RORY SPEAKS ON MOBILE PHONES IN PRISON
Rory: I thank all Members who have spoken today, and particularly my hon. Friend Maria Caulfield for promoting this important Bill. I also thank my right hon. Friend Ms McVey who introduced the Bill in its original version, and my hon. Friend Sir Paul Beresford who brought forward the 2012 version.
This has been an astonishing tour d’horizon, and powerful speeches by an extraordinary number of hon. and right hon. Members have touched on fundamental issues concerning the purpose of prison. Members have mentioned the rehabilitative aspects of prison, as well as incapacitation, retribution and deterrence, but we must begin by thinking about the device of a mobile phone itself. As my hon. Friend Maggie Throup powerfully pointed out, this device is not simply a telephone, and when considering this Bill we must consider its relationship to prison in general.
Prison is designed to isolate somebody from the public, and in contemporary society prison is effectively a punishment of segregation or isolation which includes the breaking of communication. The difference between being in a prison cell, as intended by the prison’s administration, and being in a cell with this device in one’s hand, is absolute. In a cell, someone without such a device can expect to be controlled by the regime in terms of access to media and communications. With a device in their hand, however, their entire life becomes different—they are no longer quite a prisoner; they are someone who can begin to become an active, involved individual who can reach out well beyond the walls of their cell. Relatively rapidly in the short time available, let me talk through what that actually means and how that feels in a prison.
Having such a device effectively means that someone can set an alarm, wake up, and use a torch to communicate with the drone outside their prison cell. They can use their device to pilot the drone to their window, and having had their drugs delivered, they can sit back and go on Skype or Facebook, or make a WhatsApp video call with their partner outside prison. They can sit back, watch a movie, go on Facebook, and fall asleep. When they wake up in the morning they can use the device for their personal fitness training, or begin trading shares and make a little money.
As their morning starts, perhaps after breakfast, they can begin to use their device more actively to run their criminal gang outside the prison walls—that is the moment at which they pick up their mobile telephone to call a business rival, intimidate a witness, or organise the importation of drugs or weapons into the country. Having done that, the device then becomes a weapon within the prison itself. It allows someone to go to another prisoner and say, “You owe me £35 for the drugs that I dealt you last week”, or to calculate a 50% interest payment, or the interest payment attributed to a particular cell. The device allows someone to take a photograph of an individual and send it to their partner. If an individual will not pay, the device allows someone to feed them Spice and, as happened recently, put them in a washing machine, video them, and load an image of them going round and round on social media.
This device can also be used for research—it permits someone to get online, find out what the man sharing their cell has been convicted for, discover something about the business they used to run or the assets they might possess, and establish their address and where their partner is located. The device allows someone to undermine the prison regime, or take a photograph of their prison officer and share it with a friend outside the prison walls, so that they can follow the prison officer home. This device allows someone to research the entire family background of their prison officer, and when they have finished doing that—perhaps in the evening when they are locked up again—they can begin using the device actively to commit crime.
Someone could use their device to hack into other people’s websites, or to access the dark web and start trading weapons or slaves on line. This device might then allow them to begin going on social media. They might not wish to, but they could retweet an ISIS video on this device. They could use this device, through social media, to simultaneously organise disturbances across 30 or 40 prisons at the same time, and time when those disturbances took place. Above all, what they would be doing through their continual use of this device, going on Facebook and Twitter, is continually humiliating and offending their victims. They have been locked away as a sex offender or a violent offender, and their victim is suddenly finding that they are on Twitter or Facebook sharing their views on the world, talking to their friends and generally behaving as though they are not in prison.
That therefore brings us from the device to the purpose of the Bill. This is where the contributions by hon. and right hon. Members have been so important. The first point made by my hon. Friend Luke Hall, which is what we have to begin with, is that this device undermines the effective functions of a prison. It undermines the authority of the prison officers. It undermines their ability to use incentives and the earning of privileges in order to control the behaviour of a prisoner. Basically, it means that a prison is less safe and less functioning, and is unable to perform its functions.
