Telecommunications Restriction Orders (Custodial Institutions) (England and Wales) Regulations 2016

Lord Keen of Elie Excerpts

Tuesday 12th July 2016 Grand Committee

Moved by

[Lord Keen of Elie]

That the Grand Committee do consider the Telecommunications Restriction Orders (Custodial Institutions) (England and Wales) Regulations 2016.

Relevant document: 4th Report from the Joint Committee on Statutory Instruments, 3rd Report from the Secondary Legislation Scrutiny Committee

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the draft telecommunications restriction order regulations provide that the National Offender Management Service—NOMS—and other specified law enforcement bodies may apply to the civil court for an order requiring mobile network operators to prevent or restrict the use of communications devices, including mobile phones, by persons detained in custodial institutions.

The use of mobile phones by prisoners is on the increase. In 2013, NOMS recovered an astonishing 7,451 mobile phone handsets and SIM cards from its estate. In 2014, it seized a record 9,745 devices. That is an average of over 26 handsets and SIM cards seized per day, every day. If these numbers alone are food for thought, then the range of serious crimes committed by prisoners, all enabled by their use of mobile phones, is truly sobering. Prisoners have been convicted of an array of serious organised crimes, all underpinned and enabled by their access to and use of mobile phones. These include: arranging murder; importing automatic firearms into the UK from Europe; smuggling huge shipments of class A drugs from South America; orchestrating the supply of recommissioned firearms across London; controlling the supply and distribution of class A drugs across the UK; two separate and truly audacious prison escape plots—the list goes on. The use of mobile phones by prisoners does not just help them continue their offending in prison but threatens prison security as well. Unauthorised mobile phones are strongly associated with drug supply, violence and bullying inside custodial institutions.

NOMS uses a range of effective passive and active security measures to stop mobile phones getting into prisons and to prevent their use when they do, but the fact remains that it is seizing more mobile phones than ever. The problem is growing and, I say, will continue to grow unless we add to and strengthen the powers that prevent unauthorised mobile phone use. It is a criminal offence for prisoners to possess or use a mobile phone, but because of the relatively small size of handsets and SIM cards and the way prisoners can hide and move these around the prison estate, it is not always possible to take possession of these devices. There is a clear need for new, cost-effective measures to prevent the use of mobile phones which do not rely on first taking possession of the device—powers which allow mobile phones and SIM cards to be put beyond normal use remotely and effectively. These draft regulations achieve those aims.

NOMS or other law enforcement bodies will apply to the county court for a telecommunications restriction order. If the court is satisfied that those devices specified in the application are in use inside a prison, it will order the mobile network operators—MNOs—to take whatever action the order specifies to prevent or restrict the use of those devices by prisoners. I note in passing that each mobile phone has a unique identifier and, therefore, irrespective of the SIM that has been employed, once an order is obtained in respect of the mobile device, it will not be useable inside the prison estate. In practice, the order will involve the MNOs blacklisting the handsets—which prevents the handset from connecting to the mobile network—and disconnecting the SIM cards from their mobile networks. A disconnected SIM card will not work in any handset. These actions will be completed within a maximum of five working days. This quickly puts the mobile phone beyond normal use, without the need to take possession of the handset or SIM.

It may be useful if I summarise the main provisions in the draft regulations. These draft regulations confer on the civil courts powers to compel mobile network operators to disconnect mobile phones and SIM cards that are found by a judge to be in use inside custodial institutions without authorisation. There is no requirement to take possession of the mobile phone first. They provide the National Offender Management Service and other law enforcement bodies with a flexible, cost-effective measure which will add to and strengthen measures deployed to tackle unauthorised mobile phone use in prisons. They will provide that only a judge can order the blacklisting of handsets and the disconnection of SIM cards found to be operating inside prisons. They will protect law enforcement’s capability to disrupt and prevent offending in prisons using covert techniques by providing for court hearings to be held in private, and for non-disclosure of evidence beyond parties to the proceedings. In some circumstances—and only if the court is satisfied that it is not in the public interest —some sensitive evidence may not be disclosed to parties to the proceedings.

The regulations will enable the applicant for a telecommunications restriction order to inform the mobile network operator to remove the terms of a court order if an error is made and a handset or SIM card is incorrectly blacklisted or disconnected, without the need to return to court to vary the order. This safeguard will make sure that any mistakes are quickly put right and that anyone affected by an error can be reconnected as soon as possible in a matter of days, minimising as far as possible the impact of an error on anyone wrongly affected by a TRO. As an additional safeguard, and to make sure that there is independent and transparent scrutiny of these provisions, the use of the draft telecommunications restriction order regulations will be overseen by the proposed Investigatory Powers Commissioner when the draft Investigatory Powers Bill receives Royal Assent. I commend this order to the Committee and beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, as we have heard from the noble and learned Lord, Lord Keen, the order before us today gives an additional power to disrupt the use of illegally held mobile phones in the prison estate by way of a telecommunications restriction order, which requires the telecommunication provider to prevent or restrict the use of communication devices by persons detained in custodial institutions.

