- Harnessing business excellence/self assessment
activity to inspection, to help identify where
inspection might usefully focus, and to promote
effective use of performance based improvement
processes; and
- Thematic studies including Criminal Justice System
wide joint inspection activity to promote whole systems
effectiveness across the Criminal Justice System.
7. These conclusions are consistent with the broader
research that has taken place on how the work of
inspectorates should relate to the responsibilities of
senior management within the department or organisation
itself. The Public Services Productivity Panel report
entitled
Role of External Review in Improving Performance
[1] recognised that an important factor in performance
in particular service areas is the quality of leadership
and corporate governance of the organisation as a whole.
Inspection should not get in the way of the ability of the
management team to lead and should not flood them with
detailed lists of recommendations at operational level. The
report further observed that the degree of external
inspection necessary depends upon the internal capacity of
an organisation to improve. An assessment of existing
standards of performance and evaluation of plans for
improvement, linked to the strategic planning cycle, will
highlight areas where external review appears necessary and
would add value, but allows organisations to build the
capacity to self-improve.
8. The responsibility of departments to develop
effective performance management systems is illustrated by
the creation of the Department for Education and Skills
Standards and Effectiveness Unit; the introduction of the
Police Performance and Assessment Framework (PPAF)
developed by the Police Standards Unit; and in the Office
of the Deputy Prime Minister by the establishment of the
Performance and Delivery Unit centrally.
9. The work of inspectorates should complement this
responsibility, allowing them to operate according to a
series of principles, including the pursuit of improvement,
taking a customer rather than a professional perspective
and focusing on outcomes, which ensure that their efforts
are well directed, proportionate and designed to add
value.
10. The importance of these principles has been
recognised in putting forward the proposals for the new
Inspectorate, drawing upon current thinking and best
practice in other regimes, with the objective of ensuring
that they properly reflect recent developments and
initiatives elsewhere in the field and are compatible with
the present structure of the organisation.
Securing Independence
11. At the time of the publication of the Jandoo report,
the Department had an internal Quality and Practice Review
Unit, which reported on the quality of professional
practice and sought to identify and promote good practice.
This unit reported internally to the permanent civil
service head of the department and its reports were not
automatically published or disseminated externally.
12. The Lord Advocate is committed to establishing a
robust inspectorate for the Department and considers that
the necessary degree of independence envisaged by Dr Jandoo
can be achieved by a series of measures, described at paras
17-25 below, which will collectively ensure that the
inspectorate will be independent in its approach to
examining the performance of the COPFS, and free of
potential influences.
Delivering Improvements
13. It is intended that the new Inspectorate should
operate in a dynamic way, focusing on specific areas of
performance and making recommendations that will result in
clear and measurable improvements in service delivery.
14. To achieve this, the Inspectorate should target
specific areas of operational performance where improvement
is required or where public concern has been expressed.
Recent introduction of modern, efficient IT systems
throughout COPFS has resulted in improved performance
management information which can be utilised by the
Inspectorate in the identification of these areas.
15. There has to be recognition that the internal
management of COPFS is responsible for performance and that
rigorous self-assessment has an important role to play in
effective performance management. Changes to the management
structure of COPFS after the publication of the Jandoo
Report, particularly the appointment of Area Procurators
Fiscal and dedicated Area Business Managers, have clarified
lines of management accountability within the organisation
and provided a framework within which such rigorous and
effective self-regulation can take place and a meaningful
process of risk analysis is undertaken.
16. The work of the Inspectorate has to reflect and
complement these developments, so that it can concentrate
on areas where its expertise will be of greatest value to
the organisation, the wider Criminal Justice System and the
communities that the Department serves. In this respect the
Inspectorate will have the capacity to undertake cross
agency thematic reviews, so that agencies can work in
partnership towards achieving common objectives, thereby
improving the overall standard of service to their
users.
Specific Proposals
17. An Independent Inspectorate should be established
for COPFS.
18. A Chief Inspector should be appointed to head the
new Inspectorate. It is intended to advertise the position
widely and that it should be open to a person with the
necessary vision, skills, commitment and independence of
mind. This would be a senior appointment for a fixed term
and would be made by the Lord Advocate on the advice of a
selection panel on which COPFS would have minority
representation.
19. The independence of the Chief Inspector should be
reinforced by placing the Inspectorate and the post and
responsibilities of the Chief Inspector on a statutory
basis. The Executive would look for an early opportunity to
bring forward legislation. This will set the Inspectorate
and in particular the office of Chief Inspector apart from
the management structure of COPFS and provide an additional
safeguard to the independence of the Inspectorate.
20. The Chief Inspector will report to and be directly
accountable to the Lord Advocate, bypassing the internal
management structure of COPFS. All of the reports of the
inspectorate will be published and the Lord Advocate will
be accountable to the Parliament for their contents. A
protocol will be developed to deal with the arrangements
for submission of draft reports to the Minister and
officials to avoid inclusion of inaccurate or inappropriate
information, whilst preserving the independence of the
inspection process.
