Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I welcome you to the proceedings this afternoon, Mr. Benton. We shared a short time serving together on the Select Committee on Education and Employment when I was first elected to the House and I am privileged to serve under your chairmanship this afternoon.

Clause 47 deals with outgoing requests from the United Kingdom for prisoners to be transferred from the UK to another country. In transfer cases, the competent authority making the transfer might not be a judicial authority in one of the countries involved. It need not even be a judicial authority. The mutual legal assistance convention requires that type of request to be transmitted between central authorities, not directly between judicial authorities.

When a prisoner is to be transferred from the UK under the clause, the request will be made by the prosecuting authority. The authority making the request will depend on the circumstances of the case. In a police investigation, the Crown Prosecution Service will issue the request on their behalf; in a Customs investigation, Customs will issue its own request as it is designated as a prosecuting authority. When a prisoner is transferred to the United Kingdom at the request of another state under clause 48, the request and practical arrangements will be handled by the UK central authority and the Prison Service, which will liaise with the prison in which the prisoner is held. There is no involvement of a judicial authority at the UK end.

While the authority at the requesting end of the process will be a competent judicial authority, a different non-judicial authority could—and, in the case of the UK, does—deal with the request at the executing end. It will therefore not be appropriate to refer only to judicial authorities for that reason.

We have not sought to define ''competent authority'' because we do not wish to exclude appropriate authorities that have the authority to deal with such transfers. We are satisfied that that will not lead to a situation in which we execute requests from inappropriate authorities. All such requests must

be routed by the central authority, the Secretary of State, in the requesting and the requested state, providing a check at both ends of the process that the request comes from a valid and appropriate authority. I hope that I have reassured the hon. Member for South-East Cambridgeshire (Mr. Paice).

Mr James Paice (South East Cambridgeshire, Conservative)

Will the Minister confirm that the request will come from another country via the Government of that country before it reaches our Secretary of State? Clause 47 states that the Secretary of State

''pursuant to an agreement with the competent authority of a participating country'',

as though it is the authority that will make the request. The hon. Lady seems to be saying that that is not so, but that it will come via the Government of that country, so that we will know that it is a genuine request.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

My understanding is that the central authority of the country concerned would be responsible for authorising the order. I shall seek further information on that point from my officials, who are writing quickly as I speak. I shall clarify the situation.

Mr David Heath (Somerton & Frome, Liberal Democrat)

While the Minister is considering her response to the hon. Gentleman, perhaps she can answer this question. What would the situation be in the case of a federal authority when the prison system, or the prosecuting authority is under the control not of central Government, but of the Länder or whatever?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

My officials suggest that if a request were issued by a judicial authority, it would come via the Government. The arrangement will be with a competent authority, although not necessarily the Government, and the initial request will be sent via the central authority. I hope that that clarifies matters. If it does not, I shall write to the hon. Gentleman to clarify for all Committee members what that means.

We are keen to ensure that things are dealt with properly, whether by the judicial authority or a competent authority, for example, the Prison Service. We would not want anything to prejudice either a case or the outcomes we want from the Bill.

Mr James Paice (South East Cambridgeshire, Conservative)

I, too, welcome you to the Chair, Mr. Benton.

I am grateful to the Minister and I congratulate her on her quick learning and nifty footwork in the ministerial role. I think that she has answered the question, but I am still a little bit confused. She was, of course, unable to answer the intervention from the hon. Member for Somerton and Frome (Mr. Heath).

I share the Minister's objective. We do not want things to go wrong. Similarly, as I explained on introducing the amendment briefly before we broke for lunch, I am concerned—just on the off-chance—about a request from an authority that was not genuine being properly checked. That was why I sought an explanation of the definition of the word ''competent''. Perhaps the Minister could consider that matter again and write to the Committee with a clear explanation of how it would operate and who

might be the authorities. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I beg to move amendment No. 144, in

clause 47, page 27, line 37, at end insert—

'( ) subject to any other restriction applied by a court in the United Kingdom that might prevent him from travelling to the relevant participating country.'.

