Jack Straw made a statement in the House of Commons regarding the apparent breach of the Wilson Doctrine, involving the electronic eavesdropping on conversations which should have been protected by Constituent / Member of Parliament privilege and, perhaps also of client / lawyer privilege which seems to have occurred at Woodhill prison near Milton Keynes.
It announced Yet Another Inquiry, this time by Rt. Hon. Sir Christopher Rose, the current Chief Surveillance Commissioner, but with very limited terms of reference, and no power to compel testimony from the key witnesses.
Jack Straw did not clarify the details of the Wilson Doctrine, and ruled out an investigation of the bugging or interception of supposedly privileged client / lawyer conversations.
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HMP Woodhill (Inquiry)
The Secretary of State for Justice and Lord Chancellor (Mr. Jack Straw): With permission, Mr. Speaker, I should like to make a statement. As the House will be aware, there appeared in The Sunday Times yesterday allegations that conversations between my hon. Friend the Member for Tooting (Mr. Khan) and a constituent of his, Mr. Babar Ahmad, detained in prison on an extradition warrant, had been subject to covert recording when my hon. Friend visited Mr. Ahmad 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 hon. 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.
Somehow, as a former Home Secretary and former Foreign Secretary and now Minister of Justice / Lord Chancellor in charge of Prisons, Jack Straw has managed to elbow Home Secretary Jacqui Smith out of the limelight - she is supposed to be the Cabinet Minister who is politically accountable for the Police and the the counter-terrorism agencies, but she obviously is not up to the task, and she does not seem to have uttered a word in public about the scandal.
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. But just before I do so, let me underline the fact, drawn 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, and are proportionate, and unless the information concerned cannot be obtained by other means.
The words "unless the information concerned cannot be obtained by other means." are not part of the law, and provide no actual legal protection against excessive snooping, which depends rather more on the economic costs of technological snooping.
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 the Secret Intelligence Service and GCHQ. Such a Secretary of State warrant is also required for surveillance operations--including eavesdropping—where sought by the three intelligence agencies. The telecommunications regime is overseen by the interception of communications commissioner--normally a retired member of the senior judiciary, currently Sir Paul Kennedy. This is laid down in the Regulation of Investigatory Powers Act 2000--known as RIPA. 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 Police Act 1997, 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 by a chief officer of police or officer of equivalent rank in the Metropolitan Police Service is required. 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.
"Ministers play no part in these authorisations"
The Labour Government Ministers should still be held to account politically for any such snooping, even though they appear to up to their old tricks again, and trying to blame their subordinates.
Where any operation involves the use of premises of HM Prison Service, neither the Prison Service nor the Minister concerned is asked for any additional authorisation
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for the particular operation. What the Prison Service is asked for, on the basis of a brief summary, is permission to conduct the operation, and that judgment by the Prison Service is based on whether any order or control issues arise, not on the merits of the authorisation itself.
Therefore the Prison Service or an individual Prison Governor has to give permission for eavesdropping electronic surveillances devices to be installed on their premises
Why then is Jack Straw classing this as Intrusive Surveillance (which involves "interference with property" i.e. skilled, undetectable burglary of residential premises or offices or private vehicles ?
Since the alleged bugging was of the visitor area of the Prison, rather than Babar Ahmad's cell, surely it was Directed Surveillance ?
Both Intrusive and Directed Surveillance should still involve the Office of the Surveillance Commissioners.
The story in The Sunday Times 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 hon. 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 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”
to me as
“the Justice Secretary.”
The inquiry will of its nature 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 says that 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 his findings.
Rt. Hon. Sir Christopher Rose is, coincidentally, the Chief Surveillance Commissioner who is supposed to provide independent scrutiny under the Regulation of Investigatory Powers Act 2000 and the Police Act 1997, of Covert , Directed or Intrusive Surveillance by the secret intelligence agencies and the Police.
If this system actually worked properly, then his predecessor as Chief Surveillance Commissioner, Rt. Hon. Sir Andrew Leggatt, should have been aware of the problem.
This Inquiry is separate from Sir Christopher's functions and powers as Chief Surveillance Commissioner.
Presumably Sir Christopher will check his own Office's records for any sign of an Authorisation request, and find nothing. Then he will have a chat with some senior Thames Valley and Metropolitan Police Officers and the current Woodhill Prison Governor, and perhaps some Home Office and Ministry of Justice civil servants and he may be shown the supposed internal inquiry report by the Metropolitan Police, which the BBC are reporting.
