The Guardian splashed yesterday on “government plans for police privatisation”. Of course, by ‘government’ they meant ‘West Midlands Police Authority’ and by ‘privatisation’ they meant ‘outsourcing of certain functions’, but still: private policing sounds scary, right?
Well, maybe it is, and maybe it isn’t. A nice man from G4S went on the news last night to calm everyone down, although perhaps his decision to answer questions in a creepy monotone didn’t entirely reassure those worried about the takeover of public services by alien robots.
In any event, others will write far more knowledgeably than I about the politics of this proposal and its potential effects on policing and civil liberties. Perhaps I may be permitted, however, to offer a few thoughts on the practical challenges of outsourcing a service of this nature.
Many will worry about an ethic of public service being lost when police work is undertaken by the private sector. I think that Group4Bot is right when he says that existing employees transferring under TUPE will bring that ethic into the outsourced service, although it is reasonable to worry about its dilution over time.
He is, I think, on much less secure ground when he says that accountability is ensured through contractual performance measures and remedies. Or rather, he is correct, but only up to a point.
I would argue that contractual accountability is narrower than political, regulatory or management accountability. The former measures only whether the terms of the particular contract have been complied, whereas the latter are (or should be) concerned with outcomes rather than process.
This is because contracts set out a defined service for a defined price. In theory, you could write a contract where outcomes are the only measure, with the service provider free to choose the method of delivery. In practice the buyer wants to retain as much control as possible and the service provider wants to mitigate the risk of uncertain expectations, and this tends to lead both towards the inclusion of detailed specifications.
As a result, contractual accountability is only as good as the contract itself. The service provider’s obligation is to provide the service as described; if the specification is incomplete, the buyer will have no remedy for the service provider’s failure to perform the missing activities.
And because the price has been quoted on the basis of the contractual description, the rectification of errors and omissions is likely to be at the buyer’s cost. The same is true for variations that arise through changing needs and priorities.
This is perhaps no big difficulty for a straightforward service, where the scope is well understood and experts are on hand to ensure that the contract is comprehensive. Any changes that are required after contract signature will, if everyone has done their job well, be limited in nature.
The bigger and more complex the service, however, the more chance there is of errors and omissions in the initial contract. According to the OJEU Contract Notice excerpted by the Guardian, pretty much all civilian and uniform police work is covered by this tender, in just two lots. It doesn’t get much bigger or more complex than that.
That’s a lot of contract, and the task is made harder by the novelty of the transaction. Some very fine lawyers and consultants will be paid big fees to get it right, but frankly it’s an almost impossible task.
Contractual accountability is also retrospective, and purely commercial. If the service provider breaches the contract, the buyer can claim damages either on a liquidated basis (e.g. through a contractual service credit mechanism) or by bringing a claim for the breach. For some activities (say where someone’s liberty is at stake), one might prefer that governance is more focused on personal accountability and preventing mistakes in the first place.
And then there is the challenge of creating a contractual performance regime that accounts for the many things that can go wrong in police work. Some procedural errors may not become apparent for many years, and then only after further investigations and appeals with all of the expense that go with them (which in some cases will be largely incurred by stakeholders other than the police).
Even if a workable regime could be devised, would a commercial provider sign up to a contract under which they could incur substantial liabilities years after the services had been performed? Well, pretty much anything is available at a price.
Add to all of this the desire of politicians, from central government to our exciting new elected commissioners, to meddle in policing strategy and priorities. If their tabloid-pleasing / chattering-class-coddling (delete as applicable) wheezes require a contract change, the service provider gets to put in another bill.
All of which is to say, you can probably still have accountability for an outsourced service – but it will cost you. I don’t really know whether outsourcing will make the police better or worse, but I’m doubtful about whether it will turn out to be cheaper in the long run.
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The Bizzle 
Good stuff, and as someone who’s written, negotiated, administrated and been administered by outsourcing contracts, I find all this fascinating.
I fear that this part of the contract is almost irrelevant, though. The contract which will matter is that with those being policed. Everyone accepts that policing without consent is impossible. The memory will be fresh, I think, in some parts of London, even if not in Westminster. There’s an (albeit shaky) consent to the legitimacy of Parliament, and ultimately the Crown. I think that will be pretty quickly forgotten when Group 4 try to read the Riot Act.
That’s a fair point. It’s possible that front line policing – public order and actually nicking people – will be retained in house at least partly for that reason, as well as because doing otherwise might require primary legislation.
Interesting – I’d also note that in cases where an organisation outsources, you need to have staff client-side to manage that relationship, and make sure that the provider is meeting their obligations, and hold them to account if things aren’t going to plan. From my experience in local gov, often the staff responsible for contracting and managing suppliers aren’t really very experienced or comfortable doing it, particularly if it’s an add-on to their primary responsibilities. I don’t see this kind of arrangement working well with reduced numbers of admin/support staff, as there will be fewer people who know how to manage under-performing suppliers, who may well be signed up to contracts that are very expensive to end.
That’s a good point – managing a service provider is very different to managing staff or services directly. My first ever post on here was about a similar issue: https://legalbizzle.wordpress.com/2010/09/10/outsourced-crm-an-insider-view/
And of course there’s SERCO’s track record – running education in Walsall,for example.
