Prison Communications

Lord Grayling Excerpts

Tuesday 11th November 2014 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Chris Grayling)]

With permission, Mr Speaker, I want to inform the House that telephone calls between prisoners and their constituency Members of Parliament, or MPs’ offices, may have been recorded, and in some cases listened to, by prison staff. The issue stretches back to 2006 and primarily relates to the period prior to autumn 2012, when this Government made changes to tighten up the system. This is a serious matter, and I would like to start by apologising to the House on behalf of my Department for any interception of communications between a prisoner and their constituency MP. I want to set out the steps I am taking to address it, which will include an independent investigation by the chief inspector of prisons, Nick Hardwick. The issue was first brought to my attention on 5 November, and having asked for urgent work to establish the basic facts, I have come to the House to make a statement at the earliest opportunity.

I will first explain how telephone calls in prisons are managed. Prisoners’ ability to phone and talk to family members, friends and others is an important part of the Prison Service’s work to help prisoners in maintaining family and other ties that support their rehabilitation. However, in facilitating such phone calls it is important to ensure that safeguards are in place to make sure that prisoners do not abuse the system—for example, by contacting victims or by continuing their criminality while still in prison. All public sector prisons and youth offender institutions, as well as the majority of private sector prisons in England and Wales, have operated the same PIN—personal identification number—phone system for the past 10 years. Prisoners are issued with a PIN to activate the system and informed that all calls are, by default, recorded and may be listened to by prison staff. This is set out in a communications compact, introduced in 2008, which prisoners are required to read and sign. The compact is clear that the prisoner must advise prison staff of their legal and other confidential numbers to stop these numbers being recorded. That is because the PIN phone system requires an action from staff to override the default setting that all calls will be recorded. Prior to 2012, provided that prisoners did not present a specific risk, they could contact any telephone number that had not been proactively barred from their PIN account. For example, the telephone number of their victim would most likely have been barred. In 2012, this Government implemented greater control over those whom prisoners were allowed to contact, limiting them to specifically identified phone numbers. As part of that process, prisoners supply the legal and otherwise confidential telephone numbers that they wish to contact. Prison staff are then required to carry out checks that the number is indeed a genuine number that should not be recorded or monitored, so that confidentiality is respected but not abused.

Let me turn in more detail to the issues that were brought to my attention late last week, which will rightly concern this House. The prison rules and policy are clear that communication between prisoners and hon. Members must be treated as confidential where the prisoner is a constituent of theirs. As a result of an inquiry—an unrelated inquiry—from a serving prisoner, and following a rapid internal investigation, the National Offender Management Service has identified instances since 2006, when detailed audit records start, where calls between prisoners and MPs’ constituency and parliamentary offices have been set to record. In a small number of cases, those calls have been recorded and listened to by prison staff.

From the initial investigation, NOMS has identified 32 current Members of this House whose calls, or those of their offices, appear to have been both recorded and listened to. For 18 of these MPs, it appears that the prisoner did not list the number as confidential and therefore the action was not taken to prevent recording. As these calls were not marked as confidential, some would also have been subject to the random listening that is completed on all non-confidential calls.

In a further 15 cases, Members appear to have been identified correctly on the system as MPs, but due to a potential failure in the administrative process the required action was not taken by prison staff, so the calls were recorded and appear to have been listened to. One Member falls under both categories.

We are not yet in a position to confirm the details surrounding each occurrence, and that requires further investigation. I have, however, been able to establish that the most recent call recorded was to the constituency office of my colleague, the right hon. Member for Bermondsey and Old Southwark (Simon Hughes). The prisoner in question spoke to a member of the constituency office, rather than to the right hon. Gentleman, to inquire about the progress of some constituency correspondence.

In each case, it is important to understand whether the prisoners were speaking to an MP directly rather than to their office, and whether that MP was their constituency MP. Those are relevant questions if we are to get to the bottom of what has gone on.

I must say that I have seen nothing to suggest that there has been an intentional strategy of the Prison Service listening in to calls between prisoners and individual Members of Parliament. Indeed, given that the calls of one of my predecessors—the right hon. Member for Blackburn (Mr Straw)—were, as I told him earlier, being recorded and listened to at a time when he was the Secretary of State, the issue appears to have arisen by accident rather than by design.

That is not, however, to detract from the fact that confidential phone calls between Members of this House and their constituents in prison may have been recorded and monitored. That is unacceptable and I want to ensure that we have taken every reasonable step to protect the confidentiality of communications between prisoners and their constituency MPs.

