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HMP Woodhill

Volume 472: debated on Thursday 21 February 2008

With permission, Mr. Speaker, I should like to make a statement. As the House will recall, in his statement on 4 February 2008, my right hon. Friend the Justice Secretary announced that he and I had jointly agreed to ask the chief surveillance commissioner, Sir Christopher Rose, to conduct an inquiry to

“investigate the circumstances relating to the visits to Babar Ahmad at HMP Woodhill by Sadiq Khan MP in May 2005 and June 2006, to establish whether the visits were subject to any form of surveillance and if so by whose authority and with whose knowledge, and to report his findings to the Prime Minister, the Home Secretary and…the Justice Secretary.”—[Official Report, 4 February 2008; Vol. 471, c. 661.]

Sir Christopher has completed his inquiry and submitted his report, and I should like to thank him for his work and for the speed and efficiency with which he carried it out. Today, I am laying his report before the House; copies are available in the Vote Office.

There should be absolutely no doubt about the vital importance of covert surveillance techniques and the contribution they make to the protection of us all from terrorism and other serious crime. Covert surveillance is an essential tool for the police and security and intelligence agencies, and the ability to make use of it must be preserved. It is, however, right that its use is carefully regulated. The Regulation of Investigatory Powers Act 2000 mandates the form of authorisation and inspection for a range of investigatory powers, including two distinct types of surveillance: intrusive surveillance and directed surveillance.

Intrusive surveillance is defined as the covert acquisition of information on a residential premise or in a private vehicle. It requires the authorisation of a Secretary of State, or of a chief constable or equivalent, together with the approval of a surveillance commissioner. Directed surveillance is any other covert surveillance that does not constitute intrusive surveillance. Directed surveillance can be approved by senior officers in the police, but does not require, in any circumstances, authorisation by a Secretary of State.

The House will be aware that the 2000 Act also covers the interception of communications. That is a power that can only ever be used for limited purposes, and requires in each case the explicit prior authorisation of a Secretary of State. It is to interception, and to other surveillance requiring the approval of a Secretary of State, that the Wilson doctrine applies. Sir Christopher makes it clear that

“the surveillance which I am investigating does not appear to me to be within the Wilson Doctrine, because it does not give rise to interception as defined by the legislation, nor would it require authorisation by the Secretary of State.”

This is in line with the Government’s stated position on the doctrine. As the facts set out in Sir Christopher’s report make clear, it is not relevant in this case.

Let there be no doubt: all forms of covert surveillance are subject to a strict and rigorous statutory regime for authorisations; are conducted in accordance with the guidance set out in the statutory codes of practice; and are overseen by the various independent commissioners—normally recently retired members of the senior judiciary—established under the Act to ensure that those using the powers do so in compliance with the law and to the highest standards of integrity. There is an independent tribunal—the Investigatory Powers Tribunal—established to investigate and rule on any complaints.

I turn now to the details of Sir Christopher’s findings. As he reports, Babar Ahmad was arrested on an extradition warrant on 5 August 2004 and the following day remanded to HM Prison Woodhill. Sir Christopher found that warrants for intrusive surveillance for closed non-legal visits and for directed surveillance for open non-legal visits to Babar Ahmad were properly and correctly authorised in August and September 2004. The first intrusive surveillance authorisation was cancelled in December 2004. The second and relevant directed surveillance authorisation lasted until December 2006.

Sir Christopher has studied all the documentation on this authorisation and its reviews and renewals. He says of this that

“it suffices to say that the documentation shows that correct procedures were followed in accordance with the legislation and Codes of Practice were followed and proper considerations addressed.”

Sir Christopher records that my hon. Friend the Member for Tooting visited Babar Ahmad in prison on three occasions, in October 2004, in May 2005 and in June 2006. On the first occasion, before my hon. Friend was elected to this House, he visited as a solicitor, and Sir Christopher finds that his visit was not monitored in any way. My hon. Friend’s later two visits were as an approved visitor under the approved visitors scheme for category A prisoners. He made an application to be put on that scheme as a friend, and before his election to this House. However, Sir Christopher notes that after his election,

“he remained listed in the prison records as a friend.”

