Prisons: Safety and Security

Debate between Lord Keen of Elie and Lord Beith

Wednesday 21st December 2016 Lords Chamber

[Lord Beith (LD)]

Will Ministers address the urgent need to deal with the release of IPP prisoners who are beyond their tariff? What use is being made of the reserve list, which Mr Grayling set up in 2014 when he was Secretary of State, of former prison officers and others who could be called in during situations such as this?

[Lord Keen of Elie]

I am obliged to the noble Lord. Public protection remains a key priority in the context of how we deal with IPP prisoners. These people have been sentenced for offences involving serious violence and serious sexual crime. We set up a new unit within the Ministry of Justice to tackle the backlog with respect to IPP prisoners and we are working with the Parole Board to improve the efficiency of that process. We have an enhanced case-management system. We are diverting recall cases away from the Parole Board so that it can focus on reviewing IPP prisoners. In the past year, 38% of IPP prisoners who attended oral hearings completed by the Parole Board went on to be released. So matters are improving. Indeed, in the last year we released 512 IPP prisoners from custody—the largest number so far—bringing the total figure below 4,000.

Serious Disturbance at HM Prison Birmingham

Debate between Lord Keen of Elie and Lord Beith

Monday 19th December 2016 Lords Chamber

[Lord Beith (LD)]

My Lords, in thanking the noble and learned Lord for repeating the Statement I ask him to recognise that, but for the skill, courage and day-to-day resourcefulness of prison officers and governors across the prison system, there would have been even more serious and violent incidents than have occurred. The prison system is holding far more prisoners than it is resourced to manage. As a result, rehabilitation programmes are disrupted or not in place at all. To make matters worse, when there are riots those prisoners who want to do their time peaceably, take the courses and train for a job are prevented from doing so and therefore more likely to reoffend when released.

I put two questions to the noble and learned Lord. First, will he say whether G4S had fallen short of its contracted staff numbers at Birmingham? Then, on the wider question, when will Ministers accept and cease to deny that there are offenders in prisons who could be better dealt with by tough community sentences? Unless we use the expensive resources required for prison places more sensibly, as most other European countries do, and unless we address sentence inflation we will build up even more potential for future violence in prisons. Getting the numbers down is not a quick solution to the immediate crisis, but if Ministers do not begin to deal with it now the problems in our prisons and outcomes on release will just get worse.

[Lord Keen of Elie]

I am obliged to noble Lords. I begin by responding to some of the observations made by the noble Lord, Lord Beecham. Staff in all our prisons, whether public or private, work hard to keep prisoners safe and to address the causes of reoffending. Our recently published data show no obvious differences in performance levels between public and private prisons. There are of course issues across the entire prison estate, seen in both public and private sector, and there is no question but that these are attributable to a mix of factors, including the increased use of psychoactive substances, the increased availability of mobile phones within prisons, the increased level of gang violence within prisons, as well as issues about retention of staff and numbers of staff, all of which we are seeking to address and have addressed already by virtue of the White Paper. So far as G4S is concerned, we robustly monitor the performance of all contractors providing services to the Ministry of Justice, and privately managed prisons are subject to the same rigorous external inspections as those in the public sector by Her Majesty’s Inspectorate of Prisons.

With regard to the question raised by the noble Lord, Lord Beith, as to the precise number of staff at Birmingham, I do not have those numbers to hand but I am quite happy to write to him and will place a copy of that letter in the Library once I have the relevant information.

On sentencing, since 2010, the prison population has remained relatively stable and static, at about 85,000. There has been a marked decrease in the number of those serving short sentences, by 1,500, but there has been an increase in the number of those serving longer sentences, especially for sexual offences and offences involving violence. Public safety must be at the forefront of our minds when we address these issues.

We are seeking to increase staffing levels across the entire prison estate and are investing in the prison estate itself—a £1.3 billion programme is under way. In February next year, Her Majesty’s Prison Berwyn will open in Wrexham. It will be the second-largest prison in Europe and will ensure that we have enough capacity within the prison estate to address overcrowding.