It has also been brought to my attention that, in a similar way, there have been a small number of cases over the past few years where a call between a prisoner and a lawyer was accidentally recorded. Although those cases have been dealt with individually with the prisoner at the time, I want to be confident that the safeguards for all confidential calls are satisfactory.

I have therefore asked the chief inspector of prisons, Nick Hardwick, to conduct an independent investigation, which will, first, assure me by the end of this month that the necessary safeguards are now in place, and secondly, by early 2015, report in full on the facts and make further recommendations. I will make a further statement to the House once Nick Hardwick has reported to me.

I want to close by reassuring the House that significant improvements were made to the system in autumn 2012, and that since then we have identified only one instance where an individual clearly identified on the system as an MP has had their or their office’s calls recorded and listened to. But there is more that can be done. On the PIN phone system, the main switchboard number for the Houses of Parliament is listed as confidential. As an interim measure, pending the outcome of Nick Hardwick’s review, I have asked that all MPs’ office numbers—as listed on the parliamentary website—and constituency office telephone numbers be marked as confidential. All phone calls from prisoners to those numbers cannot for now be recorded or monitored. The Under-Secretary of State for Justice, my hon. Friend the Member for South West Bedfordshire (Andrew Selous), who has responsibility for prisons, will write to all Members asking them to provide any further numbers that should be registered in that way.

I will also write individually to all Members where we have particular concerns that their conversations may have been monitored, and I intend to place a list of those MPs in the Library of the House. Before doing so, I want to inform those affected and give them an opportunity to agree. I hope to conclude that by the end of this week.

The relationship that exists between MPs and our constituents is crucial and must be protected. That is why I have acted at pace to bring these issues to the House’s attention and have taken immediate steps to ensure our confidentiality is respected. I commend this statement to the House.

[Sadiq Khan (Tooting) (Lab)]

I thank the Justice Secretary for advance sight of his statement, the contents of which are truly shocking. What he has outlined is a very serious breach of confidentiality involving MPs and their constituents. I welcome the speed of his response and today’s statement after first hearing about this issue only six days ago. I also thank him for his phone call to me this morning.

The ability of a Member of Parliament to maintain confidential channels of communication with his or her constituents is fundamental to their role as a Member of this House. Interception of MPs’ telephone calls has been governed by the Wilson doctrine since the 1960s, which, as the Justice Secretary has said, is made clear in prison rules and policy, so any breaches of confidentiality must be taken very seriously indeed.

Many of us will deal on a regular basis with constituents in prison—I remind the House that many of them have not been found guilty of any crime—as part of our duties as good constituency MPs. Often, our staff speak to prisoners on our behalf, as they do in other casework. I am sure that I am not alone in being shocked in hearing today’s news that some of those conversations have been listened in to and recorded.

That is why it is important, as the Justice Secretary has said, that we get to the bottom of this as quickly as possible, find out the extent to which it was taking place, and put in place a system that prevents a repeat in the future. I welcome the inquiry to be led by the chief inspector of prisons, Nick Hardwick.

I have a number of questions for the Justice Secretary. If he cannot answer some of them, I hope that either he or the chief inspector of prisons will respond in the near future.

Does this issue in any way contravene the Wilson doctrine on intercepting the telephone calls of MPs? In how many prisons has it taken place? The Justice Secretary referred to the PIN phone system in public sector prisons. What about private prisons? Will Nick Hardwick’s inquiry look into private prisons as well?

Is there any evidence that any of the information gained from the calls was fed up to senior officials in NOMS or passed on to any third parties? Can the Justice Secretary confirm that all remaining recordings and any transcripts have been destroyed, and that those that have not will be destroyed?

The Justice Secretary mentioned 32 current MPs. What about ex-Members of Parliament? Have they been informed that their conversations may well have been recorded and listened in to?

The Justice Secretary also mentioned the one incidence of a phone call between a prisoner and their solicitor being listened in to. As part of the inquiry, will Nick Hardwick look into whether other communications between prisoners and their lawyers may have been listened in to and recorded?

Is there any evidence that there has been any interference with postal correspondence between MPs and constituents or between prisoners and their legal representatives—the so-called rule 39A correspondence? The Justice Secretary rightly referred to the improvement of the audit trail post-2006. Can anything be done with regard to issues before 2006?

