§ 12.52 p.m.
§ Lord Elton
My Lords, I beg to move that this Bill be now read a second time.
The Government believe that the aims of this Bill will command wide support, not only in your Lordships' House but also in another place and indeed in the country at large. The humanitarian arguments in favour of the voluntary repatriation of prisoners are largely self-evident. A person who is imprisoned in a country which is not his own suffers considerably more from his imprisonment than do fellow prisoners who are natives of that country. Foreign prison conditions may be harsher than those in this country, and foreign practices and foreign languages can aggravate them very significantly. If countries can come to arrangements which enable such prisoners to be transferred to their home countries to serve their sentences there, then the requirements of criminal justice in the country where an offender has been convicted can be met without subjecting the offender to hardships not justified by his crime or intended by the legislation under which he was sentenced.
Those are among the considerations which have prompted the Government to introduce this Bill at the earliest opoportunity. The Bill is a new departure in the administration of criminal law and it introduces an entirely new form of procedure. It may help your Lordships, therefore, if I begin by describing what has led to our bringing these proposals to Parliament and the circumstances in which we do so.
International moves towards arrangements for the repatriation of prisoners began to gather momentum in the 1970s when the United States of America and Canada concluded a bilateral treaty and opened 752 negotiations with other countries. The principle was endorsed at a Commonwealth Law Ministers' meeting in 1977 and at a Council of Europe conference of Ministers of Justice in 1978. This growing international interest led to the setting up in 1978 of a United Kingdom Interdepartmental Working Party on the Repatriation of Prisoners, which reported in 1980. It suggested a scheme for United Kingdom participation in repatriation agreements with other countries. These arrangements would be based on the need for the consent of both the states involved and of the prisoner. The working party's proposals received almost unanimous approval from the many organisations and individuals who submitted their views on the report, and it enabled the United Kingdom to contribute constructively to discussions in the Council of Europe, which began in 1980, with a view to preparing a multilateral convention.
The Council of Europe Convention on the Transfer of Sentenced Persons was eventually approved and opened for signature in March of this year. Its terms are closely in line with the recommendations of the United Kingdom working party and include provision for the three-way consent of the two states and the prisoner. The convention has been specifically devised with the aim of attracting accession by states from outside the Council of Europe, as well as within it.
On 29th July this year my right honourable friend the Home Secretary announced the United Kingdom Government's intention to sign the Council of Europe Convention in August and to introduce general enabling legislation as soon as possible The convention was accordingly signed on behalf of the United Kingdom on 25th August and the present Bill was duly introduced in your Lordships' House on 24th November. The convention has now been signed by 14 of the 21 Council of Europe states in addition to Canada and the United States of America, but no state has yet ratified it. It will come into force three months after it has been ratified by three Council of Europe states.
Those are the antecedents of the Bill. Before I turn to its provisions I think I should explain our general approach to this legislation. First, the Bill does not in itself have the effect of implementing the Council of Europe Convention. It provides general enabling powers, so that the Government will be able in due course not only to ratify this convention, but also to conclude such other agreements as may be necessary to effect the transfer of prisoners. Secondly, it follows from this that we have had to strike a balance between the requirements we have judged necessary to put on the face of the Bill and those which we think are best left to the discretion of the Secretary of State in dealing with the circumstances of the particular case. This is a difficult balance to strike, and I hope your Lordships will feel that we have got it about right.
In considering that issue, I hope your Lordships will realise that the Bill is designed not only to enable us to accede to the convention. It will also provide the provisions under which we shall be able to come to terms with individual states which do not wish to accede to the convention and whose laws and traditions may be very different from ours but from whose prisons we wish nevertheless to retrieve a British citizen to serve his term in the United Kingdom. The 753 citizen of course, will never be transferred without his consent and he will therefore be the ultimate judge as to whether the Secretary of State has or has not exercised his discretion wisely.