21. In common with other inspectorates, such as HM Crown
Prosecution Service Inspectorate, an Advisory Board will be
established to guide the work of the Inspectorate and
ensure that it is planned and undertaken to the highest
possible standard. The Advisory Board will include
independent external members who should bring an
independent perspective to the work of the Inspectorate and
provide a focus for benchmarking performance. In addition,
the board will include senior members of COPFS and of the
Inspectorate. The functions of the Board would be to
provide advice on the programme of the Inspectorate and
keep the working relationship between COPFS and the
Inspectorate under review.
22. There should be an external or lay input into the
work of the Inspectorate. This will be achieved through a
panel of lay inspectors from a range of interests and
backgrounds who would be called upon by the Chief Inspector
to participate in reviews as lay inspectors. Those involved
will require to possess the requisite knowledge and
expertise to make a meaningful contribution to the
inspection process.
23. The Chief Inspector will be supported by senior
members of the Department who will be seconded to the
Inspectorate for a fixed period. This will provide a depth
of knowledge and experience to the inspection process,
thereby enhancing the authority of the organisation, both
internally and externally. Seconded staff members will be
accountable to the Chief Inspector and not to the
Department.
24. There will be separate budgetary provision and
accountable officer responsibility for the Inspectorate and
COPFS. In order to ensure that the Inspectorate can act
independently of COPFS, budgetary and accountable officer
responsibility will lie with the Finance and Central
Services Department of the Scottish Executive.
25. The Inspectorate will be based in a location outwith
Edinburgh.
Interim Arrangements
26. The Lord Advocate is committed to establishing the
inspectorate by the end of 2003. It will be placed on a
formal statutory footing at an appropriate opportunity. In
the interim, the Inspectorate will operate on a
non-statutory basis. While statutory backing will secure
the Inspectorate's status for the long term, the
Inspectorate can function in the short term without
legislation. The Lord Advocate will direct all COPFS staff
to co-operate with an Inspector and to afford access to all
papers and records. The interim period will also offer
practical experience of the operation of the Inspectorate
which will be of value when legislation is prepared.
Conclusion
27. These proposals should create a truly independent
Inspectorate of the Crown Office and Procurator Fiscal
Service that will play a key role in driving up standards
and improving delivery across the Criminal Justice
System.
[1]Role of External Review in Improving
Performance by Sir Ian Byatt and Sir Michael Lyons,
December 2001 by Sir Ian Byatt and Sir Michael Lyons, December
2001
AN INDEPENDENT INSPECTORATE FOR THE CROWN OFFICE AND
PROCURATOR FISCAL SERVICE: RESPONSE FROM THE LORD ADVOCATE
ON OUTCOME OF CONSULTATION
1. In December 2002, a Project Team headed by Mr Joe
O'Donnell, a senior civil servant, was set up to make
proposals on the establishment of an Independent
Inspectorate and implement the recommendation made in this
regard by Dr Jandoo in his report. That team carried out a
wide-ranging examination of inspection and regulation
regimes throughout Scotland and elsewhere in the United
Kingdom. It took account of the developing environment that
inspectorates are operating in, and made recommendations to
me on the best method of establishing an inspectorate for
the Crown Office and Procurator fiscal Service that would
fulfil the requirement of independence and be most
effective in driving up standards and building the
confidence of all communities in Scotland.
2. On receiving these proposals, I was clear that the
correct way to proceed was to have them circulated to key
partner organisations and to the wider public to permit
informed comment and to revise them if necessary.
Accordingly a consultation paper was prepared summarising
the key elements of the proposals. A signed copy of the
consultation letter was sent to 38 recipients including all
Chief Constables of Scottish Police Forces, all relevant
Scottish Inspectorate and Regulatory bodies, the Auditor
General for Scotland, representatives of PETAL, Victim
Support Scotland and the Commission for Racial Equality
together with other key partners in the criminal justice
system. In addition, a letter was sent to all local
faculties, and a copy of the consultation document was
placed on the departmental website.
3. The consultation period ended on 15 December 2003 and
I am now publishing a summary of the comments received as a
result of the exercise, together with my response to
them.
4. The respondents welcomed the establishment of an
Independent Inspectorate and there was general support for
our specific proposals. In particular Dr Jandoo stated that
they met the requirements of the recommendation in his
report and will enhance the public confidence in Scotland's
criminal justice system.
5. Many respondents expressed positive support for the
proposal to establish an advisory board with external
members to guide the work of the inspectorate and for the
capacity of the inspectorate to carry out joint thematic
reviews to drive up performance across multi agency areas
of responsibility. Respondents also welcomed the
opportunity to work in partnership with the inspectorate to
achieve common objectives and improve the standard of
service. There was recognition that the management
structure of the service has been reorganized and that
internal performance management structures have to play a
significant role in delivering improvements. Only one
respondent questioned whether our proposals went far enough
in securing a truly independent inspectorate.
