Clause 100 - Removal of prisoners from the United Kingdom
Legal Aid, Sentencing and Punishment of Offenders bill
6:45 pm
Helen Goodman (Bishop Auckland, Labour)
I beg to move amendment 415, in clause 100, page 78, line 24, at end insert—
‘( ) The Secretary of State shall take all reasonable steps to inform the prisoner in writing in his own language of the effect of an order for the prisoner’s removal made pursuant to this section.’.
Jim Sheridan (Paisley and Renfrewshire North, Labour)
With this it will be convenient to discuss the following: Amendment 416, in clause 100, page 78, line 36, at end insert—
‘( ) The Secretary of State shall have a duty to notify the appropriate authority of that country or territory to which the prisoner is being returned of—
(a) the offences for which the prisoner was convicted;
(b) the length of sentence the prisoner has served.’.
Amendment 410, in clause 100, page 78, line 40, at end add—
‘(6) The Secretary of State shall not exercise his power under subsection (3) unless he makes a declaration that any offender repatriated under this section is not at risk of torture or persecution.
(7) A declaration must be in writing and be published in such a manner as the Secretary of State considers appropriate.’.
Amendment 417, in clause 100, page 78, line 40, at end insert—
‘( ) The Secretary of State shall have a duty to consider the impact of a removal under subsection (3) on any child of the prisoner liable to removal.
( ) In exercise of this duty the Secretary of State shall make a declaration that in his opinion any rights of the child under the United Nations Convention on the Rights of the Child are not infringed.
( ) A declaration must be in writing and be published in such a manner as the Secretary of State considers appropriate.’.
Helen Goodman (Bishop Auckland, Labour)
During the Conservative party conference last week, there was much coverage of the disagreements in the Cabinet about the removal of foreign prisoners, which was presented as a joke. That matter is not a joke; it is a very serious one, which raises some difficult issues. Of course, sending foreign prisoners back to their countries is largely a sensible policy, and it must be done expeditiously. As hon. Members will know, the previous Labour Government negotiated an agreement with the European Union to increase the number of people who could be sent back.
Helen Goodman (Bishop Auckland, Labour)
As I was saying, it is important to take a proper approach to the removal of foreign prisoners, which is a tricky issue, and the Government only partly acknowledge that in their explanatory memorandum.
I know that the Minister is interested in sending in text messages, but I am about to ask him a question. Last week, there was a big debate between the Secretary of State for Justice and the Home Secretary about the removal of foreign prisoners and the interaction between doing so and article 8 of the European convention on human rights, which concerns the right to a family life. From what the Secretary of State for Justice said, it was not clear whether he is aware of clause 100. I am assuming that the clause is not intended to override article 8, but I would be glad if the Minister responded specifically to that point. The only human rights issues that are referred to in the explanatory memorandum, which, as I have said, is rather inadequate, relate to whether the provision would discriminate against British nationals who are victimised on discrimination grounds. There is no mention in the explanatory memorandum of the issue that was the source of the most heated debate at the Tory party conference, as far as the rest of us could discover, so I ask the Minister for an answer.
Another question is whether there is not a loophole in respect of citizens of other member states and what happens to them if they return after having been removed, given that I am not sure whether the Minister has proper records of who is coming in and going out of the country.
Amendment 415, which is totally reasonable and obvious, states:
“The Secretary of State shall take all reasonable steps to inform the prisoner in writing in his own language of…an order for the prisoner’s removal”.
Obviously, being removed from the country is a very significant change, and it is only reasonable that a person should be properly informed in writing in a way that they can understand.
It is also important that Secretary of State should
“notify the appropriate authority of that country…to which the prisoner is being returned”,
because if people on indeterminate public protection sentences are returned at the end of their tariff, but before a parole board and without undertaking a parole board assessment, the Minister will not be in a position to know whether that person presents a risk. I suggest that relations with other countries will nosedive if people are released who might commit crimes in other countries, in that if they had been British citizens they would have been kept in prison because they would have had a full parole board assessment, but as they were foreign, they were sent away. I suggest that the Secretary of State should have a duty to notify the appropriate authority in the other country, which seems to be the only reasonable way to behave, and I would expect other countries to deal with us in the same way.
Amendment 410 states:
“The Secretary of State shall not exercise his power…unless he makes a declaration that any offender repatriated…is not at risk of torture or persecution.”
It is also unclear whether the clause can be applied to countries with which we have not signed bilateral agreements or which are not party to international agreements on prisoner transfers. I understand that our current international agreement covers not only European Union countries, but Libya, so not all of those countries will have fantastic human rights records. Furthermore, I do not understand from the drafting of the clause whether it means that it applies to new countries, where we do not know their human rights records, so we have raised that concern by tabling amendment 410.
Finally, amendment 417 returns to the issue of the family rights under article 8. Here my concern is over the rights not of the offenders themselves, but of any children the offender may have who reside in this country. Those rights could be breached if their parent was sent to the other side of the globe. I am not saying that we should not have a proper policy for removing foreign prisoners; I think that we should, which is why the Labour Government took steps to improve the situation. None the less, these are sensitive matters.
Jessica Lee (Erewash, Conservative)
When balancing article 8, it is right that a court will always consider the rights of a parent to parent their own child and also the rights of a child to have a family life. That balance is always taken into account by any court when it considers article 8.