The drafting of this Bill is at certain points somewhat complex. I seem to be saying that somewhat often this week. This is largely because this legislation interacts with a considerable number of existing statutes and has implications for a number of others. It is important, however, that the scope of the legislation should be as wide as possible and that we should attract all the necessary powers to enable us to be as flexible and humane as possible in applying it. The detail of the Bill is therefore, as I say, complex in places but the underlying structure is clear.
I now turn to the actual provisions of the Bill. Clause 1 deals with the circumstances in which the Secretary of State may issue a warrant for the transfer of a prisoner. The interdepartmental working party took the view that the authorisation of enforcement in this country of a sentence imposed in another was essentially an administrative, rather than a judicial, function and need not involve the criminal courts. It therefore proposes that legal authority for the detention of a prisoner in the United Kingdom on the basis of a sentence passed by an overseas court should be provided by a warrant by the Secretary of State. We share that view. Clause 1 accordingly provides for such warrants and the conditions that have to be satisfied before they are issued. It similarly provides that a Secretary of State's warrant shall provide the legal authority for the transfer of a prisoner from the United Kingdom to serve his sentence in his home country.
Before a warrant can be issued there will need to be arrangements between the United Kingdom and the other country concerned for the transfer of prisoners. These arrangements may be a multilateral agreement like the Council of Europe Convention, a bilateral treaty or an ad hoc agreement relating to a particular prisoner or group of prisoners where a permanent agreement is not possible or may not be desirable. Such international arrangements will be for the Government to negotiate, sign and ratify, and will not need to be incorporated in the law of the land.
The other main prerequisites for the issue of a warrant are the consent of the Secretary of State and of the appropriate authority in the other country, and the consent of the prisoner. An important recommendation of the working party was that the United Kingdom should aim for repatriation agreements which provide for both states concerned to have unfettered discretion to withhold consent to a particular transfer. There may well be people in this country, or abroad, who have doubts about the exercise of this discretion. I am glad to offer them this reassurance. The Government's firm intention is that the Secretary of State will not normally withhold consent to a particular transfer unless he considers that there are compelling reasons of public policy for doing so.
The consent of the prisoner is another fundamental requirement recommended by the working party and based on Canadian and American experience. It is an important feature of the Council of Europe Convention. Moreover, the Government's aim in introducing the legislation is purely humanitarian, and we therefore see the prisoner's consent to his transfer 754 as essential. There may, however, be the rare case when it is in the prisoner's best interests for a decision to be taken on his behalf, if there is serious doubt about his ability to give a meaningful consent because of his age or mental or physical condition.
Generally, prisoners transferred to the United Kingdom will need to be British citizens. Where an international agreement allows, however, the Secretary of State is to have discretion to approve the transfer of other prisoners who have close ties with the United Kingdom.
For the purposes of the Bill, "prisoner" includes any person, of any age, who is detained in a prison, a hospital or any other institution as a result of an order of a court or tribunal exercising criminal jurisdiction. Children and mentally disordered offenders are therefore included.
Clause 2 of the Bill deals with the working of a warrant for the transfer of a prisoner from the United Kingdom; that is, the outward traffic. The Secretary of State's warrant will provide authority for taking the prisoner to the point of departure from the United Kingdom (which will normally be an airport), for handing him over to the escorting officer of the other country and for his removal from the United Kingdom by that officer.
A prisoner's transfer will not affect the validity of the sentence which he is serving in the United Kingdom. That sentence will remain enforceable until such time as it is deemed to have been served by completion of the sentence in the other country. If the prisoner should escape, therefore, and he found again in this country, he could be taken into custody again on the strength of the original order of the court.
Where, under the terms of an agreement, a prisoner who has been transferred from the United Kingdom is discharged in the other country earlier than he would have been if he had stayed here, a procedure is needed to ensure that, should he return here, he will not be subject to arrest and detention under the original order of the court. A procedure is also needed to enable a person released on licence in another state to be similarly treated should he return to the United Kingdom. The Bill provides accordingly.