The two visits that occurred after my hon. Friend had become an MP were monitored by surveillance. It is absolutely clear from Sir Christopher’s report that my hon. Friend was not the target of that surveillance.

Sir Christopher finds that none of the senior officers responsible for authorising the surveillance knew at the time that the Sadiq Khan listed as a friend was a Member of Parliament. He finds that

“the fact that he is a Member of Parliament first became known to”—

those officers—

“as a result of press reports since mid-December 2007.”

He concludes however that

“two junior officers who applied for or reviewed authorisation and three who were directly involved in the monitoring knew that Mr Khan was a Member of Parliament, but they had no reason to regard this as significant.”

As I have just said, Sir Christopher concludes that the authorisations were in line with the legislation and codes of practice. In summary, Sir Christopher concludes:

“The conversations between Mr Khan and Babar Ahmad on 21 May 2005 and 24 June 2006 were monitored. The monitoring was carried out lawfully under the legislation. It was properly authorised and fully documented.”

There have been some concerns raised about the extent of surveillance in prisons. Sir Christopher comments on these. He notes that

“it is difficult and commonly impossible to prove a negative, but detailed enquiries on my behalf show no trace in recent years in prison records or anywhere else of any person known to be a Member of Parliament having been monitored during a prison visit.”

There have also been claims made about surveillance of legally privileged conversations between prisoners and solicitors. In his statement on 4 February, my right hon. Friend the Secretary of State for Justice said in respect of conversations between prisoners and their legal advisers:

“Those are all subject to explicit safeguards which generally prohibit such interception or surveillance”.—[Official Report, 4 February 2008; Vol. 471, c. 661.]

The statutory codes of practice governing this make it clear that

“In general, an application for surveillance which is likely to result in the acquisition of legally privileged information should only be made in exceptional and compelling circumstances.”

It is, though, important to note that the legislation does not absolutely forbid the monitoring of such conversations. Sir Christopher says on this point:

“I understand from further enquiries which I have made that, since 2005 at least, there have been no authorities for directed surveillance of legal visits in prisons in England and Wales to prisoners in custody in relation to terrorist or other criminal matters.”

I have asked the police service about the matter, and have been assured that that is in fact the case. Sir Christopher goes on to say:

“I know nothing to suggest that any unauthorised directed surveillance has taken place in relation to legal visits to such prisoners during the period to which my investigation relates.”

I hope that that deals clearly and fully with the concerns raised. If any hon. Member, or any member of the public, has a specific complaint to make, the proper thing to do is to refer it to the Investigatory Powers Tribunal, which this Government established for precisely that purpose.

I referred earlier to the Wilson doctrine. Although that does not apply in this case, Sir Christopher does suggest that there is some scope for confusion as to the correct interrelationship between the Wilson doctrine and the legislation. The Government do not propose to amend the Wilson doctrine, but accept that current codes of practice do not fully clarify the extent to which reviewing officers and authorising officers should pay special attention to conversations involving or potentially involving a Member of Parliament. I am therefore announcing today that the Government will review the statutory codes of practice, and in particular that we intend to clarify that, as regards covert surveillance, conversations between Members of Parliament doing their constituency business and their constituents should be considered as “confidential information”, and treated in the same way as other confidential information, such as conversations between a person and their lawyer or minister of religion. That will more clearly give such conversations additional protection.

As regards this particular case, Sir Christopher has found that the procedures for surveillance operations of this kind were properly and lawfully applied and that my hon. Friend was not the target of surveillance. Sir Christopher identifies a need to clarify the position with respect to MPs as set out in the code and I agree. The action that I have announced today will ensure that that happens.

May I first apologise on behalf of my right hon. Friend the Member for Haltemprice and Howden (David Davis), who is unavoidably absent from the House today? I thank the Home Secretary for an early sight of the statement and, if I may say so, for much of its content. I also wish to thank Sir Christopher Rose for having conducted the review expeditiously. Parts of what he has had to say in his report are undoubtedly reassuring in relation to the correct procedures having been followed in compliance with the Regulation of Investigatory Powers Act 2000.