I welcome you to the Chair, Mr. Benton.

I fear that this might fall into the class of amendments that I have tabled, to which officials respond, ''I do not know what he is talking about.'' That happened to the previous amendment and elicited quite a useful debate. Therefore, let me explain. I am simply probing the Minister on a serious point, rather than seeking an amendment to the Bill in the specific form that I have used.

The purpose of the clause is to allow people who are held by the British judicial system whose assistance is required in an overseas investigation or proceedings to go to that country in order to help. The prisoner, who may be on remand, has to agree to that request, after which the transfer would take place.

There could be instances in which somebody who was required to assist with an investigation abroad would be held in the UK, not by virtue of being in detention in a prison, but by other legal instruments now available to the sentencing authorities. For example, certain categories of offenders may have had their passports confiscated, or they could be in custody plus, which is being debated as part of the Criminal Justice Bill. There might be restrictions on their movements, or reporting requirements, that would prevent them from travelling abroad. They are not free agents. They cannot themselves answer a request to assist in an investigation abroad, but neither are they in the classes defined in clause 47(2)—a person serving a sentence, awaiting trial, or incarcerated for being in default of payment of a fine. I may be wrong, but I understand that there is currently no provision for British judicial authorities to accommodate such circumstances. It would be sensible if there were. If there were a request from overseas for someone who was prevented, by virtue of a sentence, from travelling abroad to assist with an investigation, there ought to be some way of temporarily setting aside that sentence, in the same way as is suggested for the transfer of prisoners, in order for that mutual assistance to be made.

I do not know whether alternatives are already in statute—if they are, I am not aware of them—and this has not been debated in the context of the Criminal Justice Bill where, as I have said, a new range of sentencing measures has been discussed. This is the obvious place for a provision to be made to allow a sentence to be temporarily suspended for the purpose of giving assistance abroad.

I hope that I have made a constructive suggestion to the Minister, because we should at least think about this.

Lady Lady Hermon (North Down, UUP)

The hon. Gentleman raises a valid point. I rise to ask him to address one category of prisoner—those who were released under licence and strict conditions under the Belfast agreement. Could the Republic of Ireland call things into question and require one of those prisoners to go to the Republic of Ireland?

Mr David Heath (Somerton & Frome, Liberal Democrat)

As always, I am grateful to the hon. Lady for bringing her experience in Northern Ireland to bear. I do not know the answer to that, and I wonder whether the Minister will have one to hand because it is a more complex issue than it might at first appear to be.

I hope that this is a helpful amendment in terms of eliciting a debate. It might be necessary to return at a later stage with proposals to fill in the lacuna in the present arrangements.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

It will be useful to try to clarify this situation. In preparing for this afternoon's exchange, I and my colleagues were trying to think of examples that would be relevant to the points that the hon. Member for Somerton and Frome raises. One such example that we came up with was if someone has been found guilty of football hooliganism, and is therefore barred from leaving the country. However, during our discussions on that, we felt that if someone were in custody—for example, they could be a prisoner and already have that restriction placed upon them—the fact that they would be in custody would mean that there would not be free access to travel and travel would be under supervision and in a custody situation.

Clause 47 provides for us to transfer prisoners abroad to assist with UK investigations into an offence that has been committed in the UK. It is unlikely to be used frequently, but it could be used where, for example, a prisoner is required to identify a site or participate in an identification parade overseas. Existing provisions under the Criminal Justice (International Co-operation) Act 1990 provide for prisoners to be transferred from the UK to another state at that state's request and from other states to the UK at our request. This new provision—along with clause 48—implements new obligations under the mutual legal assistance convention that build on and extend those existing arrangements for the transfer of prisoners.

This amendment is unnecessary. For the transfer to take place, the competent authorities of both participating countries need to agree the terms of the transfer so that custodial provision can be made in the requesting state. To safeguard the rights of the prisoner, subsection (4) specifies that a prisoner, or someone acting on their behalf, must provide written consent to agree to be transferred in this way.