So far as an investigation is concerned, as I indicated previously, there is already a proposal that an inquiry should be undertaken by Sarah Payne, adviser to the independent Chief Inspector of Probation. We will await the outcome of that investigation before we decide what further steps should be taken.

Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016

Debate between Lord Keen of Elie and Lord Beith

Tuesday 25th October 2016 Lords Chamber

[Lord Beith (LD)]

My Lords, I hesitated to rise before the noble Lord, Lord Beecham, because I was sure he would have found there was something wrong with this instrument that I had not managed to discover. I am quite touched to find that he agrees with it as much as I do. It is a small but welcome improvement in the legal aid situation which has caused many people a great deal of anxiety. Although I fully recognise that legal aid resources are not—and cannot be— unlimited, their application was not always to the public good. There were many situations in which one party had the benefit of legal aid and the other party could not really afford the costs of privately financing the case. So the position is more complex than it sometimes appears.

The effect of this instrument, as I understand it from the Government’s memorandum, is that about 70 cases a year will attract legal aid which would not otherwise have done so, and about £250,000 has been found from somewhere to ensure that this can be financed. That is welcome news, and it opens up the possibility that there will occasionally be a case which is of real public value—because ultimately it will affect cases brought by other people—or is of fundamental importance to an individual, which would not have got legal aid and would not have been proceeded with, but which will now be satisfactorily dealt with by the courts system. That has to be an improvement, so I welcome the instrument. I also, of course, welcome the review—to which the noble Lord, Lord Beecham, referred, and which the House of Commons Justice Committee, which I then chaired, was particularly keen to see—of a piece of legislation that had such far-reaching effects on access to justice.

[Lord Keen of Elie]

I am obliged to noble Lords, particularly the noble Lord, Lord Beecham, for their observations. I shall respond to those. Of course a review of LASPO will have to take place before April 2018, and we will endeavour to keep the House informed as to when that review will take place. There is certainly no present intention to limit the scope of the review, but that will be addressed at the time when the review is determined. Again, we will keep the House advised on that point.

With regard to the point made by the noble Lord, Lord Beith, it is correct that additional funding has been found, for what is, I accept, a small, but nevertheless an important, change to the merits criteria regulations, which will at least embrace some further parties who would otherwise fall outwith the ambit of the legal aid regulations. I commend these regulations to the House.

Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Beith

Report: 2nd sitting (Hansard - part two): House of Lords
Monday 17th October 2016 Lords Chamber

[Lord Beith (LD)]

To pose a legal challenge which is not based on any instance or evidence of the basis on which such a challenge could be made—I certainly cannot think of a basis on which someone could require the production of knowledge of the means used for interception, based on existing legislation.

[Lord Keen of Elie]

Amendment 137A seeks to insert a provision into the Bill that would require the Investigatory Powers Commissioner to notify the subject of a targeted interception or equipment interference warrant in certain circumstances. The amendment tries to tightly draw those circumstances, and I am grateful to the noble Lord, Lord Paddick, for recognising in drafting it that a significant number of factors should rightly preclude such notification from taking place. Nevertheless, I still think the amendment could threaten to undermine the capabilities that law enforcement and the security and intelligence agencies rely on to pursue the most serious wrongdoers. The amendment recognises that notifying a person that they have been the subject of surveillance may have an immediate impact on an investigation—or it may have damaging effects on the public interest or national security more broadly.

That being the case, it is extremely difficult to envisage a scenario where notification could responsibly be allowed to occur. Notifying a person that their communications have been intercepted, irrespective of whether that notification included any further details about the methods used, would necessarily risk hindering a future investigation. For example, there will be circumstances where a terrorist or serious criminal who was previously the subject of a warrant will no longer be an active suspect in an investigation. Advising that individual that they have been the subject of interception may help them to evade detection if they were minded to return to or resume criminal activity.

