Prisons (Interference with Wireless Telegraphy) Bill

Alex Burghart Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Friday 6th July 2018 Commons Chamber

[Alex Burghart (Brentwood and Ongar) (Con)]

It is a great pleasure to talk on this Bill, which I fully support. This issue first came to my attention when I was working at the Centre for Social Justice, where I was director of policy from 2012 to 2016. We wrote a report while I was there called “Drugs in Prison”, which looked at how we might remove these toxic and addictive substances from the prison estate. We wanted to examine how prisons could protect the public and punish offenders through the deprivation of their liberty, but could also help prisoners to rebuild their lives. This Bill contributes to all three of those work-streams. I congratulate my hon. Friend the Member for Lewes (Maria Caulfield) on introducing it and my right hon. Friend the Member for Tatton (Ms McVey) on having started the whole process. It was also good to hear the hon. Member for Ashfield (Gloria De Piero) supporting the Bill; it is always a pleasure to be in the House when there is cross-party support for something that, as I believe to be the case here, contributes to the cause of social justice.

This is a series of measures that can protect the public. It is utterly unacceptable that people in prison should be able to continue their criminal operations from behind bars. At an earlier stage of the Bill, the Minister referred in true literary form to the passing of messages scribbled on silver through the bars of a prison in “The Man in the Iron Mask”. These days, it is possible not only to pass messages but to take orders on the internet, control our banking activities and really run our lives from our mobile phones. How many of us do not do that? We are failing to protect the public by failing to disrupt criminal activity in this way, and failing to deprive people of their liberty. So much activity can be conducted through mobile phones, and we will not be fulfilling what the public expect of a prison sentence if we continue to allow people unfettered access to the internet while in prison.

That said, I firmly take on board what my hon. Friend the Member for Banbury (Victoria Prentis) said about the Farmer review and the importance of allowing people to stay in touch with their families. That is unquestionably important. I have a number of young people in my constituency with parents in prison and, having spoken to their teachers, I know how important it is for them to be able to stay in touch with their fathers. However, this cannot be used as an excuse to give people in prison 24-hour access to the internet. The public would not expect that, and I am sure that people who have been sent to prison would not expect it either. There is a balance to be struck, and I believe that the powers in the Bill will give us the potential to do that.

That is of course only one part of the picture. Our research into drugs in prison at the Centre for Social Justice was headed up by a former prison governor from Liverpool, Alan Brown. He showed us an extraordinary number of ingenious ways in which people could bring illicit substances into prison, sometimes using mobile technology and sometimes not. I remember him describing how one prisoner had been found building a catapult out of rubber gloves. He had tied many yellow rubber gloves together and then propelled a heavy object connected to a fishing line from his cell window over a tree branch. It landed on the ground, and one of his counterparts out on the street attached a parcel of drugs to the fishing line, which was then reeled in. We also saw examples of drone activity, and I remember one former prisoner describing how he had cut a hole in the side of his mouth in order to create a pocket in which to smuggle drugs into prison. All these examples remind us just how ingenious our prison population is.

[Maria Caulfield]

I am hearing from prison officers that one of the most ingenious ways of smuggling drugs into prisons at the moment is to soak the pages of books and letters in drugs. The prisoners lick the drugs off later when they are back in their cells.

[Alex Burghart]

Edible books! That is extraordinary. I have not heard that example before.

There are many ingenious ways of bringing drugs into prisons, and we know how extraordinarily disruptive they are to prisoners’ lives. A large number of people take drugs for the first time in prison, and the amount of Spice—the recently criminalised new psychoactive substance—in prisons has rocketed in the past few years. That is damaging not only prisoners but prison officers, who often inhale the odourless fumes as they go around on their watch. These substances actively destroy people’s chances of rehabilitating when they are in prison. In many cases, they create or cement addictive behaviours, which then carry on when the person leaves prison, destroying their chances of being able to move into work. Being able to tackle telephony in prisons is one important way in which we can start to disrupt this trade and so give people in prison more hope that they will be able to turn their lives around on release.

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[Robert Courts]

Yes, my hon. Friend is absolutely right about that. The ability to load software such as virtual private network software on to a telephone, to use WhatsApp, which is encrypted, and to communicate with people anywhere in the world while being able to disguise one’s own identity and geographical position presents enormous challenges for those who are trying to make sure that prison is a disciplined place that protects the public from the activities of those within it.

It is extraordinary that going to prison is really only a nuisance, and that if people have access to the right technology, they can carry on from inside prison in exactly the same way as they carried on outside, with only minor inconvenience. We should not allow that. We can see from the statistics—13,000 phones were seized in 2016, going up to 23,000 in 2017, as my hon. Friend the Member for Lewes said, with 7,000 SIM cards seized—that this is a real and pressing problem that we have to deal with now.

Why do we need this change to the law? Essentially, the existing law, as I understand it, enables governors to interfere with specific devices, but we are always playing catch-up. We do not know what technological advances are likely to come in future; we simply know that they will come, and we need to be in a position to address them as and when they arise.

