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Prisons: Woodhill

Volume 698: debated on Monday 4 February 2008

My Lords, with the leave of the House, I shall repeat a Statement made in another place by my right honourable friend the Lord Chancellor and Secretary of State for Justice. The Statement is as follows:

“With permission, Mr Speaker, I should like to make a Statement.

“As the House will be aware, there appeared in yesterday’s Sunday Times allegations that conversations between my honourable friend for Tooting and a constituent of his, Mr Barbar Ahmed, detained in prison on an extradition warrant, had been subject to covert recording when my honourable friend visited Mr Ahmed on two occasions, in 2005 and 2006, at Her Majesty’s Prison Woodhill.

“I was made aware of the burden of these allegations on Saturday afternoon. My right honourable friend the Home Secretary and I discussed the matter and we agreed that an immediate inquiry should be established. In a statement to the Sunday Times issued on my behalf early on Saturday evening I announced this, and expressed my concerns about the allegations, if true.

“It may assist the House if I now give some detail of the differing ways in which the statutory authorisation regimes for intercept and for intrusive surveillance operate.

“Just before I do so, let me underline, from my experience as a Minister directly involved in these matters over many years, that no authorisations are granted unless by law they are necessary for the detection or prevention of crime, or the protection of national security, or for related matters, are proportionate, and that the information concerned cannot be obtained by other means.

“Any authorisation for the interception of telephone calls and other public telecommunications requires a warrant personally signed by the relevant Secretary of State—usually the Home Secretary in respect of the police, Security Service and other domestic law enforcement agencies; and the Foreign Secretary in respect of Secret Intelligence Service and GCHQ. Such a Secretary of State warrant is also required for surveillance operations—including eavesdropping—by the three intelligence agencies. The telecommunications regime is overseen by the Interception of Communications Commissioner, normally a recently retired member of the senior judiciary, currently Sir Paul Kennedy. This is laid down in the Regulation of Investigatory Powers Act 2000. Surveillance under this regime is overseen by the Intelligence Services Commissioner under the Intelligence Services Act 1994.

“Under the 2000 Act, the regime in respect of intrusive surveillance operations by the police and other domestic law enforcement agencies is different. Under these provisions, which originated with the 1997 Police Act, passed in the closing months of the previous Administration, with our support, there is a hierarchy of approvals depending on the nature of the surveillance concerned. In the case of eavesdropping operations, authorisation is required of a chief officer of police or officer of equivalent rank in the Metropolitan Police Service. This regime is supervised by the Chief Surveillance Commissioner, currently Sir Christopher Rose, formerly a senior judge of the Court of Appeal.

“Ministers play no part in these authorisations. Where any operation involves the use of HM Prison Service premises, neither the service, nor the Minister concerned, are asked for any additional authorisation for the operation. What the service is asked for, on the basis of a brief summary, is permission to conduct the operation and that judgment, by the service, is based on whether any order or control issues arise, and not on the merit of the authorisation itself.

“The Sunday Times story related to claims in respect of an alleged operation sought by and authorised by the police. It follows that this matter falls within the regime supervised by the chief surveillance commissioner. I can now announce to the House that with the agreement of my right honourable friend, the Home Secretary, the Chief Surveillance Commissioner, Sir Christopher Rose, has agreed to conduct an inquiry with the following terms of reference. To investigate the circumstances relating to the visits to Barbar Ahmed at HM Prison 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.

“This inquiry will be fact-finding. Sir Christopher has told me that his aim is to conduct the inquiry as quickly as possible, but consistent with the thoroughness required. He will do his best to complete his task within two weeks. A further Statement will be made to the House once we have received and have been able to consider Sir Christopher’s findings.

“It may also assist the House if I mention two other matters. The first is the Wilson doctrine. This, as the House knows, was originally promulgated by the then Prime Minister, the late Harold Wilson, in 1966. He said that he had given instructions that there was to be no tapping of the telephones of Members of Parliament and that, if there were a development which required a change of policy, he would, at a moment that was compatible with the security of the country, make a statement about it.

“The terms of this Statement have been endorsed by successive Prime Ministers, including Tony Blair in a Written Ministerial Statement to this House on 30 March 2006. In a Written Answer in September 2007, my right honourable friend the Prime Minister said:

“The Wilson doctrine applies to all forms of interception that are subject to authorisation by Secretary of State warrant”.—[Official Report, Commons, 12/9/07; col. WA 2103.]

“Secondly, the question has been raised of interception or surveillance of conversations with any person, whether a suspect, a convicted criminal or otherwise, by their legal adviser. These are all subject to explicit safeguards which generally prohibit such interception or surveillance”.

My Lords, that concludes the Statement.

My Lords, I thank the Minister for coming to the House rapidly and repeating the Statement made in the other place. Yesterday, the Home Secretary telephoned the shadow Home Secretary to say that the letter that he had sent to No. 10, could not be found. We accept that.

The Minister confirmed that the Wilson doctrine remains in force and that there have been no changes in process or practice, given the duty under the doctrine to notify the House of any such changes. Will the Minister confirm that the doctrine applies equally to your Lordships’ House?