Amendment No. 144 would impose a limitation that the subsection applies to a prisoner

''subject to any other restriction applied by a court in the United Kingdom that might prevent him from travelling''.

That is unnecessary. For any prisoner to be transferred, there must be an agreement between the competent authorities here and in the country to which they are to be transferred. Furthermore, these outgoing transfers will be made at the request of the

UK authorities. If a prisoner were not allowed to travel, it is clear that they could not be transferred—that would be a breach of the order. It is difficult to envisage the circumstances in which someone in custody will be subject to specific restrictions on travel, as they will clearly be unable to travel as they are in custody anyway. I hope that that has clarified our position.

The provision covers a specific requirement under the mutual legal assistance convention and the Council of Europe's second additional protocol to transfer prisoners. There may be other categories of persons who are not allowed to travel, but we cannot request their transfer overseas on the basis of the agreements that we are implementing.

Lady Lady Hermon (North Down, UUP)

I take this opportunity—my first—to congratulate the Minister on her appointment. I wish her well.

I should like the Minister to clarify a couple of points, one of which relates to my intervention on the hon. Member for Somerton and Frome, who speaks for the Liberal Democrats. Can the Minister confirm whether the provisions of subsection (2) apply to those prisoners who were released under the Good Friday agreement? Secondly, can she clarify whether there is a limit on the time that a prisoner who leaves the United Kingdom to go to another requesting country can be out of this country? I am conscious of our human rights obligations to maintain rights to family life, even for prisoners.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I thank the hon. Lady for that intervention. I shall follow up the issue about prisoners who have been released on licence in writing. On time limits, the provisions of the Bill, and similar provisions for other member states, are in line with the European convention on human rights. The Bill has also been scrutinised by the Joint Committee on Human Rights.

The answer to the question on Northern Ireland is, no, the provisions do not apply. The people to whom the hon. Lady referred are not serving a sentence in prison, nor do they fall under any other category of subsection (2), so the subsection would not apply.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I am grateful for the Minister's reply so far as it went. I do not want to be unkind to her, but I think she misread the point of my question, and that is probably my fault for not having explained it fully.

My amendment clearly does not qualify those categories already contained in clause 47(2), but adds to persons

''(a) serving a sentence in a prison,

(b) in custody awaiting trial or sentence, or

(c) committed to prison for default in paying a fine''

the further category of those persons who are sentenced to an order that prevents them from travelling abroad. The Minister is right to say that that category does not fall within the letter of the mutual legal aid agreement. However, it raises the point that a request from a participating country for assistance in an investigation from someone who is subject to a travel restriction could not be granted. That person could not assist even if they wanted to,

because they would be subject to a restriction applied by a court in the UK. The only way that the person could assist would be if the court in the UK lifted the restriction. The clause is not as helpful as it might be in terms of mutual assistance.

I do not want to prolong the debate, but I should like the Minister and her officials to examine the record of previous debates in order to understand what I am struggling to say. There is a gap, which perhaps no one has any intention of filling—it is just bad luck if the crucial witness in an investigation happens to be football hooligan who has had his passport confiscated and cannot be transferred abroad. If that is the case, so be it. However, I thought that the intention was to provide maximum legal assistance. Increasingly, we are using novel forms of sentencing that do not include incarceration, or include it only as part of the sentence, and increasingly people will be subject to other orders of various kinds that will prevent them providing assistance.

I shall happily sit down if the Minister wants to make another speech, or I can move towards withdrawing my amendment. I should be interested to hear any further information that she may have.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I am afraid that I beg to differ on the necessity of the amendment, but before we complete consideration of this part of the Bill, I should say, in answer to the question on time scales and family life, that there is no time scale. Any time that a participator in such activities served in a prison would be deducted from their sentence, and would count as custody. It would be considered part of their custody arrangement, so there would be no add-on time to their sentence. Also, it should be remembered that the prisoner has to agree to the transfer.

