10 - Holding Private Prisons To Account: What Role For Controllers As ‘The Eyes and Ears of the State’?

Summary

Introduction

The role of the Controller is critical to the effective monitoring of [privately managed prison] contracts. They need to have … the skills to understand and monitor the complex contractual relationship between private contractors and the Commissioner for Correctional Services. Their relationship with the senior managers in a contracted-out prison is of fundamental importance. (NAO, 2003: 55)

As has been referenced more than once in this volume, the UK operates the most marketised prison system in Europe. This chapter focuses on a specific relationship – that of the Controller and the Director – in order to examine how accountability is practised within this highly marketised system. There are currently 14 contracted-out prisons in England and Wales, with plans for more in the pipeline. In each, there is a Crown servant – a Controller – permanently based onsite. The Controller role was established in the late 1980s to mitigate concerns around diminishing state accountability for punishment in the face of prison privatisation. The 1991 Criminal Justice Act (CJA 1991) formalised the role, making Controllers responsible for reviewing the running of contracted-out prisons and investigating complaints against prison custody officers, reporting directly to the Secretary of State (SoS). Padfield (2018) describes Controllers as the ‘eyes and ears of the State’. Despite Controllers’ legal and political importance and their apparent centrality in holding private prison providers to account, there is little existing research about the role or its effectiveness (Padfield, 2018). Observers from the outside view the role as unclear, ideologically constrained and misunderstood (Le Vay, 2018). Further, the Controller role in England and Wales is unique. While there are similar ‘monitor’ roles for private prisons across other jurisdictions, for example in the US and Australia, they are not legally and/or organisationally conceived in the same way as Controllers.

Controllers in England and Wales are responsible for overseeing the operational delivery of the contract by providers. This is achieved by monitoring various prison performance metrics, such as levels of selfharm as well as provider compliance with contract delivery indicators and prison service instructions. Controllers can apply financial remedies against the contract in the event of noncompliance or poor performance, as specified in each contract. Together with their Senior Leaders, Controllers can invoke a rectification notice (performance improvement plan) that, if not achieved, may culminate in contract termination.