Nice, juicy profits by SERCO, shambolic management by the council, and years later still some of the worst schools in the country
Most likely outcome? The contractors gain a contract in which HMG indemnifies them against all costs – unlawful imprisonment, riot damages, death in custody – in clauses which are not disclosed to the public, in negotiations with officials who subsequently take up non-executive directorships and paid consultancy work with interested parties.
What could possibly go wrong?
There will be at least one ‘Blue Cross’ underbid in which the contractor goes broke, after everything that can possibly go wrong, does go wrong. Including, hypothetically, the deaths of one or several ‘service users’ and at least one pro-forma ‘inquiry’ which passes all the blame onto some undertrained and overworked and unsupervised junior.
…And in which the directors (and private equity fund managers) walk away, with knighthoods and significantly enriched – without the slightest chance that any money will be recovered from them personally – while the investors, the taxpayers, and the service users are left holding irrecoverable costs and losses.
The underbids will drive existing public-sector service providers out of the ‘marketplace’ – if they are even permitted to ‘compete’ – with an irrecoverable loss of skills, a permanent loss of the service ethos, the closure of all training establishments, and – eventually – the consolidation of the sector into a cartel or a monopoly provider.
All of this will be hailed by the government of the day as a successful partnership of Private Enterprise and Public Service.
Have I missed anything? Or would you like me to elaborate upon the likely consequences of implementing an economically-viable market model for contracting out a profitable business stop-and-searching young black men in Tottenham?
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Outsourcing work done by Civil/public servants has been a disaster every time it has been tried so far.
Practically every time this has happened the public service has been taken to the cleaners in my experience of working with them.
No-one in the police has experience of managing such large contracts – so the likelihood is that the punitive measure for poor performance is not enough, while the company gets rewards for things it can easily game.
Contractual enforcement doesn’t really work in the same way as true accountability. You can always dispute the minutiae of the contract, renegotiate the terms etc. whilst true accountability doesn’t allow that.
The other thing that worries me with the current trend of outsourcing public functions is how much will get hidden from FOI.
Gove’s disappearing emails are a precursor of things to come, and the public themselves will have no insight into how these things are going.
I am absolutely certain that any staff transferred over under TUPE conditions will take their ethics with them, they are, in the main, that sort of person. What worries me is how long will they be allowed to keep those ethics? At the end of the day the successful bidder will be a business whose primary responsibility is to providing its shareholders a profit. This will inevitably some form of cost-cutting or Revenue Generation Scheme, I’m not sure which is worse. They certainly won’t be regarded by the great British public as Public Servants accountable in the same way as Police Officers. The public may not always like the way are treated by the Police but at least they know how to complain and, I believe, have a degree of confidence in the system when things go wrong e.g, Professional Standards, IPCC etc
Whether we liked it or not Police Officers were/are used to working to deadlines, some realistic, some not so. Some of our biggest security companies couldn’t even produce prisoners at Court on time, if at all. If I didn’t turn up there was all Hell to pay.
As much as I hate change (and I will readily admit that I do) I can see the need for it, but I have never agreed with change for change’s sake, nor changing too many things at once as it becomes difficult to see what has worked and what hasn’t. However, I have tried to keep my sensible head on but I cannot currently see a single advantage, except for the police accountants who will reduce their operating budgets, which will be slashed again in the future anyway. Once services are outsourced it becomes very difficult to get them back in-house again and ultimately it is the Public we serve, it has to be right for their sakes, and it has to be right first time!
I may have retired from the Job but I am still a British Tax and Council Tax Payer and I have more faith in a slightly imperfect warranted Police Officer than any private security officer that I have ever met. Surely I am not alone in this? I wish Surrey and WMP well with their endeavours but remain to be convinced that it is the best solution
Excellent blog as usual from the Bizzle and of course quite understandably, he’s coming at it from the contractual perspective. But as a lawyer in another field and (as my name implies) often at the sharp end of the consequences of police activity, my biggest fear is that the losers in this will be the public and the victims of crime. How will these ‘outsourced’ officials be any different from the current PCSO regime? Will the essentially take over those duties? I imagine that is the intention. PCSO’s act generally as a visible deterrent. Their powers are minimal, and to be honest rightly so. No doubt the devil will as always be in the detail but my immediate gut reaction is ‘bad idea’
I am more worried about conflicts of interest – according to the Guardian article, the roles performed by the private sector will include investigation of crimes and building cases. You can expect G4S’s employees not to effectively investigate or build a case against G4S or its employees, should they break the law.
Of course, public police forces have this problem too, but in the private sector, corruption will extend to protecting parent companies, shareholders, etc. The same thing happened when The Times wasn’t publishing anything about the News of the World’s phone-hacking (both papers are owned by News International), except corruptly not investigating crimes is much much worse than corruptly not reporting stories.
There is often a notion that ‘outsourcing’ = cheaper but this blog starts to lay down some very real practical difficulties on accountability and control. Nicely written LB.
The contract clauses should be made totally public but what worries me is how performance is measured, Number of arrests, number of convictions, or more likely financial value – policing for the rich?
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