Mr David Heath (Somerton & Frome, Liberal Democrat)

That does not take my argument any further forward. I have ground to a halt. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I beg to move amendment No. 145, in

clause 47, page 28, line 5, at end insert—

'( ) Before making any written statement under subsection (4), the prisoner must be offered access to legal advice on the legal consequences of a transfer'.

This amendment is at least easier to understand. Its meaning is self-evident; at least, I hope so. It simply requires the prisoner to be offered access to legal advice on the consequences of signing the written statement consenting to transfer. I think that in debate in the other place—I do not have the reference to hand—there was a suggestion that such advice would usually be available to prisoners. However, it should invariably be available. The prisoner might not avail himself of that opportunity, but clearly there are potential legal effects of travelling abroad to assist with an investigation. The prisoner does so as an expression of his own free will; there is no compulsion whatever for the prisoner to be transferred for that purpose, as we clearly understand from the Bill. Therefore, before they do so, they ought to have the benefit of legal advice as to whether that is a sensible thing for them to do or not, because the consequences

could be serious for them. That is exactly what my amendment says.

I hope that the Minister will, if not accept the amendment, at least give a clear undertaking that that legal advice will always be forthcoming before such a consent is signed.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

The amendment would ensure that the prisoner whose transfer is sought has access to legal advice. As the Government have made clear in relation to earlier clauses, we do not consider that any provision in part 1 merits automatic provision of legal advice, or that it should be included in the Bill. There is no such provision in relation to proceedings before our domestic courts.

I refer the hon. Gentleman to the Hansard report of an earlier sitting. In relation to clause 31, my hon. Friend the Member for Coventry, North-East (Mr. Ainsworth) said:

''Under domestic law, there is no obligation for anyone appearing as a witness to seek legal advice, nor is there any automatic right to it. It would not be right or consistent to require that a person has received legal advice in such circumstances, when the UK does not require that in respect of domestic criminal proceedings, either for witnesses, whether willing or unwilling, or even defendants, who are not covered by the provision.''—[Official Report, Standing Committee A, 12 June 2003; c. 141.]

Prisoners in those circumstances are of course free to seek legal advice in relation to any transfers, both under the 1990 Act and under the Bill. However, we do not believe that that should be set out in statute, and therefore we see no merit in having special arrangements for the new transfers.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I am rather disappointed in that response, because clearly a prisoner is in a different situation from other individuals in the country; he is in a prison, where he does not have free access to the same facilities as someone who is not in a prison. My amendment does not say that prisoners must be given legal advice; it says that they must have access to it. In other words, a prisoner should not be debarred from seeking legal advice before signing the important consent. That is a fundamental issue for a prisoner who is not entirely a free agent—at least, I hope that he is not, because if he is, prison would not be serving its useful function. A prisoner cannot make an informed consent if he does not at least have access to legal advice, regardless of whether he avails himself of it.

I am disappointed that the Minister has prayed in aid, clearly on advice, the different circumstances of the earlier clause that apply to a person offering to give evidence over a telephone. She was not referring to a person being taken to a different jurisdiction, which is covered by the clause, nor his movement and actions being restricted because he was a prisoner. It was not an analogous case.

I had expected the Minister to say that, of course, under the British Prison Service, there would be no question of a prisoner not having access to legal advice in circumstances in which he was being asked to consent to being taken to a foreign jurisdiction to assist with an investigation. I also expected her to say

that it was unnecessary for such matters to be written into the Bill, because such action is the invariable practice of the British Prison Service. I would have then asked her to put such a provision in the Bill because it would be an additional safeguard if a change came about in British prison practice. However, the fact that she did not say that worries me greatly.

