Justice Committee

Meeting date: Tuesday, October 30, 2012

Official Report 569KB pdf

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Prisons (Interference with Wireless Telegraphy) Bill

The next item of business is consideration of a legislative consent memorandum on United Kingdom legislation. For this evidence session on the Prisons (Interference with Wireless Telegraphy) Bill, we have received a response from the Cabinet Secretary for Justice to our initial observations on the LCM and a number of written submissions that we requested at an earlier meeting. All are included in an annex to paper J/S4/12/30/1.

I welcome to the meeting Roseanna Cunningham, Minister for Community Safety and Legal Affairs; and Brian Ironside, assistant director of national operations, and Jim O’Neill, senior legal policy officer, both of whom are from the Scottish Prison Service. I invite the minister to make an opening statement.

Thank you for this opportunity to discuss the LCM to the Prisons (Interference with Wireless Telegraphy) Bill, which was introduced in the House of Commons on 20 June 2012 and provides powers to tackle the illicit use of electronic communications devices, including mobile phones, in prisons. The bill’s powers will help to deal with the challenging problem of illicit mobile phone use and support our commitment to tackling serious and organised crime.

The bill contains only five clauses, all of which will apply to Scotland. The three substantive clauses provide for the authorisation of interference with wireless telegraphy for the purpose of preventing, detecting or investigating the use of electronic communications devices, including mobile phones, within prisons and similar institutions; safeguards that apply to the granting of authorisations; and the retention and disclosure of information obtained in accordance with an authorisation.

Clause 1 confers functions on the Scottish ministers to authorise governors and directors of relevant institutions to interfere with wireless telegraphy.

Clause 2 provides that the Scottish ministers must be satisfied that the equipment that will be used as a result of the authorisation is fit for purpose before granting the authorisation and that, where an authorisation is granted, the Scottish ministers must inform the Office of Communications. It also provides that the Scottish ministers must give certain directions to the governor or director of a prison or young offenders institution who is authorised to interfere with wireless telegraphy. The bill sets out what matters such directions are to cover, which include the requirements to provide information to Ofcom; the circumstances in which the use of the equipment under the authorisation must be modified or discontinued; and, in particular, the aim of ensuring that the authorised interference will not result in disproportionate interference outside the relevant institution.

Clause 3 provides for the retention and disclosure of information obtained in accordance with an authorisation. This information is termed traffic data and includes data that is comprised in, attached to or logically associated with an electronic communication. Such data can lead to the identification of the person using the phone, the phone type, the location to or from which the call has been made, and the time and duration of the call, but it does not include the content of the communication. The clause also provides important safeguards in relation to the retention and disclosure of information obtained, such as the requirement that such information be destroyed no later than three months after it was obtained unless the governor or director of the prison or young offenders institution has authorised its retention.

Although wireless telegraphy is a reserved matter under paragraph C10 of schedule 5 to the Scotland Act 1998, the management of prisons is devolved. As the bill confers functions on the Scottish ministers, it is a relevant bill as defined in rule 9B.1 of standing orders.

Other legislative mechanisms for the Scottish Parliament to achieve the provisions in this UK bill have been considered, namely a Scottish bill with a corresponding order made under section 104 of the 1998 act. Although that route would be possible, it would be more complex, take more time, and involve substantially more resource. As the UK bill has already been introduced, the legislative consent motion route offers a more resource-efficient and timely legislative vehicle by which to confer the required powers. We are committed to minimising the number of phones that enter prisons, and to finding phones that have got in. The powers in the bill will allow us to disrupt those phones that we have yet to find and prevent prisoners from engaging in further criminal activities from prison. That will help the police and prison authorities to maintain the security of our prisons and communities.

We recognise that the legislation is only the first step. Technology evolves constantly and we will have to evolve to keep up with it. I ask the committee to support the legislative consent motion that has been laid before it, and my officials and I are happy to answer questions.

Thank you. Do members have any questions?

