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Chamber and committees

Justice Committee

Meeting date: Tuesday, November 14, 2017

Agenda: Subordinate Legislation, Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill: Stage 1, Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill: Stage 1, Justice Sub-Committee on Policing (Report Back), Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill (Witness Expenses), Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill (Witness Expenses)


Subordinate Legislation

Telecommunications Restriction Orders (Custodial Institutions) (Scotland) Regulations 2017 [Draft]

The Convener (Margaret Mitchell)

Good morning and welcome to the Justice Committee’s 33rd meeting in 2017. Apologies have been received from Liam McArthur.

Before we move to the first agenda item, we have declarations of interests.

Liam Kerr (North East Scotland) (Con)

I declare my interest as a solicitor with a current practising certificate with the Law Society of England and Wales and the Law Society of Scotland. I am also a landlord in Edinburgh’s private rented sector and a member of the Scottish Association of Landlords.

I remind members that I am registered on the roll of Scottish solicitors.

The Convener

Those declarations are not necessarily pertinent to item 1, but they will be pertinent to later items on the agenda.

Agenda item 1 is consideration of the draft Telecommunications Restriction Orders (Custodial Institutions) (Scotland) Regulations 2017, which is an affirmative instrument. I welcome Michael Matheson, Cabinet Secretary for Justice, and his officials. Ann Davies is senior principal legal officer in the Scottish Government’s directorate for legal services, and Jim O’Neill is senior legal services manager in the Scottish Prison Service.

I refer members to paper 1, which is a note by the clerk, and I ask the cabinet secretary to make a short opening statement.

Michael Matheson (Cabinet Secretary for Justice)

Thank you, convener. Members may recall that, through a legislative consent motion in 2015, the Scottish Parliament agreed to two amendments to the United Kingdom’s Serious Crime Bill, allowing us to bring forward these regulations. The regulations build on the steps that we have already taken to tackle illicit mobile phone use in prisons. Parliament has already agreed changes to prison rules and made changes to the law to create offences relating to the introduction and possession of mobile phones or their component parts in prison without authorisation, and to allow us to interfere with the wireless spectrum and to pilot interference technology in two prisons to disrupt mobile phone use. I understand that members took the opportunity to learn more about the technology and its capabilities in private, and I am grateful to those who participated in that briefing.

I am clear that the unauthorised use of mobile phones in prison presents a range of serious risks to the security of prisons and to the safety of the public. They can be used to plan escape or indiscipline or to conduct serious organised crime, including drug imports and serious violence, from behind bars. The regulations will support our commitment to reducing the harm caused by serious organised crime, as part of Scotland’s serious organised crime strategy.

The challenges posed by unauthorised mobile phones and their component parts in prisons and young offenders institutions are not insignificant. Component parts, such as SIM cards, are easily concealed; we have been able to recover more than 1,500 mobile phones or component parts since 2013, but more will escape detection. We remain committed to minimising the number of mobile phones that enter prisons, to finding phones and, for users who have them, to blocking phones to make sure that they are not able to access networks. With the regulations, the courts will be able to set in place a process to remove particular phones from the networks. That will render them worthless and permanently stop prisoners using them to engage in criminal activity from prison. It will also help the police and prison authorities to maintain the security of our prisons and the safety of our communities.

The regulations will not prevent the introduction of illicit mobile phones or their component parts in prison. However, the successful disabling of a mobile phone will put it beyond use and will seriously disrupt the activities of individuals, including those who are involved in serious and organised crime who would seek to extend their criminal activities, threats or presence beyond the walls of our prisons.

I know that some members will be concerned about the potential impact of the regulations outside prisons, but I trust that members have been given the reassurances that they needed by the opportunities provided to them by my officials to understand the evidence that will be obtained in order to satisfy the courts that the mobile phones are in a prison.

The committee might also find it useful to know that the communication service providers have told us that they would welcome a clear legal instrument that establishes a route by which they would be compelled to act on these matters. The regulations will provide that clarity.

I am happy to take questions from members.

John Finnie (Highlands and Islands) (Green)

Thank you for your statement, cabinet secretary. I availed myself of the briefing last week, but took no reassurance from it. Simple questions that I asked when we discussed the issue previously and which I thought could have been addressed were not, and still have not been, addressed.

I will read from the explanatory note on regulation 3, which is a bit easier for the layperson to understand. It says:

“This is to cater for the situation whereby a communication device is disconnected in error and obviates the need for an individual or the applicant to apply to the sheriff for the order to be varied or discharged.”