It was clear from nearly the dozen speeches we heard today that there were four quite different concepts of prison. Roughly speaking, my hon. Friends the Members for Horsham (Jeremy Quin), for Hitchin and Harpenden (Bim Afolami), for Banbury (Victoria Prentis) and for Cheadle (Mary Robinson) focused on the rehabilitative aspects of a prison. My hon. Friends the Members for Croydon South (Chris Philp) and for Brentwood and Ongar (Alex Burghart) focused on the function of prison in terms of incapacitation. My hon. Friend Scott Mann focused on the importance of retribution within prison. My hon. Friends the Members for Havant (Alan Mak) and for Dudley South (Mike Wood) focused on deterrence.
I am simplifying—the speeches touched on many different aspects of the use of a prison—but by focusing on those four quite different purposes of a prison we can bring into clear focus the different ways in which this powerful device or weapon in the hands of a prisoner can be used to undermine the purpose of a prison. If we were to focus, as my hon. Friends the Members for Hitchin and Harpenden, for Banbury and for Cheadle do, on the question of rehabilitation, then suddenly the telephone can seem a rather attractive way of containing the prisoner’s ability to communicate with broader society.
The argument that might be made—I would not be making it—is that this device is what prevents a prisoner suddenly dropping off the edge of a cliff when they leave prison and re-enter society. A prisoner who has been locked up for 15 years without access to this device and without access to social media has very little idea of the society outside the prison walls. A prisoner who has access to this device is able to continue family contact, is able to keep up with the world, is able to educate themselves, is able to take German lessons, is able to go on Wikipedia. Indeed, as my hon. Friend the Member for Banbury explained in her speech, there is a sense—my hon. Friend the Member for Hitchin and Harpenden touched on this as well—that there is not a great gap between the kind of use that many prisoners are putting this device to and the kind of use that we ourselves, our families and our children are putting these devices to in everyday life.
But—this is where the speech by the hon. Member for Croydon South is so important—this device flagrantly challenges the fundamental principle of prison, which is that of incapacitation. In the example of Craig Hickinbottom, in the example of escapes being organised from prison, this device leaps over the prison walls. The prison walls no longer become a method of incapacitating a prisoner, but instead become a fluid substance through which the prisoner can continue to intimidate society, run a criminal gang and operate, in effect, as though they were not incarcerated at all.
This touches on the question raised by my hon. Friends the Members for Brentwood and Ongar and for North Cornwall when they talked about the retributive function of prison. If the point of prison is to ensure that the criminal is punished for the historical crime they committed, the question is this: is it adequate retribution to allow somebody to sit in a prison cell with this device? What do we mean by that? Clearly central to the question of punishment is the question of the deprivation of liberty, which involves the deprivation of communication. In so far as we are unable to punish a prisoner in other ways and many of the other ways in which people were traditionally punished have been removed, an individual is now sent to prison as punishment, not for punishment. In other words, the idea is that the individual goes to prison and the punishment is that deprivation of liberty. However, as hon. and right hon. Members have pointed out, the possession of this device could potentially undermine the fundamental principle of that punishment by giving a prisoner a range of liberties—the ability to speak to their family at a moment’s notice, the ability to go online, the ability to stream videos and music and the ability to continue to live the life of an active citizen from within the prison walls—which is not consistent with the judge’s intention.
That brings me to the fourth purpose of prison, emphasised by my hon. Friends the Members for Havant and for Dudley South, which is, of course, deterrence. On the surface, the issues around deterrence and incapacitation would appear to be the same issue, but they are not. The question of retribution, in particular, involves the judge accurately calibrating the punishment to fit the historical crime. The question in relation to the mobile telephone is the extent to which the deprivation of the mobile telephone is in proportion to the exact crime that the individual has committed.