Mr James Paice (South East Cambridgeshire, Conservative)

I support the hon. Gentleman and endorse the fact that we are talking about matters that are in a completely different league of seriousness compared with giving evidence by telephone. I draw his attention to the record of last Thursday afternoon's sitting when the former Minister made light of a similar amendment in respect of the telephone on the basis that we were talking only about giving evidence voluntarily over the telephone. We are now discussing a different problem and the Minister should note the imbalance between what her colleague said last Thursday and what she is now saying today.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I am grateful for the hon. Gentleman's support. The issue is important. We have not pursued many amendments to their logical conclusion in Committee, but I hope that the Minister will make a further contribution to our deliberations and explain the situation.

There is all the difference in the world between a person offering to pick up a telephone, albeit under the conditions of court proceedings, to give evidence from the security of his own country, and a prisoner who is taken from his cell to travel across the sea to another country and provide evidence in that jurisdiction. That person purports to have given consent to that procedure, but has not been given the opportunity of legal advice. I do not believe that the British judicial and penal system would allow that to happen. All I am really asking is for the hon. Lady to say that she does not believe that a prisoner would not be granted access to legal advice before signing the consent. She may wish to make another contribution to the Committee, so I shall sit down and let her do so.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I thank the hon. Gentleman for giving way. Prisoners can seek legal advice. It is just not automatically offered to all prisoners who are subject to transfer requests. There is nothing to stop them obtaining legal advice. I am referring to United Kingdom investigations in which for some reason a UK prisoner is needed as a witness overseas. As with any other UK investigation or prosecution, legal advice may be sought, but it is not automatically available. I stress that we are discussing UK investigations and UK requests.

Mr David Jamieson (Parliamentary Under-Secretary, Department for Transport; Plymouth, Devonport, Labour)

It is as simple as that.

Mr David Heath (Somerton & Frome, Liberal Democrat)

The hon. Gentleman says from a sedentary position that it is as simple as that. It may look like that from the Department for Transport but, without wishing to be unkind, I think that it is rather more complex than he suggests.

My amendment does not state that the prisoner must be offered legal advice: it states that

''the prisoner must be offered access to legal advice'',

which is different. The important point is that a prisoner who wishes to have legal advice before signing the consent must be able to have access to it. That is all that I am seeking to include in the Bill.

Does the Minister wish to intervene again?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

No.

Mr David Heath (Somerton & Frome, Liberal Democrat)

The Minister does not. That is a great misfortune. It means that I will have to seek press the amendment to a Division at some stage, and now is as good a time as any.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 12.

Mr James Paice (South East Cambridgeshire, Conservative)

I beg to move amendment No. 58, in

clause 47, page 28, line 9, leave out 'cannot' and insert 'may'.

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to discuss the following amendments: No. 59, in

clause 47, page 28, line 9, leave out 'cannot' and insert 'may in exceptional circumstances'.

No. 60, in

clause 47, page 28, line 9, after 'withdrawn', insert 'on medical grounds'.

No. 61, in

clause 48, page 29, line 3, leave out 'cannot' and insert 'may'.

No. 62, in

clause 48, page 29, line 3, leave out 'cannot' and insert 'may in exceptional circumstances'.

No. 63, in

clause 48, page 29, line 3, after 'withdrawn' insert 'on medical grounds'.

Mr James Paice (South East Cambridgeshire, Conservative)

I trust that the Minister will not be too flushed with her first success in a Division. She should not get too carried away and always turn against the logic of the arguments from Opposition Members.

Amendments Nos. 58, 59 and 60 address clause 47. Amendments Nos. 61, 62 and 63 are virtually identical and apply to clause 48. I will speak about amendments Nos. 58, 59 and 60 and the Committee can take it as read that the same arguments apply to the following three amendments to the following clause.

Amendment No. 58 can stand alone, but it can also go with amendment No. 60. However, amendment No. 60 on its own is meaningless; it requires amendment No. 58. Amendment No. 58 would make a fundamental change to the issue of consent in clause 47 with regard to being transferred abroad. Subsection (6) states:

''Such consent cannot be withdrawn after the issue of the warrant.''

There are no ifs or buts there, and I want to press the Minister as to whether the Government believe that there are no circumstances in which it might be withdrawn.