On one reading, then, the amendment would not provide for disclosure other than where a person has been the subject of deliberate wrongdoing or a serious error. If that is the intention behind the amendment—and I fear it is not—it is redundant, because there is already provision in the Bill to notify people who have been the subject of serious errors.

The alternative, of course, is that the amendment should provide for individuals to be notified in a wider range of circumstances. I find that prospect troubling. As I say, it is never possible to know whether an individual will return to criminality in the future. Even if they do not, revealing the fact that they were the subject of a warrant may provide some small insight into the techniques and capabilities used by law enforcement and the security and intelligence agencies. That, in turn, would provide an avenue for the most determined and capable actors to piece together a picture of the agencies and how they work, handing an advantage to those we are working hard to pursue—let alone the prospect that they might seek disclosure by way of a review of the conduct of the authorities in order to determine exactly what methodology had been employed. For all these reasons, I hope the noble Lord will be prepared to withdraw this amendment.

I turn to Amendments 137B to 137F, which, as the noble Lord indicated, are in a sense consequential on his primary amendment, and which deal with error reporting as provided for in Clause 209. Clause 209 is of the utmost importance. It provides that if a person has been the subject of a serious error, and it would not be contrary to the public interest, the commissioner must inform that individual of the error and their right to apply to the Investigatory Powers Tribunal. The judicial commissioner must provide such details as considered necessary for the person to bring a claim.

Clause 209 seeks to maintain a very delicate balance between two important but competing interests. On one hand, there is the right of the individual who has suffered harm as a result of the error to seek some sort of redress. On the other, there is the long-standing security and intelligence agency principle of neither confirming nor denying that an individual has been the subject of investigatory powers. This principle is vital to the security and intelligence agencies, as it prevents those who would wish to do us harm launching spurious complaints and claims in order further to understand the agencies’ most sensitive capabilities. I hope the noble Lord will agree that, given the fine balance between these two principles, it is right that the decision be taken on a case-by-case basis by the commissioner, a senior member of the judiciary who will have full access to the facts on which to base their decision.

Amendments 137B and 137C would remove the commissioner’s discretion to make that judgment. He would no longer be able to consider how the wider public interest would be best served, and would instead be compelled to tell an individual if they had been the subject of a serious error, regardless of the consequences and the harm that might be caused. I do not think that is right. It is, for example, conceivable that an investigation into a dangerous criminal gang may result in action mistakenly being taken against an innocent associate of one of the gang members. That would be unfortunate, and the commissioner would undoubtedly want to ensure that remedial action was taken at an appropriate time. But before doing so, it is right that the commissioner should consider the public interest in informing the person, balanced against the risk of undermining an ongoing investigation, and that is what the clause as drafted provides for.

Amendment 137D seeks to require notification where the error has not caused serious harm or prejudice but may do so in the future. I do not think it necessary or appropriate, given the difficult balance that has to be struck here, for persons to be informed when there is such an error. This would put the commissioner in the difficult position of speculating on potential future consequences. Additionally, the commissioner does not get only one opportunity to assess the harm that has occurred. We would of course expect the commissioner to keep under review the consequences of an error and, if it resulted in harm at some point in the future, it would be open to the commissioner to inform the individual at that point. This seems a more sensible approach than putting the commissioner in the position of second-guessing what potential future consequences may one day occur or not occur.

Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Beith

Wednesday 7th September 2016 Lords Chamber

[Lord Beith (LD)]

My Lords, my noble friend has very helpfully referred to the qualification of economic well-being as a justification by reference to national security and he rightly probed why it appears in that form. It gave me some satisfaction, in a sense, that it was qualified in this way because, in my years on the Intelligence and Security Committee, I occasionally thought that the concept of economic well-being was capable of extraordinarily wide interpretation. If it was being interpreted very widely in order to support actions which might in some way touch upon economic well-being, it is appropriate that it should be qualified if the powers engaged are sufficiently wide as potentially to affect the rights and liberties of other people. In this legislation we are talking about powers which can impinge upon the lives and liberties of other people unintentionally or not as part of the purpose but as a necessary consequence of being able to use things such as bulk datasets or equipment interference. Therefore, I hope that the reason that economic well-being is qualified by reference to national security is a recognition that some of the powers given in this Bill require particularly stringent qualification to be permissive and used. If that is so, I welcome it.