In conclusion, the Justice Secretary rightly reminded us why it is important for prisoners to be able to talk to family members, friends and others. He also rightly reminded us that, in facilitating prisoner phone calls, it is important that safeguards are in place, to ensure that prisoners do not abuse the system by, for example, contacting victims or continuing their involvement in criminality while still in prison. Of course, Members on both sides of the House agree with that. Today’s revelations are a worrying development and it is really important that we get to the bottom of what the Justice Secretary has revealed.

[Chris Grayling]

I thank the shadow Secretary of State for the measured way in which he has responded to the issue. Let me answer his questions in turn. The Wilson doctrine applies to intercept activity, so the routine monitoring of calls of this kind, while not within the prison rules, is not covered by the Wilson doctrine.

I cannot give the right hon. Gentleman an answer on the number of prisons. We have been able to identify the number of calls and MPs, but that has been done through telephone records, so I do not yet have information on the origins of the calls and the number of prisons. I expect we will see more information about that as the inquiry progresses.

I have as yet seen no evidence that information was passed on to anyone else. I do not believe that this was part of a concerted attempt to monitor; it was simply part of the routine checking of the process to make sure that nothing untoward was going on. Clearly, however, that is something I will ask Nick Hardwick to confirm.

I believe that all recordings have been destroyed—they are kept for only a limited period—but I assure the right hon. Gentleman that if any have survived, which I do not believe to be the case, they certainly will be destroyed.

Work relating to ex-Members of Parliament has not been done, but I assure the right hon. Gentleman that we will ask that question and notify them. Until now, it has been a question of cross-referencing current Members of Parliament in order to identify issues.

On solicitors, I have asked Nick Hardwick to look at the full range of confidential calls. The reality is that occasionally mistakes will be made in a large organisation dealing with such issues. The total number of calls handled by the Prison Service over this period is about 16 million, so I will be up front with the House and say that occasionally mistakes will be made. I want Nick Hardwick to make sure that we have every possible safeguard in place to make sure that this cannot happen as a matter of routine.

The right hon. Gentleman asked about rule 39 mail. I do not have any evidence that such mail has been inappropriately intercepted. We keep rule 39 under regular surveillance and review. Although it is of paramount importance that it remains a conduit for prisoners to receive confidential material from their solicitors and to send such material to them, he will know that there have equally been suggestions over the years that rule 39 has been abused. I try to make sure that we continue to monitor it properly and respect its confidentiality, but governors are instructed to look at it if they have reason to believe—they must have such a reason—that rule 39 is being misused.

On the audit trail before 2006, we have looked at this practice from 2006. It may predate 2006, but the work that has been done with BT simply covered the period from 2006 onwards.

I share the right hon. Gentleman’s concern: in all aspects of what we do, it should be possible to have confidential conversations with constituents. Something has clearly gone wrong, and I need to rectify it. It goes back over many years, but it needs to be rectified now, and I assure the House that it will be.

[Crispin Blunt (Reigate) (Con)]

I congratulate the Secretary of State on his statement and, of course, the Department on putting him in a position to make the statement so speedily after the information was made available to him. However, the key point is that no actions appear to have followed cases of monitoring, and that there was no strategy in the Department of overseeing MPs’ conversations. In reality, this is not perhaps a hugely important issue, provided it can be confirmed that no action was taken as a result of calls being monitored in the normal way. Such calls will not be monitored under the new system, and we should all be grateful to him for the extra casework that we will get.

[Chris Grayling]

My hon. Friend is right. I see no evidence that this practice was part of an attempt to gain and pass on pieces of information. It is a very large and complicated system, with a very large number of people. My first impression is that this practice was the result of a series of errors, but that does not make it acceptable. I will of course ask Nick Hardwick to confirm that it was the result of a series of errors, and to make sure that it does not happen again.

[Mr Jack Straw (Blackburn) (Lab)]

The Secretary of State was generous enough to offer an apology to the House for what happened between 2006 and 2012. That was very generous, not least because he was not in his current office at any time in that period. I was in his office for three of those six years, and I feel that it is appropriate for me to offer an apology for what happened on my watch.

On that matter, I have checked—I am grateful to the Secretary of State for giving me prior information—and five or six calls were made to my office while I was Justice Secretary. I think that I had an alibi at all material times: I was not on the end of the call because I was in the House or in the Ministry of Justice. It looks as though all the calls were made to my staff, not to me, and that the prisoner did not identify themselves as a serving prisoner. That underlines the fact that the practice is almost certainly due to inadvertence.

