Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

I have not tabled an amendment to the clause, but seek clarification following the proceedings in another place. Clause 7 deals with consent to surrender and provides that where an arrested person gives written consent

``in the presence of the justice of the peace or, in Scotland, a sheriff,''

the competent court will make a delivery order and the person will have been taken to have ``waived his rights'' to appeal against the order. According to the notes on the clauses, that reflects the provision in article 92.3.

Clause 7(2)(b) states that consent to surrender may be given

``in circumstances in which it is inappropriate for the person to act for himself, by reason of his physical or mental condition or his youth, by an appropriate person acting on his behalf.''

The definition of incapacity was brought up in another place, but I want to probe the matter further because, as I am sure that the Solicitor-General will agree, it is important to establish the circumstances in which another individual can take on the onerous burden of consenting to surrender for the person who is the subject of the warrant.

In our discussion of clause 2, we saw that a person already convicted can be the subject of a warrant and therefore in extremis—he or she has nothing to lose. Yet here we have a situation in which a person purporting to take the burden from the shoulders of the person arrested will take on the role of mouthpiece. That has serious implications for the liberty of the person arrested. Given that the provision gives total discretion to the other person acting on that individual's behalf, the ability to consent to surrender should be given to another person only in very restricted circumstances in which the person arrested cannot give consent.

My noble Friend Lord Kingsland moved an amendment to that effect, No. 37, in another place. The Attorney-General, Lord Williams of Mostyn, tried to give a reason for rejecting the amendment, but the discussion was not a full one and it represented something of a dismissal of the case that had been advanced quite succinctly. The Solicitor-General should have the chance to make further comment on the definition of incapacity, given the severity of the consequences. It is important to ensure that the court is satisfied of the individual's incapacity prior to accepting consent from another party.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

As the hon. Lady rightly says, there is a provision whereby, in circumstances in which it is inappropriate for a person to act for himself or herself, someone acting on his or her behalf can give consent, that is, in the event of incapacity. Our domestic courts will not take such a matter lightly. They will want to be satisfied as to the incapacity and to test both it and the appropriateness of somebody else acting on the person's behalf. It is right that the Opposition raise such cases, although we think that they are extremely unlikely to occur, if at all.

Mrs Cheryl Gillan (Chesham & Amersham, Conservative)

The Solicitor-General says that such cases are unlikely to occur. However, one condition in 7(2)(b) is ``by reason of . . . youth''. Child soldiers are used extensively in certain warring areas, so it is not unreasonable to assume that a situation might arise in which a minor—I would like the Solicitor-General to clarify any possible age limit—is subject to having to give consent to surrender, but is incapable of doing so and requires someone to do it on his or her behalf. I am not sure what the Solicitor-General means when he says that that is impossible. It might be unlikely, but it is possible or even probable in certain circumstances.

Professor Ross Cranston (Solicitor General, Law Officers' Department; Dudley North, Labour)

The courts will not have jurisdiction over persons under the age of 18. The key point is that the court will test the matter—if there is any dispute about the person's capability, the court will decide. I am sure that our courts will exercise that power rigorously.

Sitting suspended for a Division in the House.

On resuming—

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.