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

My Lords, I am obliged to the noble Lord, Lord Paddick, for making it clear that these are essentially probing amendments and I respond to them in that light. These amendments relate to the issuing, approval and modification of warrants under Parts 6 and 7 of the Bill.

Amendments 194J, 201B and 210B would remove from the Bill an important safeguard which requires that a bulk interception, acquisition or equipment interference warrant may be issued only if doing so is in the interest of national security. The Bill provides for a warrant under Part 6 to be issued where it is necessary on three statutory grounds: in the interests of national security; for the prevention and detection of serious crime; or in the interests of the economic well-being of the United Kingdom where those interests are also relevant to national security.

Clause 129(1)(b)(ii), Clause 146(1)(a)(ii) and Clause 164(1)(b)(ii), which these amendments seek to remove, ensure that one of those statutory grounds must always be national security. This is clearly an important safeguard which recognises the particular sensitivity of bulk powers and therefore limits their use to the most tightly drawn circumstances. In other words, the Bill says that a bulk warrant provided for in Part 6 of the Bill must have,

“in the interests of national security”,

as one of the statutory purposes to authorise collection. However, collection can also be authorised to prevent serious crime and to protect the economic well-being of the United Kingdom in addition to being authorised to protect national security.

The inclusion of the additional statutory grounds relating to serious crime and economic well-being remains vital. There will be circumstances where it is necessary and proportionate to select for examination data collected under a bulk warrant in order to, for example, prevent and detect serious crime, such as to detect and disrupt child sexual exploitation. However, the Bill ensures that the initial collection of data could be authorised only if doing so is necessary to protect national security, albeit that it may be necessary for one of the other two purposes that I have already described. In other words, there is a relationship between the statutory requirements for the bulk warrant and the operational purposes which will be specified in the same warrant application, some of which may relate to the prevention of serious crime or economic interest.

On that last point of economic interest, it has been asked how that can be distinguished from national security. In a sense, it is a matter of emphasis at the end of the day. The ISC looked at this in detail, and at the need to retain it as a statutory purpose in its own right. It took extensive evidence from the agencies and, indeed, from the Foreign Secretary. I believe that Dominic Grieve was the chair at that time. He made it clear during Report in the Commons that the ISC had been persuaded that there remained a need for safeguarding the UK’s economic well-being to continue to exist as a statutory purpose for the use of the investigatory powers in the Bill in their own right. Therefore, I accept that it is linked to national security but it is a matter of underlining the need to have in mind the cases in which economic well-being will be the prevailing factor.

Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Beith

Monday 5th September 2016 Lords Chamber

[Lord Beith]

My Lords, these amendments address the fact that the fundamental principle in Clause 207 is very heavily qualified, even in cases where the error might be serious. I draw your Lordships’ attention to paragraph 5.42 of David Anderson’s report on bulk powers, in which he deals with errors. He rightly sets this in the context of a strong culture of compliance and self-reporting in the agencies when things go wrong. I agree with that, and it is right that we discuss it in that context. However, the fact remains that there are errors and, as the Minister pointed out, the statistics of errors are reported, so we know what they are. My concern is to be satisfied that most of these errors, if they impinge on the rights of a citizen, are notified to the citizen so that they know they can take further action.

I particularly draw attention to one case. David Anderson says in paragraph 5.42:

“In one very serious incident in 2014, an individual who deliberately undertook a number of unauthorised searches for related communications data had his employment terminated and vetting status withdrawn”.