My final point is that the right hon. Gentleman and the House will recall that in 2008, following the disclosure in The Sunday Times that a conversation between my right hon. Friend the Member for Tooting (Sadiq Khan) and a prisoner had been recorded in a prison, I set up an inquiry under Sir Christopher Rose, a former very senior Court of Appeal judge. He found that inadvertence not conspiracy had led to that happening. May I suggest that Sir Christopher Rose’s report is drawn to Nick Hardwick’s attention for any lessons that could be followed through on?

[Chris Grayling]

The right hon. Gentleman is enormously gracious to offer a personal apology, and I thank him for that.

The right hon. Gentleman is right. In relation to his own situation, he highlighted the fact that the practice concerned a discussion between a prisoner and a member of his staff. I venture to suspect that we will find over the course of the investigation that a large proportion of the calls were with members of staff rather than with Members of Parliament. None the less, it is important that such calls can be made without the sense that someone is listening in.

With regard to the right hon. Gentleman’s comments on the earlier report, I have had a quick read of it since I spoke to him on the phone. I will, indeed, pass it on to Nick Hardwick. It is important that we ensure that any lessons to be learned are learned.

[Dr Julian Huppert (Cambridge) (LD)]

Confidentiality is clearly very important. I pay tribute to the Secretary of State for coming to the House so promptly. That is a model for others to follow. May I press the Secretary of State on two specific points? He said in his statement that, since 2012, there has been a case “where an individual clearly identified on the system as an MP has had their...calls recorded and listened to.” I would be grateful if he explained how that happened, and why it did not trigger any sort of alert. He also said that there have been “a small number” of cases in which conversations with lawyers had been recorded. How big is that small number?

[Chris Grayling]

I am only aware of a handful of cases over the years. When such cases arise, they are dealt with individually, with an apology and an explanation given to the prisoner involved. In terms of numbers, I am not aware that that is comparable to the issue we are dealing with today. It is however a concern, because such cases do arise.

The truth is that we all make mistakes. I do not yet have a detailed answer on the case of the Member of Parliament, but I suspect that it was a simple mistake by a member of staff who did not realise that they should not do what they did. However, we need to understand why and how this happened in both those circumstances, and we need to make sure that appropriate guidelines or measures are in place to ensure that they do not happen again.

[Mr David Winnick (Walsall North) (Lab)]

The statement is headed, “Prison Communications”. Is the Secretary of State aware that there is a good deal of concern—in my view, justified concern—that the intelligence services are intercepting communications between lawyers and their clients. We know that there is an acute threat of terrorism and we have no illusions about that, but does he accept that such communications between lawyers and their clients should remain confidential and that what has happened should not occur again?

[Chris Grayling]

Rule 39 mail is very clearly covered by privilege, and it should remain so. As I have indicated, we have a remit to look at rule 39 mail only if we have good reason to believe that it is being misused. That matter is at the discretion of prison governors, but a concerted series of measures to intercept communications relating to an individual would almost certainly be subject to a ministerial warrant. As the hon. Gentleman knows, Security Service activity is subject to ministerial warrants, and rightly so.

[David Rutley (Macclesfield) (Con)]

I welcome my right hon. Friend’s characteristically robust response. Will he confirm that breaches also took place under the previous Government, and that they were widespread? Does he agree that that underlines how important it is for both sides of the House to get behind the steps he is taking to address the issue?

[Chris Grayling]

My hon. Friend is absolutely right. That is why I very much welcome the tone taken by the current shadow Secretary of State and, indeed, by the former Lord Chancellor and Secretary of State for Justice, the right hon. Member for Blackburn (Mr Straw). This practice has affected both Governments, and it may well predate 2006 as well. The truth is that millions of calls are made in our prison system all the time, and mistakes will happen, but we have to learn from them when they do.

[Kevin Brennan (Cardiff West) (Lab)]

The Secretary of State said that Members were correctly identified on the system in 15 cases, but the calls were still recorded and appear to have been listened to. Is it possible that a criminal offence was committed by someone listening to those calls in the full knowledge that they were from MPs, and will that form part of the inquiry?

[Chris Grayling]

I do not believe that this is a criminal matter, because the guidelines are set out in prison rules. I would certainly take a pretty dim view if any member of staff had intentionally broken the rules to listen in to a set of calls involving a Member of Parliament. We will obviously wait to see what the investigation throws up, but I suspect that this is a case of error rather than intent. I am setting up the investigation to confirm that.

