Bewry, R (on the application of) v Secretary of State for the Home Department

MR JUSTICE BEATSON: This application for judicial review launched on 28th August 2006 concerns the rights of members of prison boards of visitors. As from 1st November this year, when Section 26 of the Offender Management Act 2007 comes into force, boards of visitors are to be renamed Independent Monitoring Boards. The claimant is a former member of the independent monitoring board of HMP Norwich. He challenges the defendant's refusal at a time he was a board member to allow him access to files containing covert human intelligence source material. Originally, the challenge also related to a refusal to provide him with full details of other security information, but that aspect of the claim has been resolved.

The claimant's application, when made, relied on an entitlement to such material under rule 79(3) of the Prison Rules 1999 SI 1999 No.728. However, the sole issue before the court now concerns an amendment to rule 79(3) in the Prison Amendment Rules 2007 SI 2007 No.2954 which also comes into effect on 1st November. The amendment exempts records held for the purpose of or relating to conduct authorised in accordance with part 2 of the Regulation of the Investigatory Powers Act 2000. The issue is whether the amendment is intra vires Section 6 of the Prison Act 1952.

Part 2 of the Regulation and Investigatory Powers Act 2000, which I shall refer to as RIPA, relates to covert human intelligence source material. Since the focus of the challenge is confined to the vires of the proposed amendment. It is possible to deal with the facts briefly. I do so primarily in order to provide context for the submissions made by Mr Southey on behalf of the claimant, and by Mr Kovats on behalf of the Secretary of State.

The claimant was appointed a prison visitor at HMP Norwich in 2000. He has had access to security files in the past. In 2004 he upheld a complaint concerning a decision to recategorise a prisoner as a result of a review of documents, including security files. Following that, he found it more difficult to access security files. After a lot of correspondence and consideration by the defendant, the defendant's position which is maintained is that covert human intelligence sources, source material, fell outside the material to which a member of an Independent Monitoring Board is entitled.

The facts from the claimant's point of view are contained in the claim form signed by his solicitor. On behalf of the defendant, there is a statement by Mr MacLean, the head of the Independent Monitoring Board Secretariat. In paragraph 4 of this statement, Mr MacLean states that to the best of his knowledge:

I observe that the term acquired statutory currency in 2000 with the enactment of RIPA. However, as Mr Kovats observed in the course of his submissions, there has been reliance in prisons for many years on information provided covertly by human sources, ie by other prisoners and others. RIPA was the result of the need to regularise the position and treatment of such material, so that the United Kingdom complied with the requirements of Article 8 of the European Convention. It may have been considered in the light of decisions, for example the Khan decision about electronic surveillance within prisons, that existing arrangements would not meet the proportionality test, because they provided insufficient protection against arbitrariness. Accordingly, RIPA makes detailed statutory provision. It both sets the bounds on what information is to count as covert human intelligence source material, see Section 26(8), and as to how it is to be handled. It also provides for Commissioners and a Tribunal to monitor the proper use of such material within the law.

I return to Mr MacLean's statement. He stated that, in the light of the application, the National Council of Independent Monitoring units met on 27th September 2006. It agreed that it is not appropriate for independent monitoring boards to have access to covert human intelligence source material. The minutes simply record that it is not thought appropriate for them to have such access. Mr Maclean states that he believed that the reasoning was that such information would not contribute to the monitoring role of members of boards. He also say that the role of the boards is to monitor and not to investigate. His statement also deals with the reasons for protecting security and covert human intelligence source material. These are the need to protect informants and the need to ensure that informants have confidence that information will only be disclosed as specified. He sets out the requirements in terms of the level of seniority of the persons who have access to human intelligence source material, and the administration of such material. His statement says that:

Mr MacLean also states that:

In view of the ways the case has proceeded, the fundamental provision is Section 6 of the Prison Act 1952. The material parts of this provide:

Section 47(1) of the Prison Act 1952 empowers the Secretary of State to make rules for the:

The prison rules are made pursuant to Section 47(1). The provisions concerning boards of visitors are in part 5 of the rules. Rule 75(3) empowers the Secretary of State to terminate the appointment of a member of a board, if he is satisfied that the member that failed satisfactorily to perform his duties, or to undertake training or his conduct is such that it is not in the Secretary of State opinion fitting he should remain a member, or there is any conflict of interest between the member performing his duties as a member, and in the interests of that member, or there appears to be, or could appear to be such a conflict of interest.