Clause 3 provides the wide powers needed for dealing with prisoners transferred to the United Kingdom; that is, the inward traffic. The Secretary of State's warrant in those cases will authorise the bringing of the prisoner to the United Kingdom, his delivery to a specified prison or other institution, and his detention within the United Kingdom. The Secretary of State will have power to include in a warrant any custodial order which is available to a criminal court in the relevant part of the United Kingdom. subject to the terms of the relevant international agreement. That is a passage in the Bill which I find difficult to follow, and I hope that those words are helpful. That will give the Secretary of State a very wide power, but it is one that is essential if the Bill is to have the effect many people want.
In the case of transfers under the Council of Europe Convention, for instance, the sentence to be served by a prisoner on transfer to the United Kingdom will be limited to the maximum term that could be imposed on conviction for a similar offence in this country. It 755 cannot be assumed, however, that all states will be willing to have their sentences limited in this way. To get an agreement with some states we may need to agree to enforce their sentences in full. This is an issue to which I shall return in a moment. Under the convention a condition of transfer will be that the crime for which the person has been sentenced to imprisonment must be an offence in both states—that is, under the convention.
It may not be appropriate, however, for all agreements to contain such a "double criminality" rule. It may be desirable to have a repatriation agreement with a country where custodial sentences can be imposed for acts which are not criminal in this country—and we can all think of such acts. An obvious example is an alcohol offence in a Moslem country. Given that we should otherwise not be able to get such prisoners back to the United Kingdom, we would need to be prepared to honour the sentence imposed in such a country, even if the act would not have been an imprisonable offence, or a crime at all, in this country. We should be able to do it, but not be compelled to do it.
The Government fully recognise that the use of the warrant procedure in such cases may cause some concern. Clearly, however, it is the Government's hope and expectation that there will be only a very small number of cases in which we have to contemplate repatriation in circumstances where the sentence. or indeed the offence itself, does not accord with our practice. Without such a power, however, the Government may be unable to help the most deserving cases. I must emphasise here, not only that the discretion would be exercised with the utmost care but that the period of detention authorised by the warrant will attract the normal United Kingdom provisions of remission and parole.
Finally, there is, in those circumstances, the ultimate safeguard of the prisoner's own consent. We have concluded, therefore, that the Secretary of State's powers to order detention by warrant should be flexible enough to accommodate such variations as may be necessary in the light of the terms of particular agreements.
Orders for detention contained in transfer warrants will have the same effect as orders of criminal courts, except that they will not be subject to appeal. Given that a prisoner will consent to transfer only after having been fully informed of the sentence to be served following transfer, provision for appeal is not necessary. The sentence ordered by a warrant will be served in the same way as a sentence of a court, and under the terms of Clause 3(3) and of the schedule to the Bill will be subject to the normal arrangements for remission and release on licence. The sentence will start from the date of the prisoner's delivery to the institution specified in the warrant. In calculating one-third of a prisoner's sentence for the purpose of eligibility for parole, however, the warrant may provide that the time served before transfer will be taken into account. A transferred prisoner will be required to serve after transfer at least the normal minimum qualifying period for consideration for parole, which is currently 12 months but, I think your 756 Lordships would agree, should be reduced to six months.
It is recognised by most countries that, in order to bring about acceptable transfer arrangements, there must be some flexibility about enforcement of sentences in the receiving country to take account of variations in criminal law and practice from country to country. It seems to be generally accepted that following transfer the enforcement of a sentence, including arrangements for remission and conditional release, should be in accordance with the law and practice of the receiving state.
That brings me again to the subject to which a moment ago I said I would return. It is on the question of fixing, at the time of transfer, the length of sentence to be served in the receiving state that some countries are more sensitive than others. Certain countries, for instance, will not agree to their sentences being subject to any judicial resentencing process in the receiving state. As I have already mentioned, we have been able to agree within the Council of Europe, for the purposes of the new convention, that the sentence to be served on transfer should be subject to the maximum term available for a similar offence in the receiving state.
