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

Lord Kennedy of Southwark Excerpts

Tuesday 12th July 2016 Grand 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.

[Lord Rowlands (Lab)]

My Lords, I have had three privileges in my life. I have had the privilege of serving in every Parliament for the last 50 years. I have also had the additional privilege—the most recent one—of being a member of the Joint Committee on Statutory Instruments, and it is in that context that I rise to speak. I refer in particular to that part of the report in which our committee reported on the use of the statutory instrument.

Over the years that I have been in both Houses, these were all too familiar words:

“Regulations … may … make incidental, consequential, supplementary or transitional provision”.

Both Houses have warned Ministers and departments over the years not to use these generalised and imprecise words to promote regulations of importance and significance. Our own committee made that very point in the eighth report of 2008, yet here we are in 2016 with Regulation 8 being promoted through these imprecise and general words.

I remind the Committee what Regulation 8 seeks to establish. It will give the courts the power to order that some or all documents can be withheld and prevent a party to the proceedings from having access to such information. Who would deny that that type of restriction is both important and significant? Who would claim that this is just a consequential, incidental, supplementary or transitional matter? If the Government intend to promote Regulation 8 on that basis, which of those applies? Is it incidental? It cannot be, surely. An instrument which will restrict access to information for parties in a hearing is certainly not incidental. Is it consequential? No, how can it be consequential? Is it supplementary? Is the Minister going to rest his case on the basis that this is just a mere supplement? An instrument of this kind, leading to the possible restriction of parties’ access to evidence in the proceedings? That cannot be supplementary. On what possible basis can the Government promote Regulation 8 as regulation that is incidental, consequential, supplementary or transitional?

The Government’s case is even more feeble and flimsy when one goes back and looks at the parent Act. The Act stipulates, in considerable detail, in Sections 80(3) and (4), the matters that should be subject to regulations. Section 80(3) lists some seven matters that must be considered in regulations, while Section 80(4) lists six that may be. Some 13 matters are specified in the two subsections, but what is not in them is the issue of the power to give the courts the right to withhold evidence. Why is that not there? This is an important issue. The 2015 Act specifically listed the kinds of issues that should be dealt with and addressed in regulations, but the important one that is now being brought forward, of withholding evidence, was missing.

Why was it not included in the list in the parent Act? There must have been some debate in the department about it, or among Ministers about such a big issue. Why was it left out? Why was it excluded and why is it now being brought in? Was it an oversight? Did they forget that this was going to be a big issue? If so, they are now trying to remedy an omission or an oversight. I want to find out from the Minister why and how an important issue such as this was left out of the parent Act and is now being brought forward and promoted under this raw, general and imprecise regulation. We deserve answers on this mysterious issue.