Thank you for your opening statement, minister. Can you explain precisely what is new about the bill?

The bill is going through the House of Commons. Pilot schemes are taking place south of the border only, but concerns have been raised about the fact that there is no legislative power to conduct the proposed interference. As I understand it, no challenges have been made to any of the pilots south of the border, but clearly the Westminster Government and officials feel that it is sensible to ensure that the proper legislative consent is in place to allow the activity to take place. We are talking about technological interference with signals, and the legal ability to do so within prisons is what is new.

Minister, you mentioned pilot schemes. Our committee papers make lots of references to trials and I appreciate that this technology is developing very quickly. I should say at the outset that I fully support the legislation and the need for it, but I am concerned about proportionality. The only prison in the area that I represent is in the middle of an urban area, and we have heard from Ofcom about the potential impact on other radio services. Is anyone able to say whether services such as telehealth and telecare will be interfered with if the legislation is put in place?

That is all part of getting the authorisation to do what we seek to do. We have to be proportionate and, while I would not want to prejudge any particular decision that might be made, if serious interference was likely it would need to be taken into account before authorisation was given.

Jim O’Neill might want to add a comment.

The minister is right: the bill provides that it will be lawful to use the power only within a prison, and a key part of exercising the power will be to ensure that the equipment is rigorously tested to ensure that there is no interference in areas outwith the prisons.

On proportionality, the Information Commissioner’s Office submission says that

“the ICO strongly recommends a full privacy impact assessment to be undertaken prior to the implementation by the Prison Service, focusing particularly on human rights legislation and the risks to the privacy of non-prisoners.”

Can an assurance be given that that assessment will be undertaken?

Some of what you are talking about will relate to the fact that the bill is a Westminster bill, not a Scottish bill. We will watch carefully for anything that the Westminster Government undertakes, although I cannot answer for what Westminster officials might choose to do.

We will want to be sure that any decision takes proportionality into account. It is the primary purpose of the legislation to blanket the prison, and I understand the point that is being made about the proximity of some prisons to built-up areas and the necessity of ensuring that any technology that is put in place does not blanket an area wider than the prison. We understand that, with the currently available technology, it is possible to minimise the effect. Because the technology evolves so quickly, what is not possible now might be possible in six months or a year, so trials with the current technology could be out of date in six months or a year. The bill is simply about giving us the power to take such measures; it is not about mandating them to happen in every circumstance.

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It would be important to have public support for such measures, which might require a consultation process. There has not been a consultation process to date. Would there be consultation with communities that are adjacent to urban prisons, where such measures could be a challenge?

I do not think that there is an intention at present to consult formally. I do not know whether there was prior formal consultation on the Westminster bill, but any intention to carry out interference would have to involve local consultation, which is more likely to be useful.

I have a couple of questions. Where conversations and telephone communications are intercepted, there is a commissioner who monitors the process and reports annually on whether all is well or otherwise, as they see fit. There is mention of connecting with Ofcom. Is it the intention that there would be a system of oversight and some form of independent review to ensure that the powers are being properly used and reported on?

There would be a concern if we actually intercepted conversation, but that is not the Scottish Prison Service’s intention. We are not seeking legal intercept; we merely seek the power to block phones from connecting to the network in the first instance, so the issue that Mr Pearson raises is not a consideration.

Might there not be value in having some kind of oversight to ensure that there is consistency of approach and that proportionality is adhered to?

The key will be our working relationship and memorandum of understanding with Ofcom, which has responsibility for regulation of the electromagnetic spectrum. We will enter into an agreed memorandum of understanding with Ofcom and the Mobile Broadband Group network operators. That will provide oversight, communication and sharing of information to ensure that any interference is proportionate.

Ofcom is the appropriate regulatory body—there is no doubt about that. However, that does not prevent Her Majesty’s chief inspector of prisons, for example, from looking at the issue and reporting on it in his inspections. In the first instance, we would probably tend to rely on that activity.