Helen Goodman (Bishop Auckland, Labour)
Yes, but there is problem if we pass this piece of legislation. Unless we have some proper checks and balances in the administration of the system, the matter will not be considered by a court. My concern is with the children of the offenders rather than just about the offenders themselves. I hope the Minister will respond to some of those points.
Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)
It will come as no surprise to the hon. Lady that my right hon. and learned Friend the Lord Chancellor and Secretary of State for Justice is not only keenly aware of this clause in the Bill but a strong supporter of it. Having sat and discussed the matter with him as we prepared this Bill, I think I can reassure her on that point. She may also have noticed that he has signed the declaration on the front of the Bill, which makes it clear that the measure is compliant with the European convention on human rights.
Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)
Let me provide a detailed response to the hon. Lady’s points. She asked for those general points to be addressed and I have done so. These amendments apply to clause 100, which provides a power for the Secretary of State to remove from the United Kingdom those foreign national prisoners who are serving life or indeterminate sentences and who have served the minimum term, or the tariff, set by the court.
Amendment 410 would ensure that the Secretary of State does not exercise his power to remove a foreign national prisoner under this provision unless he makes a written declaration that they will not be returned to serve their sentence in a country in which there is a risk of torture or persecution. Amendment 417 effects a similar requirement in relation to children, but the Secretary of State must make a declaration that, in his opinion, any rights of a child of the prisoner being removed under this clause are not infringed under the United Nations convention on the rights of the child. I should make it clear that prisoners removed under this provision are not being repatriated to serve their sentence in their home country, as the hon. Member for Bishop Auckland implied.
Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)
I am grateful for that clarification.
Clause 100 provides a power for the Secretary of State to authorise the removal from prison for the purposes of removal from the United Kingdom of those offenders who are subject to deportation or administrative removal from the United Kingdom without a Parole Board recommendation for release. These are offenders who have no rights to remain in the United Kingdom. The provision simply allows removal to take place as soon as the prisoner has served the minimum term imposed on him by the court.
We need to make it clear that clause 100 is not a deportation power. It is about the time at which the UK Border Agency is able to deport someone. It takes account of article 8 issues when making the decision on whether to deport. Of course, the offender has rights to appeal against deportation that are not affected by the clause. Deportation cannot take place if it would breach the United Kingdom’s international obligations under, for example, the ECHR or the refugee convention. The rights of the individual are assessed in all cases, and the UK Border Agency concedes deportation where it is believed that those rights would be breached. Furthermore, in all cases where deportation is pursued, an independent in-country right of appeal is given—in those cases where human rights or asylum claims are raised.
Similarly, under section 55 of the Borders, Citizenship and Immigration Act 2009, the UKBA has a duty to have regard to the need to safeguard and promote the welfare of children who are in the UK. Similarly, under section 55 of the Borders, Citizenship and Immigration Act 2009, the UKBA has a duty to have regard to the need to safeguard and promote the welfare of children who are in the UK. The best interests of the child must be a primary consideration when making the decision to deport. The impact of the removal on the prisoner—
Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)
Before the Division, I was saying that the impact of the removal on the prisoner or any dependents is taken into account by the UKBA when considering whether to deport, and the prisoner has a right of appeal. If the prisoner is not subject to deportation or administrative removal from the UK, the provision outlined in clause 100 cannot apply. Therefore, at the point at which these provisions come into play, the matters raised by the hon. Member for Bishop Auckland have already been taken into consideration.
It is important that prisoners understand the implications of deportation from the UK. To that end, a leaflet has been produced for foreign national prisoners who are facing deportation, providing general guidance on deportation, appeal rights and where to go for further help or advice. Since 1 April 2010, it has been sent to foreign national prisoners who are assessed at an early stage as meeting deportation criteria. The leaflet has been translated into 17 languages. In addition, copies of 15 of the most commonly used generic letters and documents used in deportation and removal proceedings have been translated into the top 20 languages spoken by foreign national prisoners. These documents have been developed by UKBA and made available for use in all prisons.
Our prisons hold offenders from more than 150 different countries, and it is simply cost-prohibitive to provide all documents in all languages used in those countries. We believe that the current provisions ensure that the overwhelming majority of prisoners can access documentation in a language they can understand. Where that is not the case, local arrangements will be made to ensure that the prisoner understands the deportation process. That may be done through local translation services, or translation by staff or other prisoners with a common language.
We do not believe that the disclosure of criminal information on removal should be a matter for legislation. That attends to the point raised in amendment 416. Any disclosure of such sensitive and personal information will need to be necessary and proportionate, and the UK criminal justice agencies, the UKBA and other partners will be able to consider the cases where there is a public protection argument for disclosure. While the UKBA does not routinely disclose conviction and criminality information or data on individuals being deported to the receiving country, that has been done where it can be justified for public protection reasons. I hope that the hon. Member for Bishop Auckland is reassured on these points and will not press her amendments to a Division.
Helen Goodman (Bishop Auckland, Labour)
I am grateful to the Minister for his response. It was important to raise these issues and to have some discussion of them. We would not want to be accused of being caught cat-napping, after all.
I beg to ask leave to withdraw my amendment.