There are, however, some issues in the report that should give the House considerable cause for concern. First, the Home Secretary may agree that it is unfortunate that in relation to the police officer referred to by Sir Christopher Rose as X, but widely known in the public domain as being Mr. Kearney, it was not possible for what he had to say to be tested by Sir Christopher, notwithstanding the fact that the allegations originated from him in the first place. As a result, parts of those allegations have not been fully tested by Sir Christopher, for understandable reasons relating to forthcoming trials. Were it to turn out that Mr. Kearney was right in his assertions that he had made repeated representations about the impropriety of bugging the conversations of the hon. Member for Tooting (Mr. Khan), and that the other police officers were wrong in their assertions, would the Home Secretary agree with me that that would put a different complexion on the nature of the investigation and inquiry?

Is not the nub of the matter—and the principal criticism that can be levied at the police—the fact that junior police officers who were carrying out the monitoring and review of the bugging became aware that the hon. Member for Tooting was an MP but decided that that had no bearing whatsoever on the nature of the intrusive surveillance that was taking place? It may well be that the authorisations made by the senior officers who knew nothing about that fact were perfectly valid in the context of the RIPA categorisation of how to go about bugging. However, I have to say to the Home Secretary that when one looks at the junior officers’ lack of response to the realisation that they were dealing with an MP coming on visits, it appears to show a woeful lack of understanding of what RIPA says.

Under section 28 of RIPA, such authorisations are allowed only in circumstances that involve national security or the prevention of crime—there are other categories—and one can understand why Babar Ahmad might have been bugged but, at the same time, the decision has to be proportionate. Unless it was suggested that the hon. Member for Tooting was in the course of his visits going to engage in a criminal conversation with Mr. Ahmad or in some conspiracy with him that would seek to undermine the criminal justice system in this country, it ought to have followed logically that those police officers would have been alerted to the fact that surveillance ought not to take place.

Are not wider issues raised about the extent to which we now have a surveillance society on such a level that a large number of intrusive investigations are being authorised by police officers at a senior level but are being carried out and monitored by police officers at a junior level? The result of that must be to cause anxiety that there will be instances when individuals whose conversations ought not to be monitored, for the very good public policy reasons outlined by the Home Secretary, will be monitored. For those reasons, I welcome the Home Secretary’s announcement of a review of the subject. I urge her to widen it to consider more generally the extent to which those areas of surveillance that fall outside the scope of the Secretary of State’s warrant, whether they relate to the bugging of an MP’s conversation when they visit someone in prison or elsewhere or to legal advisers and their conversations with individuals, should be looked at afresh.

The public are entitled to reassurance that we have not in fact created a system whereby there are substantial loopholes that allow junior police officers, through ignorance, inadvertence or possibly malice, simply to decide that they want to continue to listen to conversations when all the pointers mean that those conversations should remain confidential and, in some cases, privileged.

I thank the hon. Gentleman for his measured response to my statement and to Sir Christopher’s report. In relation to the specific points that he raised, Sir Christopher outlines at some length in paragraph 10 the inquiries that he undertook and what he learned about the meetings that the officer he identified as X had with a variety of people, as well as about the opportunities that he had during the course of those meetings. At the end of paragraph 10, Sir Christopher explains why it was appropriate to choose not to interview X further.

The hon. Gentleman makes a reasonable point about the expectation that people might have had about the way the monitoring of a conversation that, as Sir Christopher identified, clearly involved a Member of Parliament on constituency business would be treated. As I said in my statement, the current codes and law make it clear that those police officers did not act outside the current codes and the law. However, it is precisely in order to ensure that there is clear guidance about the way in which an MP’s conversations with a constituent should be treated that I propose the changes to the codes that I outlined in my statement. I agree with the hon. Gentleman that that needs clarification, and that is what we will provide.

I do not believe that the hon. Gentleman was making this point, but I want to reiterate clearly for the benefit of the House and the record the fact that there is absolutely no suggestion that my hon. Friend the Member for Tooting was the target of the surveillance or that there was any suspicion at all that my hon. Friend should have been the target of the surveillance. The report makes it absolutely clear, for example, that reports of the monitoring were filed and that it was decided to take no further action. My hon. Friend was not the target, and nor should there be any suggestion that any cloud rests over him. Sir Christopher Rose is absolutely clear on that point, and we should all be clear about it, too.

