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

Debate between Lord Kennedy of Southwark and Lord Rowlands

Tuesday 12th July 2016 Grand Committee

[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.