To achieve transfer agreements with some countries, however, we shall need to be prepared to enforce their sentences in full. We hope that the problems arising with the exceptionally long or indeterminate sentences that can be imposed in some countries can be resolved in the course of negotiations. We may obtain agreement, for instance, to a 99-year sentence being treated as a life sentence, and for a sentence of, say, five to ten years being treated as a determinate sentence in the light of actual practice in the sentencing state.
The interdepartmental working party recognised, and it was accepted in the Council of Europe negotiations, that occasionally it may be necessary for a transferred prisoner to be returned to the sentencing state for the purpose of an appeal hearing. Although transfers would not generally take place until the normal time limit for appeal had expired, or any actual appeal had been dealt with, most countries have arrangements for appeals outside the usual time limits, so that justice can be done in the light of new evidence. Clause 4 of the Bill accordingly provides for the temporary return of a transferred prisoner in such circumstances and for his transfer both ways to be authorised by a single warrant.
Legal authority for custody of a prisoner in the course of his transfer and for the arrest of an escaped prisoner must also, of course, be provided for. This is the purpose of Clause 5 of the Bill. A prisoner will be deemed to be in the legal custody of the Secretary of State while he is being escorted in the course of a transfer authorised by a Secretary of State's warrant and while he is within the United Kingdom or on board a British aircraft, ship or hovercraft. The concept of being in the custody of the Secretary of State has been adopted because it is considered more appropriate for any challenge to the legality of custody in a particular case to be addressed to the Secretary of State than to individual escorting officers. This approach provides protection both for British escorting officers and for escorting officers from another country while within British territorial 757 jurisdiction. As is normal for the escort of prisoners, the clause provides for British escorting officers to have the powers, authority, protection and privileges of a constable.
Clause 6 of the Bill empowers the Secretary of State to revoke a transfer warrant completely or to vary it by revoking it and issuing a new one. This power is necessary so that the Secretary of State may comply with the terms of repatriation agreements. Like the Council of Europe Convention, these will generally acknowledge the right of the sentencing state to review the original sentence on appeal or to grant a pardon, and will require the decision of the sentencing state in such cases to be honoured in the other state.
The cost of introducing arrangements for the repatriation of prisoners is a matter which we have had to consider very carefully. Sending prison officers overseas to escort British prisoners to the United Kingdom will create additional expenditure for the prison services of the United Kingdom, in terms of both officers' time and travelling expenses. We hold the view, however, that the humanitarian arguments for the repatriation of prisoners justify the additional expenditure. We have, however, had to bear in mind that, when British tourists are stranded abroad, our consular service help them financially on condition that money loaned for their return to this country is refunded. It would be anomalous if prisoners being transferred to the United Kingdom were treated more favourably than law-abiding distressed British subjects. Clause 7 of the Bill therefore requires the Secretary of State to make such arrangements as he thinks fit for recovering the prisoner's travel costs from the prisoner or someone acting on his behalf, either before or after the issue of the transfer warrant. Clauses 8 and 9 of the Bill deal with such technical matters as interpretation, commencement and extent. The schedule deals with the effect of the Bill on various other enactments; perhaps the most important of its provisions is paragraph 2 which deals with arrangements of release on licence.
Having made those comments about the content of the Bill, I should perhaps add something about the practical implications. First, the question of the numbers of prisoners likely to be eligible for transfer. There is as yet no firm information about the number of foreign and Commonwealth prisoners in United Kingdom prisons who might be eligible for repatriation under the Council of Europe Convention or other similar agreements which might be negotiated because prison statistics record only country of birth, not nationality. The latest estimate, however, is that there are about 200 from Council of Europe states, Canada and the United States of America, and about 100 from other countries.
