With this it will be convenient to discuss the following amendments:
No. 5, in
clause 12, page 8, line 42, leave out
'in the interests of maintaining security or good order'
'because of his serious misconduct or with his consent, for his own protection, or, in the interests of maintaining security'.
No. 19, in
clause 12, page 9, line 4, at end insert
'where a prisoner is transferred under subsection 2A, the jurisdiction which imposed a custodial sentence will be responsible for determining the date of release of the prisoner except where this is delayed by reason of his misconduct.'.
No. 20, in
clause 12, page 9, line 4, at end insert
'because of his serious misconduct or, with his consent, for his own protection.'.
No. 21, in
clause 12, page 9, line 22, at end insert—
'The Secretary of State shall lay before Parliament a report each year giving the number of orders made under section 2A of Schedule 1 to the Crime (sentences) Act 1997 (c.43) (transfer of prisoners within the British Islands).The report shall set out the reasons for which the orders were made.'.
The Minister will be glad that I am now breaking my silence. The probing amendment No. 27 is the most interesting in the group, as it would require a report. It arises from the recent history of Her Majesty's prison Maghaberry, which was described in the 2002 report of the chief inspector of prisons as the most complex and diverse prison establishment in the United Kingdom, and from the legacy of the Maze, with its history of segregating paramilitary prisoners.
After the closure of the Maze, Maghaberry made significant progress with an integrationist regime, but it was not universally welcomed, especially by the paramilitaries. Protests and assaults began in 2001 and escalated until last summer, with a campaign against enforced integration across the sectarian divide on the ground that it put individuals' safety at risk.
On 7 August 2003, the Secretary of State initiated the Steele review, which reported on 8 September and recommended a new regime of separation, not segregation, for paramilitaries.
I shall not go into the enormous ramifications of that regrettable decision—regrettable in the widest sense. I understand entirely the pressures on Ministers and the prison service. It is a matter of regret that such a decision had to be taken. I shall not go into the ramifications because we have only one concern in the amendments: that the discipline of the new separated regime and the primacy of staff control that cannot and must not be compromised. The line must be held at separation and there must be no return to the sort of regime that prevailed in the Maze.
Paramilitaries are already trying to chip away at the regime. They main issue concerning disciplinary sanctions is what the staff can apply to hold that line. Governor McAleer put his finger on the problem when he gave evidence to the Select Committee on 12 November 2003. He said:
''If you have people who will commit themselves to hunger strike and are prepared to die, if you have people who are prepared to go on a dirty protest and you took one of them out and you said to him, 'I am going to stop your remission now' I do not think that plays any part in their thinking really. Certainly we would welcome any sort of punishment for people not obeying the rules and we will look at that.''
A new sort of punishment is now set out in the Bill—the power to transfer. There is no question of transferring in Northern Ireland because there are only three prisons, only one of which—Maghaberry—is capable of holding such prisoners. The possibility exists of transferring to England or Wales, but transferring to Scotland would require a Sewel motion or action by the Scottish Parliament and that is not an option in the Bill.
I understand that the Sewel motion has been through the Scottish Parliament.
May I clarify another point? The hon. Gentleman referred to punishment, but the clause was designed not to provide punishment but to maintain security and good order, which is a different issue.
I am not sure that that distinction is wholly valid. I accept that there is a measure of discretion, and obviously the safety of individuals is involved, but I suggest that that was not the opinion of the Select Committee. In paragraph 80 of its second report, it said:
''We believe that the proposal to transfer prisoners to other jurisdictions as a sanction of last resort is very dangerous, and could easily be manipulated by the paramilitaries in their campaign to undermine the Northern Ireland Prison Service and, ultimately, the British Government. We caution against its use in the strongest possible terms.''
That language and the discussion that led to that conclusion makes it clear that the Select Committee feared that the scheme would be used as a sanction of last resort. It is precisely because of that conclusion
and its huge reservation about the matter that I tabled the amendment asking for the Government to provide a report of the number of and the reasons for which those transfers have been made. If the situation is as the Minister says—this is a question of good order—I cannot see why he would want to resist the amendment. It is a probing amendment and I am interested to hear the Minister's logic and an exposition of precisely how the power will be used and how the Government would react to the manipulation by paramilitaries in their campaign to undermine the Prison Service of Northern Ireland, which the Select Committee draws attention to.
I rise to support amendment No. 5. It is not sufficient to say that the reason for using this clause is the maintenance of good order. If a decision is taken to move a prisoner, it should be clear that that is done either to protect him or because of his misconduct, and that it relates to the conduct of the individual, rather than the overall governance of the establishment.
There is also a wider point to be made. As a general principle, it is preferable for people to be imprisoned close to their home so they continue to have access to visitors and family and maintain those links. It would be virtually impossible for a prisoner who was transferred from Northern Ireland to England to see their family to the same extent. For that reason, it is important to maintain the link between the transfer and the conduct of the individual, rather than the transfer and the conduct of general governance.
The hon. Member for New Forest, West identified amendment No. 27 as being the crucial one in its group. It would provide that the Secretary of State should exercise discretion in considering whether a prisoner should be transferred to another jurisdiction. I hope to be able to persuade the Committee that that discretion already exists and the amendment is unnecessary. Clause 12(2) says that if it appears to the Secretary of State that a prisoner should be transferred, he
''may make an order for his transfer''.
That is where the element of discretion comes in. I hope that the hon. Gentleman understands that. The
Secretary of State has to satisfy himself that such an action is both necessary and proportionate to the risks that are posed by that individual. Once he is satisfied that the case is made, he may make an order for transfer to another jurisdiction.
The hon. Member for Orkney and Shetland asked about the wishes of the individual. The power can be used only if it appears to the Secretary of State that the prisoner should be transferred in the interests of maintaining either security or good order, with the case being decided on its individual merits. I am sure that we all accept that the maintenance of good order is a vital measure in providing an environment that is safe for both prisoners and staff. The transfer power is required for the protection and safety of prison staff and other prisoners. There may be cases where an individual has not been charged with serious misconduct but is responsible for planning, directing and orchestrating such actions by others and poses a threat in that way. It is important that when the Secretary of State has credible information that a prisoner is engaging in and planning such action, which will pose a threat to security or good order, he can act to ensure the safety of prison staff and other prisoners. Making a transfer order might be appropriate in such circumstances.
Under the amendment, such pre-emptive action could not be taken. We are making arrangements to ensure contact with family and the facilitating of family visits to such prisoners. Accordingly, I hope that the hon. Gentleman will withdraw the amendment. The clause arises from the Steele committee and is necessary. The amendments will either not achieve the purpose that is intended or frustrate the main purpose of the clause.
The Minister has put his finger on it with his example of the person who is not guilty of an offence but is clearly the ringleader who is masterminding, organising others and planning—
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned accordingly till this day at Two o'clock.