Rule 77(1) provides that the board of visitors shall satisfy themselves as to the state of the prison premises, the administration of the prison and the treatment of the prisoners. Rule 77(3) requires the board to direct the attention of the governor to any matter which calls for his attention, and to report to the Secretary of State any matter which they consider it expedient to report. That provision tracks the relevant words in Section 6 of the Act. Rule 77(4) requires the board to inform the Secretary of State immediately of any abuse which comes to their notice. Rule 78(1) requires the board, or any member of the board, to hear any complaint or request which a prisoner wishes to make to them or him. Rule 79(2) provides that a member of a board shall have access at any time to every part of the prison and to every prisoner, and he may interview any prisoner out of site and hearing of officers.

Prior to the amendment made by the 2007 order, rule 79(3) provided that:

Guidance on the meaning of the rule 79(3) prior to the 2007 amendment is contained in both the handbook for members of boards of visitors produced in 1999, and in the Independent Monitoring Board reference book dated 2005. Both state that rule 79(3) does not define the records of the prison, but that it is taken to cover records which are held by the governor, director or staff of the prison in their official capacity. The Independent Monitoring Board reference book also states that staff records are not records to which members of the boards are entitled.

Mr Southey submitted on behalf of the claimant that Section 6, in effect, prescribes certain core functions for independent monitoring boards. These are to hear any complaints which may be made by the prisoners, and to report to the Secretary of State any matter which they consider expedient to report. He relies in particular on the words:

That precedes the reference to complaints and a report. He submitted that the prescription of these core or minimum functions shows that Parliament regarded those functions as being a central part of the role of boards. He relied on the fact that it is for boards to determine what they report on. He submitted that this suggests that Parliament intended boards to have a broad jurisdiction, and not one constrained by the Secretary of State. He submitted that if the boards are not able to exercise their minimum functions, their position as an independent safeguard against the Prison Service misusing its powers would be undermined. Accordingly, he submitted that to exclude covert human intelligence source material from the material to which an individual board member is entitled has this effect.

To introduce a provision limiting the documents which a board member can see is ultra vires in his submission because it emasculates the board's minimum or core functions. Mr Southey submitted that the fact that much of what the boards do is public, whereas RIPA is concerned with covert and extremely private material, is not an answer to this. He relies in part on the provision in Section 29(5)(e) of RIPA which states that there must be arrangements that are necessary for ensuring:

He submitted that, given the statutory functions of boards, they fall within the concept of "need" in Section 29(5(e). Boards and members of boards have access to other sensitive material which may include material provided by informers who do not fall within RIPA's definition of a covert human intelligence source. Board members are appointed by the Secretary of State and can be dismissed by the Secretary of State if they do not carry out their functions properly. One of those requirements is an appropriate awareness of security considerations. Mr Southey submitted that the "need" within Section 29(5)(e) of board members is twofold. First, it is so they can report to the Secretary of State. He submitted that covert human intelligence source material may be relevant to the consideration of what he described as ordinary prison decisions, such as categorisation of prisoners. Secondly, he submitted that board members have a need to know it so that they can monitor compliance with RIPA.

Mr Kovats submitted that the proposed amendment to rule 79(3) is intra vires. First, it falls within section 47(1), which enables rules to be made for the regulation and management of prisons; that is, he submitted, a wide provision. He submitted that reading Regulation 47, together with Section 6, did not affect the matter, because Section 6(3) provides that the rules shall prescribe the functions of visitors. He submitted that the reference in Section 6(3) to hearing complaints and to reporting to the Secretary of State on matters which members of boards consider it expedient, did not touch covert human intelligence source material matters. He submitted that the closing part of the section 6(3), empowering boards and visitors, at any time, to enter a prison and to have free access to every part of it and to every prisoner, dealt with geography, ie where members of the boards can go, and not information; what documents they can read.

He submitted that there is nothing in the proposed rule 79(3), as amended, that will prevent a board member hearing any complaint which is made or reporting. Mr Kovats' submission was that access to documents is the province of the regulations. It is a matter for the Secretary of State to decide on the extent to which a board, or a member of a board, should have access to documents to enable the board or the individual to fulfil the statutory functions.

The provisions of rules 79(1) and (2), and of rules 77(1, (3) and (4), to which I have referred, deal with enabling the performance of the core functions. Mr Kovats relied on four other points. The first was that the amending rules are specific, and that specific rules override general rules. That, however, does not address the vires issue. If Mr Southey is right on the implication of the core or minimum functions, the limit comes from Section 6 and not from within the rules themselves. Mr Kovats then submitted that rule 79(3) as amended is not repugnant to Section 6. I will return to this. His third argument was -- and he accepted it was an argument from silence -- that covert human intelligence source material and reports have not been disclosed in the past. He relied on this as some indication that board members are not required to have access to it. Finally, he relied on the consequentialist argument that if information was misused by board members, the disciplinary powers of the Secretary of State would be inadequate, because the damage would have been done.