He also confirmed that this alleged action was in breach of the spirit of the doctrine and announced an inquiry, which we welcome. On this side of the House, we also welcome the fact that the inquiry has come and will be conducted speedily. We also hope that it will be thorough.

We feel that, even now, it should be possible for the Minister to be able to give an answer to the following question. Who, under the rules that he described, authorised this action? If it was a policeman, at what rank was it authorised? Was the Chief Surveillance Commissioner aware?

More generally, no doubt the inquiry will reveal in what other ways the authorities failed to follow proper procedure and whether any breaches of the applicable protocol were accidental or a deliberate and premeditated short-circuiting of the system. In particular, the House will wish to know whether it was known in advance that a Member of Parliament would be bugged and, if so, whether an explicit decision was taken not to switch off the recording equipment. It will also wish to know whether any higher authorisation was sought for any such decision, if such a decision was taken. The Government will need to establish whether this is an isolated case or whether the MP concerned has been bugged on other occasions, and whether other MPs, or indeed Members of your Lordships’ House, have been bugged in the past. It will be necessary to have a thorough inquiry, evidently conducted by a senior judge, to establish the wider facts.

An important substantive issue arises from this. Everyone in Parliament understands and accepts the virtually absolute nature of the privileged relationship governing communications between a Member of Parliament and a constituent. The question arises: what would happen if a Member of Parliament were to become implicated in actions or communications relating to a terrorist plot? Frankly, and perhaps unsurprisingly, the Wilson doctrine is silent on this. We on this side of the House feel that the inquiry might usefully consider these issues.

This case has exposed two rather serious risks. First, the Executive can apparently ride roughshod over the relationship between an MP and his constituents—a relationship that is the basis of parliamentary democracy. Secondly, the necessary authorisations for secret anti-terrorist activity are apparently being ignored. The Government need to reassure this House on these two points, among others, and to do so quickly.

My Lords, this is a Statement of some concern. The manner in which it has come out also causes concern. We have had a leak, clearly instigated by a whistleblower; the postal service, Royal Mail, is implicated in letters going missing; and, after some pressure since yesterday, we have now had this Statement in the House. It is a very brief Statement that is as sketchy as it could be to be any kind of meaningful summary of what has happened. It says very little and tells us very little. The noble Baroness, Lady Neville-Jones, has asked a few questions, and I wonder whether I might add to some of them.

The inquiry is of course very welcome, and important things will come to light as we see the results. There are a few specific points to make. We understand that the security agencies asked for a review of the Wilson doctrine. Is that correct? If they did, what has been the Government’s response to the request? If the Government do not wish to disclose that at this point, will they ensure that we get an idea through the inquiry of how applicable they think the doctrine is in the world we now live in? We also understand that the doctrine does not apply to e-mails. Is that correct, or are e-mail communications now subject to it? If not, are they likely to be in the future?

My final concern is about the impact on and the damage done to the subject of the intercept. Although Barbar Ahmed might rightly have been of concern to the security services, you would not expect the finger to be pointed at a Muslim MP seeing a constituent. Will the inquiry look at whether the authorisation, if granted legally and lawfully, was specific to the particular Member of Parliament or to the particular person held in custody?

Finally, can the Minister tell us whether he is holding any meetings with members of Barbar Ahmed’s family and others as a matter of urgency to reassure them as to the agenda that was in place here?

My Lords, I thank the noble Baronesses, Lady Neville-Jones and Lady Falkner, for their welcome to the inquiry referred to in the Statement. On the question of the letter from Mr David Davis, I reiterate that No. 10 has no record of its being received. I was asked whether the Wilson doctrine applies to the House of Lords, to which I can answer that yes, it does. Indeed, I understand that Lord Balfour of Inchyre, as Lord Privy Seal, made a Statement on 22 November 1966 stating that exceptionally, a Statement made by the Prime Minister in relation to the Wilson doctrine made it clear that it would apply to the House of Lords.

The noble Baroness, Lady Neville-Jones, asked about who authorised this, what rank were they, who knew in advance and whether there was a higher authorisation. I am not going to answer any of those questions because it is best left to the review I have announced. I thought that the noble Baroness, Lady Falkner, was a little unfair. My right honourable friend the Lord Chancellor dealt with this matter the moment he heard about it by announcing that there would be a review. We have come to Parliament on the first day possible to make a Statement, and of course we will continue to engage with Parliament. My right honourable friend has already said that at the outcome of the review, a further Statement to Parliament will be made.

On the Wilson doctrine, I specified clearly that it applies to all forms of interception that are subject to authorisation by the Secretary of State warrant. In response to the more general question the noble Baroness raised, it is better to see first the outcome of the inquiry. The Government can then consider what further action might need to be taken. The best thing is to have what it is hoped will be a very short inquiry which will answer some of the specific questions that have been raised. Then, in the light of that inquiry, we can consider whether any further action needs to be taken.