I thank the Home Secretary for her statement, for the speed with which the Government set up the inquiry and for the conclusions that have been put before the House, which, of course, I accept. I welcome the review that she proposes. Will she give us a timetable for when that review will be completed and tell us who will conduct it? On the subject of my hon. Friend the Member for Tooting (Mr. Khan), will she confirm that the report makes it very clear that when he was visited on 8 March 2005 by the pre-assessment police officer he was affable, forthcoming and fully co-operative and that all the visits he made subsequent to that were as a Member of Parliament? Will he be getting a copy of either the tapes or the transcripts?

On my right hon. Friend’s first point, I am proposing not a review but action to amend the codes. That amendment will require detailed consultation with the relevant public authorities and, of course, it will also require public consultation and the opportunity for debate in this House. I intend that all that work will be completed within this calendar year.

On my right hon. Friend’s point about our hon. Friend the Member for Tooting, it might help my right hon. Friend if I read from paragraph 22 of Sir Christopher Rose’s report, which concerns the visit that was made by a detective constable from the Metropolitan police special branch to complete an inquiry questionnaire for the benefit of the prison and a report for the police at the point at which my hon. Friend was applying to become an approved visitor, before he was a Member of Parliament. It states:

“It is apparent from these documents that Mr Khan told the officer that he had given up his full-time job as a human rights lawyer with his own company to become a prospective Labour Parliamentary candidate for Tooting.”

It goes on to state:

“The officer commented in his report that Mr Khan was very affable and forthcoming.”

I think that that makes it clear that my hon. Friend fulfilled his responsibilities.

I, too, start by thanking the Secretary of State for an advance copy of the statement. Sir Christopher Rose’s remit was very limited:

“To investigate the circumstances relating to the visits to Babar Ahmad”.

He does, however, make comments on a wider range of points and I would like to touch on them briefly first.

First, on the Wilson doctrine, I acknowledge what the Secretary of State said about its not applying in this case, but I welcome the fact that the codes of practice will be reviewed. Clearly, we need that clarification as the chief surveillance commissioner has made it clear that in his view it is unsustainable in its present form.

The report has been turned around extremely rapidly, within only a couple of weeks, yet during that time Sir Christopher managed to assess that routine bugging has not taken place. Some Members will find it astonishing to have achieved that within those time scales, so I hope that the Home Secretary will consider, as the Law Society suggested, that it may be appropriate to hold an inquiry into whether much larger scale bugging is indeed taking place.

On the hon. Member for Tooting (Mr. Khan), and who knew what and when, there is useful clarification. The Home Secretary has said on a number of occasions that the hon. Gentleman was not the target of surveillance, but Sir Christopher Rose’s report says that junior officers were aware that Mr. Babar Ahmad’s prison friend was a Member of Parliament, so could the Home Secretary confirm whether additional guidance will be given to officers in that respect and how that guidance, once implemented, will be monitored?

The astonishingly rapid turnaround of the report on the bugging of conversations between the hon. Member for Tooting and Mr. Ahmad addresses some of the concerns raised by the incident but leaves up in the air the whole question of whether we are moving towards an ever more intrusive surveillance society in which nothing is private and everything is analysed, recorded, logged and stored. That is a question the Liberal Democrats will pursue relentlessly.

In relation to the hon. Gentleman’s penultimate point, it is precisely because I feel that the guidance, and in fact the statutory codes of practice, relating to RIPA should clarify the position with respect to those who review and monitor and authorise any conversations that might involve a constituency MP on constituency business that I have announced and propose today that we should amend the codes.

On the hon. Gentleman’s first point, about the Wilson doctrine, he referred to the view of the then interception of communications commissioner that there was potentially no longer a place for the doctrine. That point was fully responded to in a written ministerial statement on 30 March 2006 by the previous Prime Minister, who concluded at that time that the Wilson doctrine should be maintained. That position was subsequently confirmed by my right hon. Friend the Prime Minister.