6. Some respondents highlighted specific issues which
have been summarised below. I have given careful
consideration to the points raised and welcome the
opportunity to indicate my response to them.
- The issue of consistency of decision making across
the various offices within the service was raised. I
recognise the importance of consistent practice in case
handling across the service and will ensure that
appropriate mechanisms are in place to highlight and
resolve inappropriate or inconsistent use of measures
across areas. Consistency does not equate to unthinking
uniformity and it will always be appropriate to take
account of local needs and issues. As was indicated in
the consultation paper, the new performance management
structure has to play a significant role in ensuring a
degree of consistency of decision making in relation to
such matters as Fiscal Fines. The overall effectiveness
of this structure could however be a matter for the
Inspectorate.
- There was a significant measure
of support for the creation of an advisory board but
some respondents queried whether internal members of
the board from within COPFS would be able to influence
the deliberations of the board. I have given careful
consideration to this point and wish to emphasise that
my intention is to appoint members from a diverse
background to add an external perspective and to have
stakeholder representation. All members will have the
objective of guiding the work of the Inspectorate in
the most productive way and there would certainly not
be a majority of Crown Office representatives on the
board.
- While there was in general an
acceptance of the principle that some members of the
inspectorate would be seconded from the department some
respondents stated that the inspectorate itself and
especially the eventual appointment of the Chief
Inspector, should be not only independent, but should
be perceived to be independent. I wholeheartedly accept
the importance of transparency and have indicated that
the selection panel for the Chief Inspector post will
have minority Crown Office representation to
demonstrate my commitment to impartiality and to ensure
that the candidate who is best qualified overall is
selected.
- The hope was expressed that the work of the
inspectorate and any criticisms that it may make should
not focus on individual members of the service and
thereby add to existing pressures of work. I am clear
that the objective of the Inspectorate is to improve
quality of service delivery and highlight good
practice. Although any shortcomings will inevitably be
identified by the inspectorate, this will be from the
point of view of dealing with systemic failure as
opposed to apportionment of individual blame.
- There was considerable support for the concept of
cross agency thematic reviews and some respondents
referred to the developing environment within which the
various criminal justice agencies operate, including
the creation of the National Criminal Justice Board. I
fully accept the importance of having a joined up
approach and re-state that this is one of the key
elements in our proposals and believe that the
undertaking of joint thematic reviews will achieve this
objective. I recognise the important role that the
National Criminal Justice Board will play in
identifying issues within the overall system which may
require to be addressed by the Inspectorate.
- Some respondents expressed the
hope that the work of the inspectorate would facilitate
improvements in communications between the department
and specialist reporting agencies and improve quality
of decision making and service delivery. I consider
that one of the main objectives of the creation of the
inspectorate is to improve the overall quality of work
delivered by the service and am confident that our
proposals will achieve this. I fully accept the
importance of effective communication between local
offices and all reporting agencies and expect that
issues of this type will be fully explored in the
thematic reviews that the inspectorate will carry
out.
- One respondent was concerned that
Ministers might have the power to vet reports produced
by the Inspectorate in advance and thereby compromise
their independence. I indicated in our proposals that a
protocol will be developed to deal with arrangements
for a draft report to be submitted. I considered it
important to ensure that the published reports did not
contain factual inaccuracies or information that would
breach established principles of confidentiality and
the protocol will necessarily deal with such issues.
However, the overall purpose of the protocol will be to
safeguard the independence of the inspectorate and to
define arrangements which will prevent the possibility
of interference with the conclusions reached by the
Chief Inspector.
7. A list of respondents to the consultation exercise,
all of whom were content that their responses be made
public, is attached. Copies of these original responses can
be obtained by writing to Inspectorate of Prosecution in
Scotland, Fifth Floor, Corunna House, 29 Cadogan Street,
Glasgow, G2 7AB.
8. In conclusion I am pleased at the measure of support
that our proposals have received as a result of this
consultation exercise. The suggestions are constructive and
I have taken appropriate account of them. The creation of
an Independent Inspectorate is a radical but welcome
development as it increases our accountability to
stakeholders, partner organisations and the general public
and I am confident that it will be an important driver in
delivering improvements across the criminal justice
sector.
RESPONDENTS TO CONSULTATION ON INDEPENDENT
INSPECTORATE FOR THE CROWN OFFICE AND PROCURATOR FISCAL
SERVICE
Dr Raj Jandoo
Sheriff Principal John C McInnes
The Law Society of Scotland
Procurators Fiscal Society
Public & Commercial Services Union
Scottish Court Service
Scottish Legal Aid Board
Scottish Criminal Cases Review Commission
Care Commission
Scottish Environment Protection Agency (SEPA)
Victim Support Scotland
Sheriff Frank R Crowe
Association of Chief Police Officers in Scotland
(ACPOS)
Criminal Justice Inspection Northern Ireland
Magistrates Court Services Inspectorate (MCSI)
HM Fire Service Inspectorate for Scotland
HM Inspectorate of Constabulary
Northern Constabulary
Faculty of Advocates