I very much agree with the comments from the noble Lord, Lord Ramsbotham, contained in Appendix 1 of the report from the Secondary Legislation Scrutiny Committee. The option to block mobile phone signals seems to me a far simpler and more effective option available, and it seems odd that that was dismissed out of hand largely, it appears, on the grounds of cost. Clearly, there is a serious problem and action needs to be taken. What is proposed here is better than where we are at present, but it is cumbersome—new phones or SIM cards risk being smuggled in, and a constant battle may take place to identify a new device or number so that another application can be made for a telecommunications restriction order. It does not completely solve the problem. As I said, it is cumbersome. It will require multiple applications to court on a regular basis and the more effective option has been ruled out.

As we have heard and read in the papers, mobile phones held illegally in prisons have enabled serious crimes to be committed by prisoners, including the importation of automatic firearms, the distribution of drugs, the sale of firearms, planned escapes and the harassment and intimidation of witnesses. With a list like that, I think the case for a blanket ban, through the use of blocking devices, is compelling. Can the noble and learned Lord tell us what review processes are going to be in place to evaluate this scheme and whether the blocking devices are off the table for good, or is it something the Home Office will reconsider at some point in the future? Although I prefer the blocking option, I fully support the order before us today.

--- Later in debate ---

Does the Minister agree with the important conclusion of our committee? This is not a nit-picking issue but rather fundamental.

[Lord Keen of Elie]

I am obliged to noble Lords.

I will first address the matters raised by the noble Lord, Lord Rowland. I am aware of the report from the Joint Committee. The points made by the committee in its report were not raised with the department before the report was published. However, the Home Office has given careful consideration to this question and its position remains that Regulation 8 is intra vires. Section 80 of the Serious Crime Act 2015 gives power to the courts to make a TRO, and matters such as disclosure, costs, appeals and so on are all supplementary to that process—they do not have to be specified. I acknowledge that the words “supplementary” and “incidental” are broad, but they are broad for that reason, so that they can embrace these issues. In these circumstances, it is the view of the Home Office that the provisions made in Regulation 8 are supplementary to the primary or principal business of Section 80 of the Serious Crime Act 2015, and that remains our position.

[Lord Rowlands]

But surely, when one reads the list in Section 80, a regulation which allows a court to withhold evidence from a party to proceedings is more significant and important than even those in Section 80. Why was it not at least included in the original Act in those sections? I suggest to the Minister and the Committee that it is quite serious. If this precedent goes through, government departments will be able to use this loose, imprecise regulation to introduce the most wide-reaching changes by regulation, which were not included in the original Act. A quite fundamental point is at stake here.

[Lord Keen of Elie]

I note what the noble Lord says, but it is the view of the Home Office that these provisions are simply supplementary to the principal purposes of Section 80. The 13 examples that are listed are not conclusive or exclusive in that regard. However, I will undertake to write to the noble Lord further to explain our position with regard to Section 80 if he wishes me to do so.

[Lord Rowlands]

The Minister could reply to the Committee.

[Lord Keen of Elie]

I turn to the points raised by the noble Lord, Lord Kennedy, with regard to the observations made by the noble Lord, Lord Ramsbotham, at an earlier stage, and in particular the stated preference for blocking technology to be fitted in prisons, as opposed to the use of the sort of technology that is contemplated under the present proposed regulations. NOMS makes use of blocking technology in its estate and is committed to investing more in this area. However, while the technology is effective, it is extremely expensive as an option; it is estimated that the cost of employing it over the entire prison estate would be in the region of £300 million, which is massively in excess of the costs anticipated with regard to the provision of TROs—therefore, there is a real cost issue there. It remains the position that blocking technology is used within the estate and NOMS has committed to invest more in this area, but it will take time. On the employment of blocking technology, it is not just the cost of installation, but the cost of maintaining it in each wing of every prison is also considerable and has to be taken into account. That is why NOMS has adopted the position that these regulations should be employed and believes that TROs are the way forward for the immediate future.

Once commenced, the new powers will add to and strengthen the ability to prevent and disrupt offending behind prison walls. That is a key pledge in our serious and organised crime strategy and part of the Government’s overall commitment to tackling serious crime. We are working towards a commencement date for the regulations in England and Wales of July 2016. I therefore hope that this Committee will see fit to approve the draft regulations.

Motion agreed.