Information available about British prisoners in gaol overseas who might be eligible for repatriation under the Council of Europe Convention or similar agreements is not complete in relation to Commonwealth countries and the United States of America, but the latest estimate is that there are about 150 in Council of Europe states, Canada and the United States of America and about 100 in other countries. We do not, therefore, expect these arrangements to have any significant effect on the total prison population. It must also be borne in mind that these 758 prisoners will not all be transferred immediately. The rate of transfers will depend upon the rate at which other countries are able to ratify the convention or other agreements to which we may become a party.
I turn now to the position of terrorist prisoners. This was referred to in the Adjournment Debate on the subject of prisoner transfer treaties in another place on 16th April 1981 and I know that it is a matter of concern to many of your Lordships. Terrorists are criminals and are dealt with in the same way as other criminals in accordance with the seriousness of their crimes. I have already declared that the Secretary of State will not normally withhold his consent to the transfer of a particular prisoner unless he considers there are compelling reasons of public policy for so doing. Considerations of public policy might lead to a decision to refuse the transfer of any prisoner who had been convicted of particularly horrific crimes and who might be regarded as undeserving of any degree of public sympathy; for instance, in the case of a murderer, a particularly ruthless and unprincipled drug trafficker, or someone who had killed or maimed in the name of some political cause or committed other acts of a terrorist nature. Each case will be dealt with on its merits taking due account of all relevant factors, including the considerations I have mentioned.
I should also take this opportunity to make clear our position about suggestions for prisoner "exchanges". Prisoner transfer arrangements which the United Kingdom enters into under the proposed legislation will provide for the repatriation of individual prisoners under the conditions provided in the arrangements. There is no question, so far as the United Kingdom is concerned, of these arrangements providing for the exchange of one prisoner for another. We must guard against the possibility that British nationals overseas might be unjustly arrested with a view to "trading" them for prisoners in the United Kingdom. British nationals would thus be put at risk if the United Kingdom were to contemplate exchanging prisoners. The British Government will therefore only accept repatriation of individual prisoners in accordance with the merits of each prisoner's case and the conditions provided in the relevant prisoner transfer arrangement with the country concerned.
This Bill provides in a succinct form—more succinct, perhaps, than my explanation of it—the special powers needed to enable agreements to be concluded with other countries for the repatriation of prisoners. Its purpose is humanitarian and it represents a notable advance in international co-operation in this field. On both these counts, the Bill deserves support and I hope that it will have it from all sides of the House.
§ Lord Kilbracken
My Lords, before the noble Lord sits down I should like to ask him to confirm that the Republic of Ireland is not part of the British Islands and that, therefore, these arrangements will obtain between the United Kingdom and the Republic.
§ Lord Elton
My Lords, the noble Lord has asked me a question to which the answer must be phrased with great care and I shall give it to him when I reply to this debate. My Lords, I beg to move.
§ Moved, That the Bill be now read a second time.—(Lord Elton.)759
§ 1.18 p.m.
§ Lord Mishcon
My Lords. as is expected of the noble Lord the Minister. he has given us a very clear, lucid account of a good, humane Bill, and in case any words of mine might be misinterpreted in describing the noble Lord's always welcome contributions to this House may I add that in my view he was as concise as was reasonable in his explanation. It is a good, humane Bill and I am sure that it will be welcomed in its general terms in all sections of the House. Because of its humane content I believe that your Lordships will be especially glad that this is going to be the occasion upon which the right reverend Prelate the Bishop of Bristol will be making his maiden speech. I am sure we shall all listen to him with very great pleasure.
I am tempted, because of the intervention of my noble friend, to preface the other remarks that I may make with a question to the noble Lord the Minister. At my last count—and I may not be up to date—I was told that there were 13West European countries together with America and Canada which had ratified the European Convention on the Transfer of Sentenced Persons, but I noticed that the noble Lord the Minister said that there were 14. Two of those which were omitted when I made my count were Italy and the Republic of Ireland. It may be that one of those countries has now ratified. However, it will be of interest to us to know whether the Republic of Ireland is one of the signatories to the convention. I am not talking in terms of the present Government of the Republic of Ireland: but in future years this may have a little relevance to some of the remarks that I shall make later on.