Let me address briefly some of the objections to the Bill that are germane to some of the issues we have been discussing. Having practised at the Bar, I am particularly sensitive to some of them. My hon. Friend the Member for Banbury (Victoria Prentis) mentioned the important rehabilitative aspect of communication, but it is important that we see communication between prisoners and their families as distinct from their having mobile phones; the two are not the same thing. Prison must, of course, be a punishment and it must protect the public, but having represented people over the years, I have seen countless examples of people who go into prison, meet people and learn more criminal skills there, and come out and continue their criminal activity.

[Alex Burghart]

On families staying in touch when a family member is behind bars, does my hon. Friend agree that it is extremely important to maintain personal, physical contact? Being able to make weekly or daily calls is great, but it is hugely important for people to spend physical time with their child, and too often that is not available.

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[Rory Stewart]

That is absolutely right. Indeed, the very existence of the Bill shows how quickly technology is changing. We began in 2007 simply by making it illegal to have a mobile telephone in prison—it carries a maximum sentence of two years. One would have thought that there would therefore be no problem with simply jamming the signal in prisons to prevent the use of mobile telephones, because having one was illegal. What on earth is the problem with putting in place the technology to stop that? What we discovered, of course, is that that presents a huge range of philosophical, legal and technological challenges. That explains why we had another Bill in 2012 and, thanks to the very good work of my hon. Friend the Member for Lewes, another Bill now in 2018.

Those challenges are quite significant. Let me deal first with the philosophical challenge. Article 8 of the European convention on human rights allows for a right to privacy. The 2012 legislation began to give the Secretary of State the authority to deal with the question of the right to privacy, and also to deal with the unanticipated consequences, which have been raised by various hon. Members, of the blocking technology affecting the lives of people outside the prison walls. Even that is not sufficient, because there is then a series of changing regulations relating to Ofcom, for example.

The 2012 legislation tried to deal with the gap between what can be authorised to a Crown servant—in this case the governor of a public prison—and what instructions can be given to the director of a private prison, such as one run by G4S, Serco or Sodexo. That was resolved in 2012, but what happened then—this point has been raised already—is that we are simply walking around a prison with various devices. What devices can be used in a prison? Before this legislation, we could wander around a prison with a metal detector, which can pick up the metal in a mobile telephone. We could wander around with a wand that picks up the microwave signals from a phone, but the phone might be very small and hidden almost anywhere in a messy cell. What we were unable to do, except with the co-operation of the mobile telephone company, is operate from the mast.

Under the previous legislation, we were forced effectively to jam the signal by transmitting on the same frequency that the mobile telephone company transmits. The company moves from 3G to 4G and the signal changes. Let us imagine that there are three masts from three companies surrounding a prison, all of which are transmitting on different frequencies. Those frequencies change over time, as do their strengths. The prison will find itself trying to transmit on a frequency, and when the frequency changes they miss it. They find the frequency again and they transmit at a certain strength, but then the signal strength increases against them. As they increase the signal strength, they increase the likelihood that they will take out mobile telephone communications from the surrounding houses. That would be a real risk in Brixton, for example.

We are dealing all the time with technological change. The speeches of my hon. Friends the Members for Horsham, for Erewash, for Torbay (Kevin Foster) and for Witney (Robert Courts) were particularly powerful in dealing with the ways in which that technological change drives this legislation, necessitates this legislation, and will challenge this legislation.

[Alex Burghart]

My hon. Friend is making an extremely powerful speech. May I raise a practical point? I imagine that people living or working near prisons may fear that this change will reduce the quality of the signals in their houses or businesses. What reassurances can my hon. Friend give?

[Rory Stewart]

That is a fundamental question, and I am pleased that my hon. Friend has asked it. It is, in fact, addressed both in the 2012 Act and in the schedule to the Bill. In the schedule, new subsection (4A) provides for the Secretary of State, in authorising the mobile telephone company—the mobile network operator—also to place an obligation on that operator not to interfere with the communications of individuals outside the prison walls, and to require the operator to take remedial action if any such interference should take place. That is a very good challenge.

My hon. Friends the Members for Torbay and for Witney also raised other issues, such as encryption and the potential setting up of a wi-fi network within the prison walls. That is not always easy. I assure Members that whenever we try to put wi-fi into a prison, we find that 150-year-old Victorian walls make it almost impossible to get a signal into it. On the other hand, criminals can often be extraordinarily entrepreneurial and ingenious in getting around problems that may defeat our engineers.

At the core of this, however, is not simply a question of technology. Let us return to the question of the four purposes of prison, and let us return in particular to the question of retribution. The key idea of retribution in relation to the mobile telephone is the idea that you are punishing a criminal for a crime that he committed in the past. As was suggested by a number of learned Members, that is a fundamental philosophical principle relating to the nature of the rights of that individual.