However, as it appears that both then Chief Constable of the Thames Valley Police Peter Neyroud (now CEO of the Under-Secretary-General for Safety and Security for the United Nations Secretary-General, and so has Diplomatic Immunity, should he choose to exercise it), who are reported as having authorised the bugging of Babar Ahmad, have now retired from those posts, so Sir Christopher has no power of compulsion over them, should they choose to refuse to talk to him.
Sir Christopher Rose will not be able to offer immunity from prosecution to key witnesses,, such as the former Thames Valley policeman Mark Kearney who actually did the bugging, and claims to have warned his superiors, or to make such an offer to other Metropolitan Police Officers.
Neither can he compel access to national security classified emails or other intelligence documents giving the background justification for such bugging, especially if they are as a result of any sort of quid pro quo with the secret agencies of the United States of America.
Presumably Sir Christopher will do a thorough job, but only within the narrow terms of reference which he has been given, so the effect will be another useless political whitewash.
It may 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, when 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 that required a change of policy he would, at such a moment as was compatible with the security of the country, make a statement about it. The terms of that statement have been endorsed by successive Prime Ministers, including by Tony Blair in a written ministerial statement to the House on 30 March 2006. In a written answer on 12 September 2007, my right hon. 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, 12 September 2007; Vol. 464, c. 2103W.]
This is another typical Ministerial statement about the Wilson Doctrine, which does nothing to clarify it.
It does seem to say that the planting of electronic bugging devices by the Police, or the use of parabolic microphones, laser microphones etc. by the Police, under Police Act 1997, does not come under the Wilson Doctrine as interpreted by Gordon Brown's regime, since Ministerial warrants are not needed for this.
Such warrants are needed under the Regulation of Investigatory Powers Act, for the Security Service Mi5, the Secret intelligence Service Mi6 and GCHQ.
It is still unclear whether such bugging or interception and surveillance by Military Special Forces units e.g. the SAS or the Special Reconnaissance Regiment, or the 18 (UKSF) Signal Regiment etc. is covered by this Wilson Doctrine or not.
Secondly, the question has been raised about interception of, or surveillance of, conversations with, any person--whether a suspect, a convicted criminal or otherwise--by their legal adviser. Those are all subject to explicit safeguards which generally prohibit such interception or surveillance.
Mr. Speaker, I commend my statement to the House.
There are already media reports of firm evidence of illegal interception of supposedly confidential privileged legal solicitor / client conversations being monitored and transcribed, something which Conservative MP and lawyer Douglas Hogg made a point about a few minutes after this statement.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): It would seem as if something has happened that should not have happened, so there is a risk that other things that should not have happened might have happened. Can the terms of the inquiry be enlarged so that Sir Christopher Rose has an opportunity to identify, whether at Woodhill or anywhere else, conversations between prisoners on remand and their legal advisers have been recorded? If they have, not only is the integrity of the criminal justice system at risk, but individual convictions will be prejudiced and will probably have to be set aside. Sir Christopher would do well to examine, too, the question of whether private conversations with legal advisers have been recorded, whether at Woodhill or at other prisons?
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Mr. Straw: The inquiry is specifically into the allegations that have been made in respect of our hon. Friend the Member for Tooting. I repeat to the right hon. and learned Gentleman and to the House that on the subject of legal professional privilege—in other words, conversations between any individual, whatever their circumstances, and their legal adviser—specific rules are laid down in codes of practice and in non-statutory form, which, as I said, generally prohibit not only the interception or surveillance of such conversations but any accidental recording that takes place thereafter. To my certain knowledge, as a former Home Secretary and Foreign Secretary, those rules are rigorously enforced, and there is a careful audit of all interceptions and the use of those powers by the relevant commissioners.
Therefore Sir Christopher Rose is not actually going to examine either the Wilson Doctrine or the bugging or interception of supposedly legally privileged conversations.
We await the Government's further statement in two or three weeks, without much hope of further enlightenment.
Will Members of Parliament now force the Government into strengthening the safeguards and increasing the transparency of the oversight of the secret state snoopers ?
Or will terrorists and our other ideological totalitarian enemies, win another victory by default, with the destruction of more of our former freedoms and liberties ?