The question of deterrence is quite different. It relates to the notion of an exemplary sentence—in other words, deterrence relates not to the past and to the historical crime committed by the individual, but to the future and wider society. The question then is: does this mobile telephone and its possession represent for broader society something that would be expected by the potential criminal, and the deprivation of which would dissuade them from committing that criminal act?
Superficially, all the questions around mobile telephones seem as though they are just questions of technology, but they are not just that—they go to the fundamental purpose of prison. Again, it might superficially seem that we can just say, “Prison exists for all these things. It exists to incapacitate, deter, rehabilitate and to take retribution,” but this is not true in reality. If we look at the debates that happen within criminal justice, we are unable to resolve these fundamental issues, and the reason is that the principles, or assumptions, from which these things are derived are in conflict with each other. They can be in conflict in different ways.
It has been a great privilege to hear from so many learned Friends today—indeed, I would be delighted to take interventions from any of them—and they have managed to put their finger on deep philosophical distinctions.
Jeremy Quin:
I would not describe myself as “learned”, either in fact or by courtesy. My hon. Friend is making a very powerful and interesting speech about the philosophy of prisons. It occurred to me, listening to him, how profoundly things have changed over the last 30 or 40 years. If we compare and contrast what an offender might have done in society 20, 30 or 40 years ago with the situation now, we see how markedly things have changed. I am thinking about people’s personal lives—their access to films, the internet and the way they conduct themselves. If we compare how people conduct their social lives now with 30 years ago, when social life was more community-based, it is clear that things have changed greatly, and that needs to be reflected in the prison sentences and jails.
Rory:
My hon. Friend makes a very important point. The questions around the telephone is what we expect in society as a whole and the relationship of a prison to what happens in broader society. What we see in our prisons is that in fact they ultimately mirror broader society. What was acceptable in the 19th century is not acceptable today. For example, in Pentonville prison 175 years ago solitary confinement meant total silence and the use of masks for 23 hours a day. Slopping out, which happened as recently as the 1980s—in other words, the fact that prisoners did not have lavatories in their cells—has ceased to be acceptable. Our views on whether prisoners should have showers in their cells might change in 20 or 30 years’ time.
Our views on how a mobile telephone relates to normal life will also change. Will a mobile phone begin to feel so fundamentally interwoven with our social life, our communications and the way we live in a 21st-century society that to be deprived of it will feel quite different in 20 years’ time from how it feels today, or how it might have felt 20 years ago?
Therefore, in trying to work out how to frame legislation and how to treat prisoners, we have to deal with social change at a range of different levels; we have to deal with changes in culture and society over time; and we have to deal with clashes of values between individuals that cannot be reconciled.
The interesting point raised by my learned friends who focused on the question of retribution in justice goes to the fundamental question of what we are entitled to do to an individual.
Alan Mak:
Does my hon. Friend agree that we experience not only cultural change, but technological change? One of the strengths of the Bill is that it sets out a framework that will help to future-proof the statute book with regard to technological change.
Rory:
That is absolutely right. Indeed, the very existence of the Bill shows how quickly technology is changing. We began in 2007 simply by making it illegal to have a mobile telephone in prison—it carries a maximum sentence of two years. One would have thought that there would therefore be no problem with simply jamming the signal in prisons to prevent the use of mobile telephones, because having one was illegal. What on earth is the problem with putting in place the technology to stop that? What we discovered, of course, is that that presents a huge range of philosophical, legal and technological challenges. That explains why we had another Bill in 2012 and, thanks to the very good work of my hon. Friend the Member for Lewes, another Bill now in 2018.
Those challenges are quite significant. Let me deal first with the philosophical challenge. Article 8 of the European convention on human rights allows for a right to privacy. The 2012 legislation began to give the Secretary of State the authority to deal with the question of the right to privacy, and also to deal with the unanticipated consequences, which have been raised by various hon. Members, of the blocking technology affecting the lives of people outside the prison walls. Even that is not sufficient, because there is then a series of changing regulations relating to Ofcom, for example.