Sometimes, I feel we cannot win. I have read the transcript of the statement made by my right hon. Friend the Secretary of State for Justice, when Members urged speed on him, me and Sir Christopher Rose. Sir Christopher Rose carried out the inquiry speedily and effectively. In fact, he has slightly broadened the terms of reference in order precisely to take in the concerns about legal privilege that have been outlined and, as I have noted today, his report was clear. He said:

“I know nothing to suggest that any unauthorised directed surveillance has taken place in relation to legal visits to such prisoners during the period to which my investigation relates.”

Paragraph 26 also states:

“Although this is not within my Terms of Reference, I understand from further enquiries which I have made that, since 2005 at least, there have been no authorities for directed surveillance of legal visits in prisons in England and Wales to prisoners in custody in relation to terrorist or other criminal matters.”

I reiterate what I said in my statement: the Government set up the Investigatory Powers Tribunal precisely to investigate concerns about the way investigatory powers were being used, and I recommend any Member or member of the public with concerns about the use of those powers to refer them to the tribunal.

I commend the Home Secretary for a speedy response to the case and an appropriate and measured reply. I listened carefully to what she said about the Wilson doctrine, but of course it was established at a time when we did not have directly elected Members of the European Parliament or of the Scottish Executive and Welsh Assembly. When we review the issue, will my right hon. Friend clarify whether any of those privileges apply to those office holders?

It has subsequently been confirmed that the Wilson doctrine does not apply to those office holders. However, I confirm that it is my intention that the work to extend the scope of the definition of confidential information in the codes of practice will explicitly include constituency work by MPs, and that it will extend to Members of the European Parliament and of the Welsh devolved Administration. Before anybody asks, extension of that kind in Scotland and Northern Ireland would be a matter for their devolved Administrations to take forward in parallel.

My constituent, the retired detective referred to as X, is surprised that Sir Christopher Rose did not ask him to co-operate. He, above all, wants a fair trial; he offered his co-operation and does not know why it was not sought. Both he and the journalist with whom he is charged with aiding and abetting an offence in public office are concerned for their safety and, because of the range of activities at Woodhill prison of which they are aware, they are also concerned that there may be an attempt to silence them. Will the Home Secretary comment on that aspect?

I am sure the hon. Gentleman will realise that I shall not comment in detail on an ongoing court case. Sir Christopher Rose’s report, as I have already pointed out, makes clear in paragraph 10 the process he undertook with respect to the hon. Gentleman’s constituent.

When the issue was first raised in the House, I expressed my concern, as the MP representing Woodhill and many of the staff who work there, about the uncertainty that might be caused if the inquiry dragged on, so I am extremely pleased that Sir Christopher Rose has so effectively and thoroughly completed the inquiry in a short time. I urge the Home Secretary to resist strenuously any spurious Mohammed al-Fayed-type allegations that may cause the case to be dragged out endlessly by all sorts of conspiracy theories. Will she clarify whether the new guidelines will refer to prison staff as well as police officers and others and, if so, will she make sure that they are as clear as possible so that prison staff can concentrate on their important job of protecting us all and are not worried by unclear guidelines about what they may or may not do?

Yes, I can confirm to my hon. Friend that the statutory code of practice that will relate to covert surveillance will include all those involved in the review, monitoring or authorisation of covert surveillance. I agree that it is important that the review was carried out quickly, not least for those who are clearly working hard in Her Majesty’s Prison Woodhill.

Does the Home Secretary agree that the Wilson doctrine is often misunderstood as though it meant that a Member of Parliament is totally immune from the interception of communications even if engaged in serious crime or aiding and abetting terrorism? What the doctrine actually means is that such an exceptional interception would require the highest level of authority and would subsequently have to be disclosed to the House of Commons. Is that not a good principle for the protection of constituents and others, and one that should rightly be extended to directed surveillance?

The right hon. Gentleman is right about the amendment I propose to the statutory codes of practice with respect to covert surveillance. The law already says, with respect to confidential information, that there is not a blanket prohibition on the monitoring of a conversation that might involve confidential information. As he rightly says, any surveillance would need to be in exceptional and compelling circumstances and would, therefore, need much higher levels of authorisation.