Amendment No. 58 would simply replace ''cannot'' with ''may'' so that consent may be withdrawn after the warrant has been issued. That would make it an open subsection but, nevertheless, it would meet the requests of the Law Society, which has raised this issue with us. It is opposed to a provision that makes giving consent an irrevocable act. Of course, it is understandable that we do not want prisoners to say regularly yes, no, yes, no; that would be making a mockery of the legislation. However, it is a long way from that situation to the clear irrevocability of subsection (6).

I also ask the Minister for an explanation of how the subsection sits with the Human Rights Act 1998. My reading of the provision is that such a statement of irrevocability might well be construed as going against the human rights of the person concerned, if they are not allowed to change their mind in any circumstances. I will be interested to hear how the Minister responds to that.

Amendment No. 60 would insert, after ''withdrawn'', the phrase ''on medical grounds''. Taken with amendment No. 58—the two would have to go together—subsection (6) would be changed to read, ''Such consent may be withdrawn on medical grounds after the issue of the warrant.'' The open-ended nature of ''may be withdrawn'' would be narrowed considerably if we inserted an amendment to say that consent can be withdrawn on medical grounds only. Civil justice almost requires that that should be included. Most people would accept that it would be reasonable for the issue to be revisited if someone were taken ill, or if an existing condition deteriorated after the prisoner had given consent.

Lady Lady Hermon (North Down, UUP)

I support the hon. Gentleman's amendment, but it is drawn too narrowly. I am thinking in particular of a prisoner who is to be transferred out of the United Kingdom into a different jurisdiction. Family members of those who give evidence in a serious criminal case can easily be intimidated. I speak from experience in Northern Ireland. People have been murdered because a family member was to be a witness in a case.

Mr James Paice (South East Cambridgeshire, Conservative)

I am grateful to the hon. Lady. If she bears with me, perhaps I can convince her of the wisdom of amendment No. 59, which I shall come to in a minute; that provides another way. We have tabled a menu of options, designed to test what has been described as the iron-clad wording of the subsection, and whether the Government really mean it to be as total and absolute as it is at present.

When the matter was debated briefly in the other place, the Government stated that an ill or mentally unstable patient would not be required to travel, as they would not be of much use anyway. However, that is giving someone else the duty of making a judgment on whether that is the case. I also think that it is pretty

offensive to suggest that someone who happens to be ill would not be of much use. It does not necessarily mean that their mental faculties would be impaired. Presumably they are not; that is why they are being transferred. I frankly do not accept that as a valid argument. The debate is about the individual's consent, not about someone else deciding whether a person should go. It is about whether the individual's consent, once given, should be withdrawn.

Amendment No. 59 is the other option on the menu. Perhaps the hon. Member for North Down (Lady Hermon) will have a preference for it. The amendment suggests that instead of talking about ''may'' or ''medical grounds'', we should leave out ''cannot'' and insert ''may in exceptional circumstances''. Obviously, it is not as wide open as ''may'', which we originally suggested in amendment No. 58, but it is certainly nothing like as narrow and restricting as the exception on medical grounds. I venture to suggest that the sort of circumstances that the hon. Lady has referred to, such as intimidation of family members, would qualify as exceptional.

The basic point that I am trying to explore with the Government through the amendments is why the Government believe that the giving of consent should be absolute. Nobody wants the clause to become inoperable though the individual withdrawing consent, giving it and withdrawing it again. There should, however, be some opportunity for that to be revisited in exceptional circumstances. I am relatively relaxed about whether the phrase, ''may in exceptional circumstances'' is included, or whether exceptions would be limited to medical grounds, although I note the hon. Lady's comments. I am equally concerned that to leave it as it is would be too absolute—it needs to be changed.

As I said earlier, amendments Nos. 61 to 63 are repeat amendments to be applied to clause 48 in slightly different circumstances.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

As has been outlined in the debate so far, the amendments seek to make the same changes to the clauses on outgoing and incoming requests for the transfer of prisoners—clauses 47 and 48 respectively. Those clauses deal with circumstances in which the transfer is made from one country at its own request when its investigations require a prisoner's presence in another country. It is envisaged that such circumstances would be very rare.