The 2012 legislation tried to deal with the gap between what can be authorised to a Crown servant—in this case the governor of a public prison—and what instructions can be given to the director of a private prison, such as one run by G4S, Serco or Sodexo. That was resolved in 2012, but what happened then—this point has been raised already—is that we are simply walking around a prison with various devices. What devices can be used in a prison? Before this legislation, we could wander around a prison with a metal detector, which can pick up the metal in a mobile telephone. We could wander around with a wand that picks up the microwave signals from a phone, but the phone might be very small and hidden almost anywhere in a messy cell. What we were unable to do, except with the co-operation of the mobile telephone company, is operate from the mast.
Under the previous legislation, we were forced effectively to jam the signal by transmitting on the same frequency that the mobile telephone company transmits. The company moves from 3G to 4G and the signal changes. Let us imagine that there are three masts from three companies surrounding a prison, all of which are transmitting on different frequencies. Those frequencies change over time, as do their strengths. The prison will find itself trying to transmit on a frequency, and when the frequency changes they miss it. They find the frequency again and they transmit at a certain strength, but then the signal strength increases against them. As they increase the signal strength, they increase the likelihood that they will take out mobile telephone communications from the surrounding houses. That would be a real risk in Brixton, for example.
We are dealing all the time with technological change. The speeches of my hon. Friends the Members for Horsham, for Erewash for Torbay (Kevin Foster) and for Witney (Robert Courts) were particularly powerful in dealing with the ways in which that technological change drives this legislation, necessitates this legislation, and will challenge this legislation.
Alex Burghart:
My hon. Friend is making an extremely powerful speech. May I raise a practical point? I imagine that people living or working near prisons may fear that this change will reduce the quality of the signals in their houses or businesses. What reassurances can my hon. Friend give?
Rory:
That is a fundamental question, and I am pleased that my hon. Friend has asked it. It is, in fact, addressed both in the 2012 Act and in the schedule to the Bill. In the schedule, new subsection (4A) provides for the Secretary of State, in authorising the mobile telephone company—the mobile network operator—also to place an obligation on that operator not to interfere with the communications of individuals outside the prison walls, and to require the operator to take remedial action if any such interference should take place. That is a very good challenge.
My hon. Friends the Members for Torbay and for Witney also raised other issues, such as encryption and the potential setting up of a wi-fi network within the prison walls. That is not always easy. I assure Members that whenever we try to put wi-fi into a prison, we find that 150-year-old Victorian walls make it almost impossible to get a signal into it. On the other hand, criminals can often be extraordinarily entrepreneurial and ingenious in getting around problems that may defeat our engineers.
At the core of this, however, is not simply a question of technology. Let us return to the question of the four purposes of prison, and let us return in particular to the question of retribution. The key idea of retribution in relation to the mobile telephone is the idea that you are punishing a criminal for a crime that he committed in the past. As was suggested by a number of learned Members, that is a fundamental philosophical principle relating to the nature of the rights of that individual.
As Immanuel Kant pointed out, the individual should, as a matter of rational logic and a categorical imperative, be treated only as an end in himself, not as a means to an end. In other words, we should not be punishing individual A in order to change the behaviour of individual B. We should not even be punishing individual A in order to change the future behaviour of individual A. As Kant argues, the retributive punishment should be directed only towards the historical action of the individual, and should relate only to that historical crime. Kant is therefore arguing that neither deterrence, which is punishing individual A in order to affect the behaviour of individual B, nor rehabilitation, which is punishing individual A in order to affect the future behaviour of individual A, is a valid form of punishment.
The Members who advanced utilitarian arguments were making a completely different set of points. Their arguments were, in fact, arguments about society more broadly. They were suggesting that what matters is not the historical action committed by the individual, but society as a whole, and the future consequences. They might well argue that what matters is not what the individual did in the past—that has happened, and there is no point in crying over spilt milk—but how we change society in the future. How do we ensure, through the punishment that we inflict on this individual, that this individual does not go on and reoffend? How do we ensure, through the punishment that we inflict on this individual, that others are deterred from committing a crime?