That clearly indicates the point I made earlier: the agencies take this matter very seriously. I am interested in whether in that case the individual or individuals who may have been the victims of that improper use of the powers would be notified under the provisions of this clause, or whether the clause is so qualified that they might not be. Quite clearly, powers were abused by an individual acting without authority and wrongly, and the individual and the agency paid the price for doing so—he lost his job, which, from the limited description, seems entirely right. However, it is not clear whether the citizen, who had wrongly been the subject of this investigation, would know and would therefore be able to pursue his rights.

[Lord Keen of Elie]

Clearly, I am not in a position to comment on a particular case. However, in the context of what is said at paragraph 5.42, one has to remember that there is the further issue of whether it would have been in the public interest to make disclosure. That necessary test would have had to be met before there would have been disclosure, however serious the original breach.

Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Beith

Monday 5th September 2016 Lords Chamber

[Lord Beith (LD)]

My Lords, it is quite important that we get this right. As I think the noble Lord, Lord Murphy, will remember, one of the commissioners under the previous arrangements was found by the ISC to have been hopelessly inadequately provided with staff, to such an extent that there was a huge build-up of correspondence. That was some years ago and it took some effort by Members of our party as well as of his to ensure that that was quickly remedied.

I also have experience as a constituency Member of Parliament in dealing with an employee issue, the merits of which I will certainly not go into but which was not helped by its being unclear who the employer was. I am talking about somebody who was engaged in the office of one of the commissioners. So I am grateful to my noble friend for trying to make sure that we get this bit right.

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

My Lords, I turn first to Amendment 194ZA, regarding the provision of funds to the Investigatory Powers Commissioner, and I note that the noble Baroness, Lady Hamwee, has referred to this as a probing amendment.

I entirely agree with what this amendment seeks to achieve. The Investigatory Powers Commissioner must be free to appoint whomever he or she thinks is right and proper and to arrange their office as they see fit. It is certainly true with the current independent commissioners that, although they receive their funding from the Secretary of State, they are free to employ whomever they think best suited for any role they have to fill.

It has always been the intention under the Bill that the commissioner should appoint whom they wish. However, I would not want to accept this amendment as drafted since it may preclude the Secretary of State providing non-monetary assistance to the IPC. I will consider further whether anything more should be done to put beyond doubt that the commissioner will have autonomy over the appointment of staff, but I hope I have made the intention absolutely clear in response to the request from the noble Baroness. On that basis, I invite her to withdraw the amendment.

On Amendment 194DA, it is certainly the case in practice that the president of the Investigatory Powers Tribunal is consulted before the budget allocated to the tribunal is settled. The tribunal then has sole responsibility for paying the salaries and expenses of the tribunal. This is a sensible way of doing things and ensures that the tribunal has sufficient funds to conduct its business. I see no reason for changing this practice.

Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Beith

Wednesday 13th July 2016 Lords Chamber

[Lord Keen of Elie]

I will begin with that last point on Amendments 85A and 85B. The Government believe that the power is necessary for the reasons outlined by the noble Lord, Lord Paddick, but we are conscious of the terms of the report made by the Delegated Powers Committee. We are still reflecting on those comments and intend to respond in due course. I hope that that will give some satisfaction to the noble Lord. The matter is still under consideration and no final view has been arrived at.

I now turn back to the matter raised by the noble Baroness, Lady Jones. By way of background, your Lordships will be aware that, last November, the Prime Minister announced additional protections for the communications of Members of Parliament and Members of other legislatures, including the Scottish Parliament and the assemblies. Clause 26 sets out the requirement for the Prime Minister to approve the Secretary of State’s decision to issue a warrant to acquire communications sent by a Member of Parliament or intended for a Member of Parliament. Again, I use the term “Member of Parliament” to embrace Members of the other legislative assemblies referred to by the noble Lord, Lord Murphy.