In what circumstance would that happen?

Michael Matheson

If it was brought to the Prison Service’s attention that a phone that had been blocked was not a mobile phone that was in a prison establishment, it could be reconnected to the network. An order issued by the court for the communication service provider to block a mobile phone will contain a provision to allow the phone to be reconnected if an error is identified. Experience to date suggests that the likelihood of such an error happening is extremely rare, but there is provision to allow for reconnection to the network.

John Finnie

I am neither a lawyer nor a telecommunications expert; my job is to understand the legislation and to provide reassurance where that is required. No consultation is taking place on the regulations, and no equality, children’s or privacy impact assessments are being done. Why is that the case?

Michael Matheson

The reason for not requiring any further assessment is that the regulations relate to communication devices in the prison estate that are already illegal. In relation to privacy impact assessments, this is not about allowing access to communication between two individuals; rather, it is about communication traffic and the number of phones and SIM cards. Different processes are involved, as I am sure the member is aware. If it would be helpful, perhaps Ann Davies could say a wee bit more about the process that will happen when the orders go before a court and the provision that will be made in such an order to allow the order to be varied should further information become available subsequently.

John Finnie

My concern is about collateral intrusion and the potential impact of interference with health apps in particular. For instance, a Crohn’s disease health app that can help people remotely is being trialled. I did a quick search before the meeting and found a press release from the national health service entitled “Using mobile technology for safe and effective care of patients taking multiple medicines”. I am talking about things that are done remotely and polypharmacy issues. I asked the official at the briefing whether there had been discussions with the NHS about any potential impact. All I want is for someone to say that there is no impact or, if there is an impact, that it is understood and will be taken into consideration.

I want robust procedures to ensure that there is no abuse of mobile phones and that the law is enforced, but I do not want any suggestion of anyone being made vulnerable. In the past, I have given the example of Inverness prison where, as you know, cabinet secretary, dwelling houses are closer to the prison than you are to me just now. Can you provide any reassurance?

Michael Matheson

I can provide assurances from the experience that we have to date from pilots that we have been operating, which is that no issues have been identified of the nature that you have raised, and some of the establishments involved have residential properties very close by.

The experience that we have to date has been shared with our counterparts in England and Wales, who have been using similar technology, and they have not identified problems or concerns of the type that you have expressed. Further, the Scottish Prison Service has already engaged with the Scottish centre for telecare and telehealth on the issues, and will continue to do so.

Given the way in which the technology operates, it is worth keeping in mind that the vast majority of telecare is provided through landline-based systems, although I suspect that, as time goes by, a greater amount of it will be provided through mobile phone technology.

The data that is collected as part of the process of identifying a phone that is being used within the prison estate and the further measures that are then taken by the Prison Service along with Police Scotland and the service provider will allow a line that is being used to access telecare or telehealth services to be identified. I am confident that the process will allow such uses of a mobile network in close proximity to the prison estate to be identified.

It is also worth keeping in mind that the Prison Service deploys the technology in a way that minimises the risk of its reach going beyond the boundary of the prison walls. I do not want to go into too much detail because it is operationally sensitive—the way in which the data is gathered and verified is obviously sensitive. However, I assure you that those matters have been thought through. We will continue to engage with stakeholders such as the Scottish centre for telecare and telehealth to make sure that, in operating the technology, the Prison Service will be mindful of the needs of individuals who may live in close proximity to prisons and who wish to make use of telecare and telehealth provisions.

Thank you—that is very reassuring. It would have been more reassuring to have had that information last week, which would have saved me asking those questions.

Mary Fee (West Scotland) (Lab)

Good morning, cabinet secretary. I have a similar concern to that raised by John Finnie. At the briefing last week I raised the issue of emergency calls being made outside prison grounds. I have no issue at all with the need for the regulations, but I was quite concerned to hear that, if a call is made to the emergency services because of a threat to life or a health problem immediately outside the perimeter of the prison, that call could be barred. I want a similar reassurance to that given to John Finnie: that you will continue to monitor such issues and work with network providers and the emergency services to make sure that, if such calls are barred, they are reconnected as quickly as possible.

Michael Matheson

I cannot guarantee that the calls will be reconnected as quickly as possible because I am not a communication service provider. However, I can assure you that the process that the regulations provide for allows the Scottish Prison Service to apply for a court order for a mobile phone device to be blocked from the system, which renders it useless. There are a number of steps to go through in that process, so any blocking would not happen immediately.