In that fundamental clash between a Kantian deontological world view focused on the rights of the individual and the dignity of the individual, and a consequentialist or utilitarian argument in which the individual may suffer for the greater happiness of the greater number, we have something that cannot be resolved in this Chamber, because such fundamental values and principles are beyond the ability of this Chamber to resolve. All we can try to do—through the media, through civil society, through Parliament, through legislation—is listen to these types of debate, understand them and articulate them, but we can never fully resolve them. That is why this legislation needs to be able to contain a powerful and enormous element of flexibility. As technology changes and this device—this mobile telephone that I am now holding up—becomes more powerful, as the ways in which 4G or 5G technology emerge, as my hon. Friend Alan Mak points out, and as social attitudes towards punishment, crime and indeed social attitudes towards mobile telephones change, we need legislation that can keep up with that change. A day may come when some elements of the speech made by my hon. Friend the Member for Banbury, where she emphasised the centrality and normalcy of this phone in our everyday family lives and especially in the lives of our children, may begin to predominate over the kinds of argument made by my hon. Friend the Member for Croydon South.
Jeremy Quin:
It has been said that one does hear Kant in the Chamber occasionally, but rarely so eruditely expressed; it is wonderful to hear the Minister’s philosophical discussion. He talked about the centrality of mobile phones; the centrality a lot of us were concerned about was the direct use of the mobile phone to direct criminal networks and criminal gangs on the other side of prison walls. On the strict practicalities of the use of mobile phones, will the Minister reassure me that this Bill will help prevent that very real problem?
Rory:
Yes; in essence the point about the mobile telephone is that we need to understand it not as a telephone. It is of course a communications device and as such, particularly in telephonic communication, it can be used to control criminal gangs, but we must also take on board its full use, and understand that it is also a recording device, a way of accessing the internet, and a wallet in which money is contained and through which money can be transferred, and that it therefore can be used to intimidate people—to intimidate witnesses—to run criminal gangs and do all sorts of things right through to piloting a drone through a window. Once we understand that, we begin to understand that this device is a weapon, not a communications device, and what follows from that are all the things Members have raised in terms of criminality: the importing of illicit substances, the accessing of illicit entertainment, the making of illicit money, the running of illicit gangs, the extortion of money, the undermining of a prison regime, the committing of crime, its use for terrorism and for promoting disturbances, and create victims through social media.
All of which brings me finally back to the legislation itself. On the surface, this Bill seems very straightforward, and in fact of course, as Members have pointed out, the core of this legislation sits at proposed new subsection (2A) to the Prisons (Interference with Wireless Telegraphy) Act 2012:
“The Secretary of State may authorise a public communications provider to interfere with wireless telegraphy.”
The key point here is that it is addressed to the public communications provider rather than, as is the case in the 2012 legislation, to the governor of a prison or the director of a private prison.
Chris Philp:
I touched in my speech on a question about this proposed provision, asking whether the word “authorise” confers adequate power on a Minister or Secretary of State: if they authorise someone to do something, they may not follow that authorisation—they may ignore him. Should that word therefore be changed to “compel” or “require” in order to give the Secretary of State the power he or she needs?
Rory:
That is an interesting question, and the answer is that, as currently drafted, this word “authorise” means exactly that: it is giving legal permission. The anxiety of the mobile telephone companies would be that without that authorisation, were they to conduct these operations they would be in breach of Ofcomregulations and ultimately in breach of article 8 of the Human Rights Act 1998. Under this legislation therefore, all we are doing is saying to a willing mobile telephone company that, should it voluntarily wish to work with us, this gives it the authority to do so.