The clauses as they are currently drafted require the prisoner to provide written consent to any transfer before it takes place. That builds in, from the outset, some serious consideration by the person who is questioned about voluntarily agreeing to take part in a transfer. If such consent were granted, the arrangements for the transfer would be put in place by the authorities concerned. The Secretary of State would, after those arrangements were in place, issue a warrant authorising the transfer of the prisoner. After the issuing of the warrant, the prisoner would be unable to withdraw his consent. There would be a long process up to the warrant being issued, during which

the prisoner may still withdraw his consent to take part.

I understand what the hon. Member for South-East Cambridgeshire (Mr. Paice) said. He has put it on the record that he does not want to encourage a cat-and-mouse game being played with the Bill and the ability to transfer prisoners. However, we are concerned that the amendments might, in certain circumstances, allow a prisoner to withdraw his consent after the issue of the warrant. The Government appreciate that the amendments are intended to protect the rights of the prisoner. However, the Joint Committee on Human Rights did not comment on that issue. Furthermore, the Secretary of State is also bound by the Data Protection Act 1998. The amendments would create some potentially serious problems.

There are many steps in the process up to the final point at which the warrant is issued. As a general principle, we do not think a prisoner should be able to withdraw his consent after he has granted it, for the practical reason that if he withdrew his consent during the transfer, that would invalidate the warrant, which would mean that the prisoner was not held in legal custody.

All Committee members would agree that a prisoner who gave consent should not be transferred if, between the time of giving consent and the date of the transfer, he became ill and was unfit to travel. There might be other exceptional circumstances in which, even if the prisoner had consented, it might not, in the end, be appropriate for him to travel. For example, there may be a national emergency in the destination country. We do not, however, agree that it is necessary to provide for the prisoner to withdraw his consent in such circumstances. If that happened, the warrant simply would not be issued. The Secretary of State provides a final safeguard in such procedures.

The UK authorities would not transfer a prisoner if he were not medically fit to travel. He would not be transferred if a doctor did not to agree—even if he insisted that he were well enough to travel. In such circumstances there would be certain issues around the custodial arrangements and protecting the prisoner. Not only would it not be in the interests of the prisoner to be transferred if he were unfit to travel, but it would not be in the interests of the investigators.

There is no need to provide for the possibility of the withdrawal of consent. In the event that the prisoner became unfit to travel, the transfer would be suspended or cancelled. The warrant is generally issued at the very end of the process—just before the transfer would take place. It would not be used if the prisoner were unable to travel. Under such circumstances, to go through a long process, during which authority on different levels was sought, only for a prisoner to say at the final hour that he will not take part in the transfer, would perhaps undermine the Bill and the reasons for the transfer.

The clauses reflect the terms used in sections 5 and 6 of the 1990 Act, and the provision relating to consent reflects the position under that Act. So far as I am aware, there have been no practical problems in relation to that issue.

Mr James Paice (South East Cambridgeshire, Conservative)

I am grateful to the Minister for her reply. She stated that the Government do not feel that as a general principle people should be able to withdraw consent. I agree. As a general principle, they should not be able to withdraw consent, but there are exceptional circumstances.

Although I acknowledge the Minister's point that the warrant is produced only at the last minute—I am not sure how last-minute it is, but I accept that it would be towards the end rather than at the beginning of the process—there are still occasions when something occurs between the issuing of the warrant and its execution. Family intimidation, to which the hon. Member for North Down referred, is a clear example. The prisoner might get a message at the very last minute to say that if he attends something will happen to a member of his family. I am not suggesting that I want to allow people to change their minds by making up stories, but the Government need to reflect on whether they want to be as absolute as they are being at present. If an eventuality such as the one to which the hon. Lady referred occurred and something did happen to a family member, we know where the mud would stick: it would be on the Government who authorised the transfer.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I hope that I can help the hon. Gentleman. In considering the different circumstances under which a final decision not to transfer might be made by the Secretary of State, there could be a number of issues. One of the problems is coming up with all those examples of exceptional circumstances.