The interference technology is already used at some of our prison establishments and we have not experienced the issue that you raise to date. There are ways in which we can continue to monitor the situation. The Prison Service is taking a precautionary approach to addressing such issues, if they arise. If such an incident came to the Prison Service’s attention, the service would need to look at the other measures that it could take to minimise any recurrence.

This is partly to do with how the technology is deployed. Again, these are operationally sensitive issues and I do not want to give too much detail, because that could be useful to people who wish to circumvent the system. The technology is continually developing, which will allow the Prison Service to continue to adapt its approach and to make sure that it is not causing undue risk to individuals who live in close proximity to our prison estate.

Thank you. That is helpful.

Liam Kerr

I support the measure, but I did not have the benefit of attending the briefing session the other week so I want you to help me to understand a bit more about it. Am I right that it does not require the finding of a unit and that if a signal is discovered the telecoms provider will then lock down that specific signal? If I am right about that, who monitors for the signal, and who has the task of taking the steps to shut it down—phoning the telecoms provider to say, “There’s the signal; lock it down”?

Michael Matheson

The Scottish Prison Service will use the interference technology that allows it to identify whether a mobile is being used in the prison estate and then to capture that data. The Prison Service will then work in partnership with Police Scotland to carry out some checks on that data before going to the communication service provider, which will carry out further checks. Once that process has been completed, the Prison Service can bring the information together and put it to a sheriff, who will determine whether an order should be issued. Once the order has been issued, the communication service provider has a legal responsibility to block that device, which will render it useless. There is a process that has to be gone through.


I do not want to go into any more detail around the information that the agencies get or take forward to identify a particular phone, but once the court has received that data, it will be in a position to make an informed decision about whether an order should be issued for the communication service provider to take action.

I should say that a memorandum of understanding has been agreed between the Scottish Government, Ofcom and the communication service providers on the implementation and operation of such technology. That has been in place since 2014. We have continued to refresh and develop that as the technology has developed.

Ofcom is responsible for the overall testing of how the Scottish Prison Service utilises the technology. Ofcom needs to be satisfied that the Prison Service is using it appropriately, with the proper safeguards in place. A number of mechanisms are involved, but the process involves several different parties before it gets to court, and it is for the court to consider the evidence before issuing an order.

Thank you for that answer.

The Convener

We move to the formal consideration of motion S5M-08386 on the regulations. The Delegated Powers and Law Reform Committee has considered the regulations and has no comment to make. There will be an opportunity for formal debate, if necessary.

Motion moved,

That the Justice Committee recommends that the Telecommunications Restriction Orders (Custodial Institutions) (Scotland) Regulations 2017 [draft] be approved.—[Michael Matheson]

Motion agreed to.

The Convener

That concludes consideration of regulations. The committee’s report will note and confirm the outcome of the debate. Are members content to delegate authority to me as convener to clear the final report?

Members indicated agreement.

The Convener

I thank the cabinet secretary and Ms Davies, as well as Mr O’Neill from the SPS, for attending the committee. The committee appreciated the full and helpful briefing that we received at Shotts prison and the private briefing that we had last week.

10:18 Meeting suspended.  

10:18 On resuming—  

Housing (Scotland) Act 2014 (Consequential Provisions) Order 2017 (SSI 2017/329)

The Convener

Agenda item 4 is consideration of three negative instruments. I refer members to the note by the clerk. The first instrument is the Housing (Scotland) Act 2014 (Consequential Provisions) Order 2017. If members have no comments, is the committee agreed that it does not wish to make any recommendations in relation to the order?

Members indicated agreement.

Rent Regulation and Assured Tenancies (Forms) (Scotland) Regulations 2017 (SSI 2017/349)

The Convener

The second instrument is the Rent Regulation and Assured Tenancies (Forms) (Scotland) Regulations 2017. If members have no comments, is the committee agreed that it does not wish to make any recommendations in relation to the regulations?

Members indicated agreement.

Pensions Appeal Tribunals (Scotland) (Amendment) Rules 2017 (SSI 2017/367)

The Convener

The third instrument is the Pensions Appeal Tribunals (Scotland) (Amendment) Rules 2017 (SSI 2017/367). If members have no comments, is the committee agreed that it does not wish to make any recommendations in relation to the instrument?

Members indicated agreement.

10:20 Meeting suspended.  

10:21 On resuming—