My hon. Friend the Member for Croydon South has raised an interesting point, however. What would happen if the mobile telephone company were to turn round and refuse to comply? To some extent that is hypothetical, because we have not yet encountered a mobile telephone provider that is not prepared to work with us on this, for a range of reasons. The mobile telephone companies’ relationship with Ofcom and the Government is complex, deep and interlinked, and they generally wish to retain the goodwill of the Government. It is also true that in some cases we would have a commercial contract with a mobile telephone company to undertake this work, so it would have a financial interest in working with us. Hypothetically, however, it remains the case that under this legislation, a mobile telephone company would be able to refuse to provide the service. We do not believe that it would do so, but my hon. Friend is absolutely correct to say that, theoretically, it could do so under this legislation.
Alex Burghart:
Has my hon. Friend’s Department received assurances from the major providers that they are happy with the legislation as it stands and that they intend to work with the Government in the future?
Rory:
Yes, the Department works closely with the major providers and our understanding at the moment is that they are all willing to work with us in line with this legislation.
I shall move towards a conclusion, and I shall try to end within the next three minutes. I want to move quickly through the Bill, and to clarify matters for hon. Members before they vote on it. In proposed new subsection (2B), “preventing the use” and “detecting or investigating the use” are the key purposes to which this authorisation can be put. In other words, the point of this is to ensure that we can prevent someone from using their mobile telephone, that we can find their mobile telephone, and that we can work out what they are doing with it.
Proposed new subsection (2C) will probably trouble, confuse, amuse and perplex a number of Members. It states that an authorisation may be given in relation to
“one or more relevant institutions…one or more kinds of relevant institution…or relevant institutions”.
Even a very learned and distinguished colleague such as my hon. Friend the Member for Banbury might struggle to work out why on earth we are distinguishing between those three categories. Perhaps she would like to intervene on me at this point. The answer is that parliamentary counsel is trying to provide for the possibility of our giving authorisation to, for example, two prisons in the adult male estate, such as Brixton and Wandsworth, or to two kinds of prison, let us say a young offenders institution such as Feltham and an adult male institution such as Brixton. Alternatively, we might wish to give a more general authorisation to all institutions of the relevant kind—for example, all the young offender institutions in the country or all the adult male institutions in the country. This is a perfect time for my hon. Friend the Member for Banbury to intervene on me.
Victoria Prentis:
I thank the Minister for giving way, but he certainly does not need my help or that of more learned colleagues. The point he is making is an important one, which is that the current legislation is clunky and difficult for governors and Ministers to use, and that this legislation will make things much easier and more effective.
Rory:
That is an enormous relief
Chris Philp:
The Minister has mentioned the word “authorise” again. I heard his clarification earlier. As the Bill is drafted, the mobile phone companies would not be absolutely required to comply, but can he confirm that it is the expectation and the intention of the Government—and, I think, of this House—that when the Government ask a public communications provider to interfere with wireless telegraphy in a prison, it will comply with that request, and that the Government and the House would take a dim view if any public communications provider did not comply with such a request?
Rory:
Without wishing to sound like the Speaker, I think my hon. Friend has made his point with great force and clarity, and I am sure that anyone listening to the debate will have taken on board his message very clearly.
In conclusion, I should like to thank hon. and right hon. Members for their patience. This has been a relatively long debate, and we have touched in extreme and excruciating detail on the philosophical foundations of the legislation, as well as on the technological applications of mobile telephones. It has been a really worthwhile debate. Having spoken at some length, I want to finish with a short moment of sincerity to thank my hon. Friend the Member for Lewes, in particular, and also other right hon. and hon. Members for their often intelligent, interesting and illuminating contributions. The Bill matters: it goes to the heart of how prisons are run, what they exist for, how we punish someone and what a prisoner can do from within a prison’s walls to intimidate prison officers and other prisoners, profit themselves and organise crime in broader society.
Giving Government the power to ensure that these illegal acts, currently punishable by a maximum sentence of up to two years in prison, can be prevented with the latest technology and the consent of mobile telephone operators, which will allow us to pinpoint the devices, block them and follow their traffic, will be an extraordinary contribution to reducing drugs, violence and disorder in prisons, making them safer and more decent, and ultimately protecting the broader public.