The warrant authorises the transfer of the prisoner only; it does not require it. That is why we do not want the validity of the warrant to be affected by withdrawal of consent. We shall not transfer if the Secretary of State considers it unwise, but we do not want to withdraw the warrant and go back to the beginning of the process. If certain circumstances arose—I have mentioned a few, such as a national emergency in the country of destination or a person being unwell and unfit to travel; the hon. Member for North Down suggested another circumstance—there is an opportunity for the Secretary of State to act. We want to ensure that at the end of the process there is a safeguard, so that we do not undermine all the work that has been done preceding the warrant's authorisation.

Mr James Paice (South East Cambridgeshire, Conservative)

I am grateful to the Minister for trying to clarify the situation. There remains the fundamental point about the decision being that of the Secretary of State or somebody acting on his behalf, or that of the prisoner who wants to withdraw their consent. I envisage a situation where threats have been issued against the prisoner's family, but the Secretary of State refuses to take them seriously. That is not, by any means, unimaginable.

Lady Lady Hermon (North Down, UUP)

I can give the hon. Gentleman a concrete example. I am referring to a young man, the late Alan McCullough. He was only 21 . He was encouraged to come back to Northern Ireland by paramilitaries who assured him that he would be safe. He was taken prisoner, tortured and executed. At his

funeral yesterday, the same group threatened his mother, sisters and partner—all women—with execution if they gave evidence in a court under any jurisdiction.

Mr James Paice (South East Cambridgeshire, Conservative)

That is a telling intervention. I am grateful to the hon. Lady, as what she says gives considerable substance to the concerns that I have expressed. It is clear that the Minister will not accede to my amendments or even to the principle, so there is little point in pushing it at this stage. Clearly, she has not yet got to the point that her predecessor reached, who used to stand up and say that he had been given a load of garbage to read out. He said words to that effect last week, which is probably why he was promoted. It is a practice that we should encourage.

Mr Nick Hawkins (Surrey Heath, Conservative)

Given that the previous Minister said that, it strikes me as extremely appropriate that he went back to the Whips Office.

Mr James Paice (South East Cambridgeshire, Conservative)

Yes. Clearly, I cannot expect the Minister suddenly to change tact. It would be unrealistic of me to do so.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I remind the hon. Gentleman that what we are facing under the clause is exactly what we faced when discussing the 1990 Act that the Conservative party passed. Such transfers are in respect not of participating in proceedings, but of assisting UK investigations.

Mr James Paice (South East Cambridgeshire, Conservative)

I am grateful to the Minister. I was fully aware of what she meant. We have mentioned the 1990 Act when discussing almost every group of amendments since we started proceedings a week ago. It seems that, when the Government do not want to change the Bill, they say, ''Well, this was in the 1990 Act'', and then they change that Act in other areas because they believe that it needs changing. The Minister's predecessor paraded that odd argument last week. I hope that it will be the last time that we hear it while she is responsible for the Bill.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

Don't hold your breath.

Mr James Paice (South East Cambridgeshire, Conservative)

Well, perhaps the message will get through to those who write Ministers' briefs that such an argument is pointless. We all accept that, after 13 years, legislation needs to be re-examined. If the 1990 Act were perfect, most of the Bill would not be before us. It has had to be drafted because of the need to change provisions to meet the new conventions that we have signed up to during the intervening period.

I shall not pursue the issue now. With utmost respect for the arguments advanced by the Minister, I hope that she will understand the worry that is felt about such matters. The hon. Member for North Down has described particular circumstances that add immense substance to our argument. We may wish to return to it later in our proceedings, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 ordered to stand part of the Bill.

Clauses 48 to 51 ordered to stand part of the Bill.