Amendment 43A would remove the role of the Secretary of State from the warrant authorisation process where the Wilson doctrine is engaged—I will come on to the Wilson doctrine in a moment—which would in fact reduce the safeguards for parliamentarians. In line with the commitment given by the Prime Minister last November, the Bill provides a triple lock where warrants concern a parliamentarian’s communications: they must be authorised by the Secretary of State, agreed by the Prime Minister and authorised by a judicial commissioner.

I will not rehearse again the arguments for the double lock at this point, but it is important to remember that it was endorsed by the Joint Committee of Parliament that scrutinised the draft Bill and that, following amendments made in the other place, it enjoyed cross-party support. The triple lock for parliamentarians simply adds an extra layer of checks to this important process. It is difficult to see what possible benefit would accrue from removing one of those checks—that is, the Secretary of State—which would also serve to undermine the accountability of the Secretary of State to Parliament for the activities of the agencies that the Secretary of State oversees. In view of that, I respectfully invite the noble Baroness to withdraw her amendment.

Amendment 45 would provide a role for the First Minister of Scotland in approving warrants to acquire communications sent by or intended for a Member of the Scottish Parliament. However, we do not consider that it would be appropriate for the First Minister to have a role in approving a decision taken by the Secretary of State on what is a reserved matter.

As to the operation of serious crime warrants, which the noble Lord, Lord Paddick, might have had in mind, particularly in Scotland, it is of course for Scottish Ministers to determine what additional safeguards they wish to provide in relation to parliamentarians. That is a devolved matter within their competence, and the same may in due course apply in the context of the Welsh Assembly—or, indeed, any other assembly that is set up.

The effect of Amendment 44 would be to provide for the Prime Minister to inform the relevant legislature that such a warrant or warrants has or have been issued—a point raised by the noble Lord, Lord Beith. Noble Lords will be aware that the Wilson doctrine, as it is termed, followed from a statement made by the then Prime Minister that, as a general policy, there would be no tapping of MPs’ telephones—but that, if there was a need to make a change to this general policy, the Prime Minister would, at a time of his choosing and when the national security situation allowed, make a Statement in the House. That is what is encompassed within the Wilson doctrine.

In a Written Ministerial Statement last November, the Prime Minister again confirmed that the Wilson doctrine continued to apply. He went on to explain the Government’s position on the Wilson doctrine and how it would apply in the 21st century. In his Statement, the Prime Minister was clear that the Wilson doctrine does not place an absolute bar on the interception of parliamentarians’ communications and confirmed that he would be consulted should there ever be a requirement to target a parliamentarian under a warrant issued by a Secretary of State. As has been noted, particularly as a result of the changes in the other place, the Bill now goes further by providing that the Prime Minister must provide explicit authorisation for a warrant to target a parliamentarian’s communications.

I understand that every Administration since 1966 has confirmed that the Wilson doctrine remains in place. This Government have done so on numerous occasions in Parliament. The doctrine includes the Prime Minister’s commitment to inform the relevant legislature, at a time of his choosing and when national security allows, should there ever be a change to the general policy. There has been cross-party agreement on this issue for more than 50 years. In view of the Prime Minister’s statement, and the stringent safeguards in the Bill, which go further in statute than was previously provided for, no further statutory provision is considered necessary.

[Lord Beith]

Does that not make for a very limited interpretation of the Wilson doctrine? For the Prime Minister to have to come and make a Statement to the House, it would have to be, “It is now the Government’s policy to intercept the communications of MPs generally, or widely, and this represents a change in policy”. That is the only way I can understand the doctrine working in the way that the Minister described.

[Lord Keen of Elie]

I concur with the observation of the noble Lord. It would have to be a change to the general policy that prompted a Statement to Parliament. It is not the use of the statutory powers that will ever prompt a Statement to Parliament. Indeed, if a parliamentary Statement were required in those circumstances, it would essentially undermine the purpose of these investigatory powers.