My Lords, I support the Minister in what he has said about the inquiry, which I am sure is a proper and appropriate course to take. Perhaps I may ask for the Minister’s assistance in this regard: in the 1960s I was a Minister in the Home Office, dealing with police matters from day to day. My understanding of the Wilson undertaking was that the protection given to a Member of either House of Parliament would be as close as possible to absolute terms, so as to make it an almost unique case if it was used exceptionally. Can I be given an assurance that that is still the case? Furthermore, whereas it seems that the protection is given to a Member of Parliament for a communication with a constituent, who, in such a situation, should the respondent be in relation to a Member of this House?

My Lords, the noble Lord makes a very good point in his second question. Of course, nothing is laid down in statute or any other guidance, so far as we are aware, but I suspect that like most things in your Lordships’ House, you know it if you see it. I do not think that I can say any more than that.

On his first point, that, too, is my understanding. The Wilson doctrine seems to have served this country and the Houses of Parliament well during the more than 40 years it has now been in operation.

My Lords, subject to the rare exception which my noble friend has outlined, does he recognise that as a solicitor, an MP and a Member of this House, I would have been enormously concerned if any discussions with constituents or potential witnesses in prison had been bugged. That would undoubtedly have prejudiced any subsequent proceedings, which is a vital point that has not been mentioned. Does my noble friend agree that any breach which happens forthwith, notwithstanding any inquiry, must be dealt with very rigorously?

Yes, I do, my Lords. The importance of holding an inquiry into the specific events that are alleged to have taken place is that it will enable us to inform on other matters. It is best to await the outcome of this inquiry. I agree with the general philosophy enunciated by my noble friend.

My Lords, having had the experience of appearing in a jurisdiction where the only safe place to discuss a case with instructing solicitors was in the middle of a swimming pool, I hope we will not get into such a situation here. The last paragraph of the Statement refers to conversations with a legal adviser and states that they are,

“subject to explicit safeguards which generally prohibit such interception”.

What does “generally” mean—“always” or “more often than not”? If the latter, on what occasions is the surveillance of the discussions between a legal adviser and his client in prison allowed. If there are exceptions, it will inhibit the proper operation of legal professional privilege throughout this country.

My Lords, I am going to duck the question to a certain extent. I will write to the noble Lord with a more detailed explanation. On his general point, I agree that this is an important guarantor of rights in our country and it is very important that it is maintained. That is why it is contained in the Statement.

My Lords, I apologise for missing the Minister’s opening words. I presume that there is no question whatever of conversations between counsel and prisoners being bugged.

My Lords, that is the point raised by the noble Lord, Lord Thomas of Gresford. The Statement makes it clear—I shall say it again—that any question of the interception or surveillance of the conversations of any person with their legal adviser is subject to explicit safeguards, which generally prohibit such interception or surveillance. I shall outline the safeguards and put a copy in the Library so that all noble Lords may consider them.

My Lords, I support the Statement made by my noble friend. The inquiry is incredibly sensible and I can think of no one better than Sir Christopher Rose to conduct it. He is a man of great independence. I have two questions. Can I assume that the inquiry will cover the current standing arrangements for the enforcement of the Wilson doctrine? Can I further assume that the Wilson doctrine will apply to conversations between Members of Parliament and their constituents in prison pending the result of the Christopher Rose inquiry?

My Lords, the answer to the second point is yes. As to my noble and learned friend’s specific question, I would rather allow the inquiry to go ahead and study the outcome. We can then see whether any wider implications will need to be considered.

My Lords, Mr Ahmed was being detained pending extradition. Is there any way that US legislation, such as the Patriot Act, could have had any implication for the Wilson doctrine?

My Lords, I noted that in reply to the noble Baroness, Lady Neville-Jones, the Minister said that he did not wish to go into those matters at the moment. It was not clear to me—and it may not have been clear to the House—whether that meant he knew what the answers were and would prefer to wait, or whether he did not know what the answers were.

My Lords, that is the sort of question that your Lordships’ House enjoys. Allegations arose on Saturday. We have asked for the inquiry to be undertaken. It is much better that we see the outcome of that inquiry, and we will then report to the House. The noble Lord should not read too much into my reply.

My Lords, as a former senior police officer I support the Government’s line on this: immediately the concerns were known, an inquiry was instituted. It is essential that that is done thoroughly and swiftly, and I am glad to know that we may have the answer within 14 days. I cannot imagine how exceptional the circumstances must have been to allow this to happen.

I know the senior officer involved in the anti-terrorist enquiries, an assistant commissioner at New Scotland Yard and a man of probity, intelligence and absolute integrity. It is a mystery to me how this happened, and I look forward to the answer to the inquiry as much as any other Member of the House. As a former senior police officer, I support the fact that the Government have instituted this inquiry immediately.

Will the inquiry also embrace the question of how the Sunday Times got this information? Was it bugging someone’s conversation?

My Lords, that is a very good question. I have read out the inquiry’s terms of reference; it will investigate the circumstances relating to the visits to Barbar Ahmed at HMP Woodhill by Sadiq Khan in May 2005 and June 2006, establish whether the visits were subject to any form of surveillance—and, if so, by whose authority and with whose knowledge—and report those findings. As I said, Sir Christopher will do his best to complete that task within two weeks and then a further Statement will be made. I do not think I can add anything more to that.