My right hon. Friend has given some important and welcome reassurances on the surveillance of legally privileged conversations, but there have been widespread media speculations about the recording of lawyers’ conversations, and attempts to found those speculations have been heard in the House today. Will she confirm that it is not the case that such conversations are recorded?

As I said in my statement, in paragraph 26 of his report, Sir Christopher Rose finds clearly from his further inquiries that

“there have been no authorities for directed surveillance of legal visits in prisons in England and Wales”.

Furthermore, he says,

“I know nothing to suggest that any unauthorised directed surveillance has taken place in relation to legal visits”.

It is clearly important that strong regulation is in place in both the Regulation of Investigatory Powers Act and the codes of practice. I reiterate that rather than talking to newspapers, it is probably more useful for people with concerns about such issues to take them up with the Investigatory Powers Tribunal, which the Government set up precisely in order to ensure confidence about how the powers are used.

While the Home Secretary is undoubtedly right that the Wilson doctrine was not violated in the case that we are discussing, has it not shown that there is an illogicality in the fact that such an event is not covered by the Wilson doctrine, probably quite inadvertently? As the right hon. Member for Berwick-upon-Tweed (Mr. Beith) just said, it is quite clear that MPs should not and must not be immune from any form of surveillance if they are suspected of serious crime and such surveillance is properly warranted. In making the changes to procedure that she has announced, will the Home Secretary make it the case that the Wilson doctrine will apply to surveillance on Members of Parliament by the police rather than the security services, so that eventually, at a time when national security allows, it can be reported to the House?

It is interesting that hon. Members have suggested at points in the past that the Wilson doctrine is limited in its application. It nevertheless remains in place, and its scope is as I described in my statement. Arguably, what I am proposing in terms of statutory codes of practice open to public debate and scrutiny in Parliament will put the issue of covert surveillance on a clear statutory basis, which will provide the sort of clarification for which the right hon. Gentleman asks.

Before I came to Parliament, I assumed that the Wilson doctrine meant that all Members who took the Oath of office were free from surveillance. That is clearly not the case, although there may be a high hurdle to overcome. Will the Home Secretary tell us how many MPs have suffered surveillance in the past 10 years?

No. I have been clear about how the Wilson doctrine applies and about the statutory code of practice.

During her statement, the Home Secretary said that “none of the senior officers responsible for authorising the surveillance knew at the time that the Sadiq Khan listed as a friend was a Member of Parliament.” Given the serious nature of the issues involved, including national security, and the fact that being a Member of Parliament is not notoriously a particularly covert occupation, is that not in itself a cause for genuine concern?

The hon. Gentleman can interpret that however he wants, but Sir Christopher Rose found and is clear that those senior police officers did not know at the point when they authorised the surveillance that my hon. Friend the Member for Tooting was a Member of Parliament.

Given that foreign intelligence agencies fall outside the Wilson doctrine and existing and future codes of conduct, will the Home Secretary give the House an assurance that during the past 10 years, no British Minister, especially in the Ministry of Defence, has been bugged by a foreign intelligence agency—particularly the French intelligence agency—in relation to Ministry of Defence procurement contracts?

Whatever the results of the inquiry, and whether or not the hon. Member for Tooting (Mr. Khan) was targeted by the operation, is not the alarming conclusion to draw from the report that under the existing arrangements, it was at least possible for a Member of Parliament to be targeted? In the changes that the Home Secretary is to make to the codes of practice, should it not be a principle that, in law, it should not be possible for the police to use their powers in a political way, to gather information on politicians whom they might consider to be their political opponents?

Following the question put by my hon. Friend the Member for Wellingborough (Mr. Bone), will the Home Secretary be a bit more specific about whether in the past 10 years any other Member of Parliament has been bugged, either because they were the target of the bugging, or because someone else was the target, but they happened to be part of the conversation?

I think that I was very clear that there is no evidence that either the strong regulation that is in place, or the principle of the Wilson doctrine, has been breached.