As Immanuel Kant pointed out, the individual should, as a matter of rational logic and a categorical imperative, be treated only as an end in himself, not as a means to an end. In other words, we should not be punishing individual A in order to change the behaviour of individual B. We should not even be punishing individual A in order to change the future behaviour of individual A. As Kant argues, the retributive punishment should be directed only towards the historical action of the individual, and should relate only to that historical crime. Kant is therefore arguing that neither deterrence, which is punishing individual A in order to affect the behaviour of individual B, nor rehabilitation, which is punishing individual A in order to affect the future behaviour of individual A, is a valid form of punishment.

Those Members who advanced utilitarian arguments were making a completely different set of points. Their arguments were, in fact, arguments about society more broadly. They were suggesting that what matters is not the historical action committed by the individual, but society as a whole, and the future consequences. They might well argue that what matters is not what the individual did in the past—that has happened, and there is no point in crying over spilt milk—but how we change society in the future. How do we ensure, through the punishment that we inflict on this individual, that this individual does not go on and reoffend? How do we ensure, through the punishment that we inflict on this individual, that others are deterred from committing a crime?

In that fundamental clash between a Kantian deontological world view focused on the rights of the individual and the dignity of the individual, and a consequentialist or utilitarian argument in which the individual may suffer for the greater happiness of the greater number, we have something that cannot be resolved in this Chamber, because such fundamental values and principles are beyond the ability of this Chamber to resolve. All we can try to do—through the media, through civil society, through Parliament, through legislation—is listen to these types of debate, understand them and articulate them, but we can never fully resolve them. That is why this legislation needs to be able to contain a powerful and enormous element of flexibility. As technology changes and this device—this mobile telephone that I am now holding up—becomes more powerful, as the ways in which 4G or 5G technology emerge, as my hon. Friend the Member for Havant (Alan Mak) points out, and as social attitudes towards punishment, crime and indeed social attitudes towards mobile telephones change, we need legislation that can keep up with that change. A day may come when some elements of the speech made by my hon. Friend the Member for Banbury, where she emphasised the centrality and normalcy of this phone in our everyday family lives and especially in the lives of our children, may begin to predominate over the kinds of argument made by my hon. Friend the Member for Croydon South.

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[Rory Stewart]

That is an interesting question, and the answer is that, as currently drafted, this word “authorise” means exactly that: it is giving legal permission. The anxiety of the mobile telephone companies would be that without that authorisation, were they to conduct these operations they would be in breach of Ofcom regulations and ultimately in breach of article 8 of the Human Rights Act 1998. Under this legislation therefore, all we are doing is saying to a willing mobile telephone company that, should it voluntarily wish to work with us, this gives it the authority to do so.

My hon. Friend the Member for Croydon South has raised an interesting point, however. What would happen if the mobile telephone company were to turn round and refuse to comply? To some extent that is hypothetical, because we have not yet encountered a mobile telephone provider that is not prepared to work with us on this, for a range of reasons. The mobile telephone companies’ relationship with Ofcom and the Government is complex, deep and interlinked, and they generally wish to retain the goodwill of the Government. It is also true that in some cases we would have a commercial contract with a mobile telephone company to undertake this work, so it would have a financial interest in working with us. Hypothetically, however, it remains the case that under this legislation, a mobile telephone company would be able to refuse to provide the service. We do not believe that it would do so, but my hon. Friend is absolutely correct to say that, theoretically, it could do so under this legislation.

[Alex Burghart]

Has my hon. Friend’s Department received assurances from the major providers that they are happy with the legislation as it stands and that they intend to work with the Government in the future?

[Rory Stewart]

Yes, the Department works closely with the major providers and our understanding at the moment is that they are all willing to work with us in line with this legislation.

I shall move towards a conclusion, and I shall try to end within the next three minutes. I want to move quickly through the Bill, and to clarify matters for hon. Members before they vote on it. In proposed new subsection (2B), “preventing the use” and “detecting or investigating the use” are the key purposes to which this authorisation can be put. In other words, the point of this is to ensure that we can prevent someone from using their mobile telephone, that we can find their mobile telephone, and that we can work out what they are doing with it.

Proposed new subsection (2C) will probably trouble, confuse, amuse and perplex a number of Members. It states that an authorisation may be given in relation to

“one or more relevant institutions…one or more kinds of relevant institution…or relevant institutions”.

Even a very learned and distinguished colleague such as my hon. Friend the Member for Banbury might struggle to work out why on earth we are distinguishing between those three categories. Perhaps she would like to intervene on me at this point. The answer is that parliamentary counsel is trying to provide for the possibility of our giving authorisation to, for example, two prisons in the adult male estate, such as Brixton and Wandsworth, or to two kinds of prison, let us say a young offenders institution such as Feltham and an adult male institution such as Brixton. Alternatively, we might wish to give a more general authorisation to all institutions of the relevant kind—for example, all the young offender institutions in the country or all the adult male institutions in the country. This is a perfect time for my hon. Friend the Member for Banbury to intervene on me.