PCC: My letter to HMIC

Police and Crime Commissioner Simon Foster has decided to publish, in full, his letter to HMIC following the decision to move West Midlands Police into the ‘Engage’ process. He has decided to do this following his concerns over the decision making process.

Dear HMI Williams,

I refer to my email dated 22 November 2023 (‘my email’). I also refer to your email dated 22 November 2023 (‘your email’). It is a matter of sincere regret, that I have to write to HMIC in these terms.

I would emphasise, the purpose of this letter is to simply request, that we proceed in accordance with the agreement that we reached on 22 November, as set out in my email.   

However, I am deeply concerned at your decision to resile from our agreement (‘the agreement’), as set out in my email. I do not consider that to be acceptable, for the reasons that are set out in this letter.

I draw the following matters to your attention:

1. When I summarised, during the course of our meeting on 22 November, what I understood to be HMICs procedure relating to Engage, you did not disagree with the summary I provided. Indeed, it was my understanding that you agreed with it, including the importance of the opportunity to make representations, in response to an HMIC cause for concern letter.
2. During the course of our meeting, you did not seek to correct my understanding of HMICs procedure relating to Engage and you did not draw my attention to any alternative procedure, which I assume you would have done, had you disagreed with my summary or been aware of an alternative procedure.
3. If it is now your position, that my summary of HMICs procedure was not correct, and that, in accordance with your email, there is an alternative procedure, then I can only conclude that, notwithstanding your decision to move West Midlands Police to Engage, you are doing so, without being aware of or having had regard to, HMICs relevant procedure.
4. I note your email does not identify the alternative procedure you refer to, as being clearly stated on your website. You refer to the ‘relevant section’, but do not identify the section to which you refer. It is therefore impossible to identify, what alternative procedure or ‘relevant section’ you are referring to. In any event, it is clear that you have not had sight of the alternative procedure or the ‘relevant section’, because you have been informed of these matters by the Chief Inspector of Constabulary.
5. In any event, irrespective of the position relating to the HMIC procedure, we had an agreement as set out in my email. Your email fails to address the agreement at all and as to why you now consider it to be appropriate and/or you are entitled, to resile from the agreement.

The right to make representations to a public body, before it makes a final decision, that would have significant consequences for the individual or organisation the subject of that decision, is a fundamental principle of the duty to act fairly, due process and procedural fairness.

The opportunity to make representations must be at a stage that: (a) the party affected is aware of the particular matters, that form the basis of the decision, so as to ensure the representations can be focused on the particular matters, that form the basis of the decision and (b) is before a final decision has been made, so as to ensure that the decision has not been pre-determined, irrespective of the representations that are made.

In the present circumstances, the opportunity to make representations must be in response to the causes of concern letter, that sets out the factors HMIC have taken in to account. HMIC cannot properly refer to and rely on the previous representations made by West Midlands Police, since they were not prepared in response to the particular causes of concern relied on by HMIC, in the causes of concern letter dated 23 November. On receipt of the representations, the decision maker must then conscientiously and diligently have regard to the representations, before making a final decision.

During the course of our meeting on 22 November, it was emphasised that confidentiality in connection with the HMIC procedure, including the Engage procedure was of the utmost importance. I of course acknowledged the importance of confidentiality and confirmed that this would be respected.

However, contrary to the importance you attached to confidentiality and contrary to the agreement, you have now indicated that you intend to breach that confidentiality, by publishing your decision letter on Friday 24 November. In the event that HMIC proceeds to publish its decision letter, contrary to the agreement, including in connection with confidentiality, I have to advise you that I will no longer consider myself bound by any confidentiality relating to this matter. As a consequence, I reserve the right to publish my correspondence in connection with this matter.  

HMIC and its Inspectors must act in accordance with the law and in accordance with the highest standards of administration. However, HMIC and its Inspector, have failed to act in accordance with the law, have acted in a manner that constitutes maladministration and that undermines trust and confidence in HMIC, for the reasons set out below: 

1. Deciding to resile from the agreement, reached with the local policing body;

2. Failing to act in accordance with the public law requirements of fairness;

3. Failing to be aware of and/or familiarise yourself with the relevant HMIC procedure;

4. Moving West Midlands Police to engage, without having regard to HMICs own procedure; 

5. Failing to respect the confidentiality HMIC emphasised was of the utmost importance, pending the procedure set out in the agreement.

I respectfully request that HMIC please kindly review its decision, revise it and confirm that it will act in accordance with the law and the agreement, as set out in my email. In view of the expressed intention of HMIC to publish its decision on Friday 24 November, I ask that you please kindly confirm your intention to act in accordance with the law and the agreement by 1.00pm on Thursday 23 November.

In the event that HMIC are not prepared comply with the law and the agreement, then I reserve the right to seek an appropriate remedy, whether by reference to the courts, a formal complaint or otherwise. However, I trust that will not be necessary.

I look forward to hearing from you.

Yours sincerely

Simon Foster

West Midlands Police and Crime Commissioner

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