As I said, interference will not necessarily happen in every single prison and young offenders institution. At this stage, I do not know what the likely take-up will be—that will obviously be a matter for individual governors and institutions. The chief inspector of prisons can provide for ministers an independent and impartial review of prisons, and such interference would be one of the things that he or she would consider.

I am grateful for that comment, because it is not made in the legislative consent memorandum. There is a need for someone who is outwith the professional bodies to have oversight of how the measure operates.

I turn to my second point. The memorandum states that there are “no financial obligations” on the public purse but, in the background papers, we are told that the system is

“more expensive to purchase and operate”.

Given the current challenge to budgets in the service, can we be assured that the lack of finance will not prevent the appropriate use of the mechanisms and systems? Is the Scottish Prison Service worried about whether it can afford to use such systems, even if it has the power to do so?

Brian Ironside might be best placed to answer that, but we indicate that it would be for the Scottish Prison Service and for particular institutions to make a decision about what they consider to be the benefits or otherwise of such systems, which they would do in the context of their existing budgets. Mr Ironside might have something to add.

I have little to add to what the minister said. It is a chicken-and-egg scenario: without the powers, we simply cannot investigate the benefits that the service could glean from the introduction of such technology.

Are the additional expenses that are hinted at in the papers substantial, or are they manageable?

They are manageable at this level.

How will the data be held and how will access to the data be logged?

I do not think that we can provide a clear answer on that, because it depends on the technology that is deployed. In general, two types of technology can be deployed: simple blocking technology that does not gather any data, and technology that is covered by the colloquial term “grabbers”, which intercept the signal. How the data will be held will depend on the technology that is deployed. As we in Scotland are in the early stages of the process, we do not have a firm idea of what the technology will be able to do as far as data retention is concerned.

It might be one of those areas that changes quite quickly as technology changes. We all know the speed with which that happens, so it will probably need to be an area of constant review. As we move forward, it is likely that there will be improvements in the technology, which will make it possible to glean more information. At this point, it would be a bit dangerous to specify what will be ingathered and how it will be held, because that information could be out of date in six months’ time—and it would almost certainly be out of date in a year or two. Therefore, things have to remain relatively open at this stage.

What I was looking for was a commitment that the data would be held securely and that it would be properly monitored. Often, such matters are not considered ahead of time and it is only with hindsight that lessons are learned. It is important that we make up systems prior to implementation.

My final question is on the success of the prison watch scheme. Why is it deemed to have been successful? What did it achieve?

At the moment, it is based at HMP Edinburgh. The scheme, which was launched in February 2011, is basically a crime prevention initiative that is similar to neighbourhood watch, but the neighbourhoods involved happen to be the neighbourhoods around prisons. It allows members of the public to report any suspicious or criminal activity, and enables prompt action to be taken. It works alongside various other strategies—it is a partnership scheme.

The results of the pilot at Edinburgh prison have been encouraging. Following its implementation, along with other measures, there has been a reduction in, for example, the number of mobile phones—which we have just been discussing—or component parts of mobile phones found at HMP Edinburgh. The technology that we are talking about in the LCM allows us to tackle those mobile phones that have yet to be found.

The scheme’s success is such that, as well as operating in HMP Edinburgh, it is now running at Greenock, Polmont, Peterhead and Aberdeen prisons. It is intended that it will be rolled out to all prisons by spring 2013, as the early success that has been measured suggests that it is worth doing around all our prisons. It simply involves mobilising the ability of ordinary people in communities around prisons to report any suspicious activity in and around those prisons. If the roll-out is successful, it will provide more useful information that we hope will give us better control over what happens in prisons.

Thank you.

Mr O’Neill talked about “grabbers”, which is an interesting word. I saw that the minister was quite taken with it. Can that technology track a mobile phone to its individual source?