The primary task of boards as set out in Section 6 is to hear complaints, and to report on any matter which a board or a member considers expedient. It is clear that the latter includes the administration of the prison and the treatment of prisoners. There is also a requirement under the rules to report any abuse that comes to a board's notice. I accept Mr Southey's submission that, in hearing a complaint and deciding on what to report, some investigation is necessary. I do not, however, accept that this means that members of boards are entitled to have access to all documents whatsoever by virtue of Section 6, and that any attempt to restrict access in secondary legislation is flawed. Section 6 has to be seen in the context in which it has operated. Since 2000, the context includes RIPA. RIPA makes detailed provisions for protecting covert human intelligence sources, and for monitoring compliance with its provisions by Surveillance, Commissioners and a Tribunal.

Section 6 of the 1952 Act is primarily about access to prisons and prisoners. It is not primarily concerned with access to records. Access to records is given by the rules. The claimant maintains that access to all documents, including the staff records, which guidance suggests have been thought to be outwith the rule 79(3), is essential to maintaining the minimum functions of a board as an independent investigator. Pressed by me, Mr Southey submitted that this should entitle board members, no doubt after suitable arrangements had been made, to go through the draws in a prison governor's desk to seek documents. That, in my judgment, is not required by Section 6. In the case of covert human intelligence source material, there is a detailed statutory scheme, including safeguards to ensure compliance with the scheme. Mr Southey fairly makes the point that the RIPA system is not prison specific, and that the Commissioners are unlikely to have the time to monitor prisons in the way that the individual boards do. Nevertheless, boards can still hear complaints and can report to the Secretary of State. If boards are concerned that any covert human intelligence source material has been improperly used, or that if a prisoner raises a fear of this sort, it is open to make a report of the concern to the Secretary of State. It is also open for the concern to be brought to the intention of the Commissioners, and thus an independent investigation is possible. It would appear to be the case that no previous requests for such information have been made. In the light of that it is understandable that the 2000 Act, RIPA, did not explicitly address this point. For these reasons, I have concluded that the amendment to rule 79(2), which is due to come into force next week, is not ultra vires Section 6 of the Prison Act 1952.

MR KOVATS: My Lord, two matters. First, on a point of factual detail, towards the beginning of your Lordship's judgement, you said that the claimant was a member of the board.

MR JUSTICE BEATSON: Is he a former member?

MR KOVATS: His membership expired in 2006. The Secretary of State has not reappointed him, and he is in dispute about the failure to reappoint him.

MR JUSTICE BEATSON: Well, I will put former member, but the rest --

MR KOVATS: The second point is we seek our costs.

MR JUSTICE BEATSON: Let us deal with the second point first.

MR SOUTHEY: In relation to costs, I am not sure in principle that I can oppose the position. However, obviously the claimant is legally aided, so we do seek the normal order under Section 11 of the Access to Justice Act.

MR JUSTICE BEATSON: Are you going to draw that order up for me?

MR SOUTHEY: If need be, yes.

MR JUSTICE BEATSON: let me just stop you, Mr Kovats, you cannot resist that, can you?

MR KOVATS: Certainly not.

MR JUSTICE BEATSON: I am going to ask one of you to draw it up, and then send it to me.

MR SOUTHEY: There are two other points in relation to the order. Firstly, we obviously also seek assessment of our costs for the purposes of --

MR JUSTICE BEATSON: Well, you are entitled to that.

MR SOUTHEY: Thank you, my Lord. The second point is to reserve my client's position, but also because this is, as far as I am aware, the first case considering the scope of Section 6, and that is obviously an important issue, in some respects, because (inaudible) as everybody can see, have an important role in the prison service. I would ask for permission to appeal at this stage, on the basis of the importance of the issues raised. your Lordship will be aware that the test for permission to appeal is a twofold test. I am not going to seek to persuade your Lordship that your Lordship is wrong, or arguably wrong, but I would submit that there are important issues raised in the judgment.

MR JUSTICE BEATSON: Do you have anything to observe on permission to appeal?

MR KOVATS: We would oppose permission, first on the grounds that, with respect, there is no prospect that the Court of Appeal will reach a different conclusion. second, we submit that there is no other compelling reason, indeed quite the opposite, it is important that the legislation comes into force, and everybody knows that it is the law.

MR JUSTICE BEATSON: I am going to refuse permission. You will have to persuade the Court of Appeal. The reason that I am doing so is that I have done this on a straightforward statutory construction; it is a short point. If the court wishes to hear it, it can. (Pause) That is what I have written on the form, which I always feel I ought to tell you.

MR SOUTHEY: Thank you, my Lord.

MR JUSTICE BEATSON: I would like to thank both of you for the very clear written submissions that I had the opportunity of reading beforehand and for this morning.

MR SOUTHEY: Thank you.