[Henry Smith (Crawley) (Con)]

I am grateful to my right hon. Friend for his statement. He was right to bring this matter to the House’s attention expeditiously. Does he have information yet about the division between prisoners on remand whose calls were listened to and post-conviction prisoners, or will we have to wait for the inquiry for that?

[Chris Grayling]

I do not have that detail of information yet. The right hon. Member for Tooting (Sadiq Khan) was absolutely right to point out that many of those may well not have been convicted of any crime, but have been simply awaiting trial. It is particularly important to ensure that such people are protected, but that is a matter for Nick Hardwick’s investigation.

[Jim Shannon (Strangford) (DUP)]

I thank the Secretary of State for his statement, and for underlining the need for confidentiality in the relationship between Members of Parliament and their constituents. As he will know, policing and justice are devolved matters today, but that was not the case back in 2006. What discussions has he had with the Minister responsible in Northern Ireland, David Ford, to ensure that the confidentiality of the relationship between Members of Parliament and constituents is maintained in Northern Ireland?

[Chris Grayling]

I have not yet done so because the matter arose very recently, but the hon. Gentleman makes a good point and I will follow it up.

[Tessa Munt (Wells) (LD)]

I thank the Justice Secretary for his statement. He raised questions about communications between a relevant MP and his or her constituents in prison and those between prisoners and an MP’s staff. Was he suggesting that the exclusion of calls from MPs’ Westminster and local offices from the surveillance by prison authorities from now onwards will cover MPs’ staff, or was he trying to differentiate between the two? This is not rocket science. Confidentiality is of supreme importance.

[Chris Grayling]

This provision will cover all phone numbers for MPs, their offices and their staff that have been placed in the public arena and to which we have access. If Members have other numbers that are not readily available on the system, but that they wish to be covered by the new provision, I ask them to please let us know. The Under-Secretary of State for Justice, my hon. Friend the Member for South West Bedfordshire (Andrew Selous) will be writing to them to ask them to do so.

[Mr Peter Bone (Wellingborough) (Con)]

rose—

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[Mr Bone]

I congratulate the Secretary of State on following what has become known as the Straw doctrine: if something goes wrong in the Department, go to the House straight away, give them the facts and apologise. What worries me is that the practice has been going on for a number of years. We know that calls have been identified as being to MPs. Why on earth was that not reported earlier? The Secretary of State spoke about the Wilson doctrine. Will he confirm that no MPs’ phone calls are being intercepted at the moment?

[Chris Grayling]

On the latter point, I am not aware of that. Of course, it would not be a matter for my Department, because none of the security services falls within it. It is therefore a question that my hon. Friend would have to raise with other Ministers. Certainly, no such surveillance has passed my desk.

On the former point, this matter arose because of the chance spotting of a name on a list during another investigation, following an allegation by a prisoner that did not relate to the calls of Members of Parliament being listened to. It took two goes with the BT telephone records to identify the nature of the problem. This practice has gone unnoticed because it genuinely was not obvious that it was happening and there was no easy way to discover it. It was only when a clue arose that there may be a problem that there was a trail to follow. That is why it has taken time.

[Mr Hollobone]

I appreciate that the investigation will unearth all the details, but going by the information that the Lord Chancellor has, does he think that this is a problem in a few prisons or in 32 prisons?

[Chris Grayling]

It is difficult to be certain, but I suspect that it is not a problem right across the prison estate. We will have to ensure that the standards in the best prisons are spread to those that are not meeting those standards. It is difficult to know at this stage whether it is a matter of inappropriate staff training or just of it being difficult to spot the name of an MP if they have not been identified. I expect that Nick Hardwick will give us that information and enable us to make appropriate changes.

[Guy Opperman (Hexham) (Con)]

I congratulate the Secretary of State on his speedy response and on the choice of Nick Hardwick, who is clearly the most appropriate person to conduct the review. Will he confirm one final point, which is that no prisoner-lawyer matters are outstanding and that all such matters have been dealt with?

[Chris Grayling]

I am not aware of any outstanding matters. On my hon. Friend’s point about Nick Hardwick, I should tell the House that the reason I did not ask the surveillance commissioners to carry out this piece of work is that they are the auditors of the process. I felt that it was better to have somebody who was not the auditor investigating this matter because we must also check that our audit processes are robust enough.