It does not identify the individual. What it identifies is data or information that is attached to the phone, such as the SIM card reference number, for want of a better description, and the date and time of calls. That is the kind of data that can be captured.

So it might be able to trace whoever is using or trying to use—

Not immediately, but eventually. It would be the starting point for further investigation.

Thank you.

Good morning, minister. My understanding is that it was a private member’s bill at Westminster that kick-started this. Our paper states that, because there is already legislation on the matter, it was deemed that no public consultation was necessary. Is that correct?

Colleagues south of the border did not consider public consultation to be necessary, simply because it is already an offence to have a mobile phone in a prison. They saw the bill as an extension of tackling illicit mobile phone use in prisons.

Another issue that I want to raise is the cost to the Prison Service. I know that others have raised that, too. Our paper states that the cost of the equipment can be up to £1 million at the top of the range, but that it does not need to be that much. If the cost were £1 million, would it be affordable for all prisons, or for certain prisons?

Each institution will have to make its own decision about whether it considers use of the equipment appropriate. I would be astonished if every single institution immediately wanted to go straight to the top of the range. I would be surprised about that, as I suspect most people in the Prison Service would be surprised. There will perhaps be prisons at which that is considered the most appropriate thing to do and others that will not consider that they need anything like that.

It is difficult to answer the question because demand will be driven by the institutions. They will have to take into account all the relevant factors, including cost, when they reach their decisions.

I have a question about safeguards for members of the public. The use of this technology is actually a moveable feast; this is just the start, and it could move on. I have concerns about interference outwith prisons. Barlinnie in Glasgow is practically set in the middle of a housing scheme. I am concerned about the collection of data, which will be saved for three months. You said that the equipment will only collect data from SIM cards. If data is collected that identifies a member of the public, will they be able to get that data? Will they know that you have it? What will happen after the three months?

The key is to try to prevent that from happening. It is important that any grabber technology is rigorously tested to ensure that we contain leakage. However, some factors are outwith our control. For example, if a mobile network operator erects a mast nearby, it might push the interference outwith the boundary.

Colleagues down south, in their trials or pilots to date, have tested the interference on a yearly basis to ensure that any leakage is contained within the prison boundary or as near to it as possible. In turn, Ofcom, as the regulator, and the mobile network operators have been monitoring the situation down south, and it is encouraging that they have had no complaints from members of the public about any impact outside the prison walls.

Thank you, convener. I was going to ask as a follow-up whether there have been any complaints.

It is a fair point—it is a “what if” question.

Absolutely.

I do not know whether you have fully answered it. What if somebody finds that their phone has been blocked?

We cannot say that that will never happen, because there are factors that are in some respects outwith our control. The key for us is that the bill provides that the power may be exercised only within the prison. Might somebody’s data be captured as they walk past a prison—say, an open prison in the middle of a rural area that they happen to be walking through? That might well happen. The key then will be to sift out that data, get rid of it and destroy it, because it is not necessary.

We may want to follow that up in our consideration.

I am aware that the minister has a commitment elsewhere, so we have time for a brief last question.

Who, if anyone, will be charged with keeping a register of authorisations?

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The authorisation will come from the Scottish Prison Service headquarters.

It will come through the SPS and the cabinet secretary.

The arrangement will be very similar to that which is in place under the Regulation of Investigatory Powers (Scotland) Act 2000. We will authorise our own activity. The Scottish Prison Service will keep the central register, which will be available for scrutiny by the office of the surveillance commissioners, as is currently the case.

I thank the minister and her officials for attending. She may wish to move to her next committee.

The Public Petitions Committee will be grateful for that.

I am sure that you are delighted to go.

The committee is required to report to the Parliament on the legislative consent memorandum. We have raised some important issues—such as the catchment of calls that may not be considered and what is done with data—which we will consider. Given the tight timescale, I will ask the clerks to circulate a draft report this afternoon, if members are happy to sign that off. Is that fine with everyone?

Members indicated agreement.

Thank you very much.