As I have said, it is a very good Bill. There are some questions which will be in everyone's mind when we consider its application. The first question is one that the noble Lord has been good enough to answer already in his introductory remarks. It is whether we shall be the net losers or gainers, or whether it makes very much difference to our prison population—a matter of terrific concern to all of us when we realise the present overcrowded state of our prisons. I think that the noble Lord has reassured us by saying that, on a rough count, the numbers appear to be fairly equal as to those prisoners who we are holding in our prisons who are nationals of other states, and those of our own nationality who are in prisons abroad. If it be correct—and the noble Lord mentioned this—that this will not be an immediate transfer but will take place over a period of years, it will look as though this is not a matter that need concern us unduly when we think of the crowded state of our prisons.
There is also the question that was raised in the report of the interdepartmental working party which was published in June 1980. Again, it is a matter to which the Minister referred. That working party recommended that:Repatriation should normally be possible only where the offences involved are contrary to the criminal law in both countries".One can well realise the reason for that recommendation. The noble Lord the Minister recognised it and gave an example of an offence which would not come within our criminal law: namely, the mere taking of alcohol and not the excessive taking of it, which in 760 other countries would be an offence. As it is hoped by Her Majesty's Government that there will be bilateral agreements quite outside the convention, we should be very interested to know with what countries Her Majesty's Government are at present negotiating. Perhaps we could have a broad indication as to the countries which may in future be within the ambit of their negotiations from a point of view of bilateral agreements.
It is a very human question for this reason. If a British subject is convicted and sentenced abroad for the offence of merely taking alcohol, or being found to have alcohol in his possession without even taking it. and a sentence is imposed and the transfer arrangements are made, then one could get the odd situation of, it might seem, complete injustice: that in our prisons we are actually detaining a person who, according to our law, would have committed no offence whatever. Furthermore, we could get the situation not only in that case. where there is a question of our criminal law not being the same as that of another country, but we could get the difficult situation of someone who receives a very heavy sentence according to the practice of another country, whereas we might either have imposed no prison sentence at all or a very light one. We all know what policy many of us are trying to recommend in that connection. We then get the inhuman situation of a British subject incarcerated in our prisons who is serving alongside other prisoners convicted of and sentenced for much more serious crimes and being made to serve a long sentence, and a longer one than would be justified in our own country by virtue of the fact that normally the same sort of prison sentence would be served as was accorded in the country that transferred the prisoner.
It is not easy to deal with that purely and simply by a parole system. such as was mentioned by the Minister. One wonders whether a specific power rather than the very general one should not be put into the Bill to deal with a situation of that kind. If it is not included in the Bill. one will want an assurance from the Minister that complete latitude in this connection will be given—and I am talking in terms of lightening sentences and not making them more severe—in any bilateral agreements that are entered into.
This also has a relevance—and possibly it is the other side of the coin—when I deal with a matter to which the Minister referred at the conclusion of his speech. When he was talking about the effect of this Bill on those convicted in our own country of terrorist offences, he rightly said that it was a matter which had exercised the minds of many people who think that this is a very dangerous area. As the Minister mentioned, anxiety has been expressed in other places; indeed, it was very much the concern of an honourable Member in the other place, Mr. Ivan Lawrence. I have his permission to quote the correspondence which took place between him and the Home Office. I have given the noble Lord the Minister notice of the fact that I shall quote the Home Office reply. Mr. Lawrence mentioned his anxiety about what would happen in regard to terrorists who are convicted of terrorism in this country; then, with the prisoner's consent (obviously given in this context) and that of the country with which we had a bilateral agreement. the 761 country concerned, being very sympathetic to the cause of the terrorist, asks for his transfer, and then, under Article 12 of the convention, which I shall read to your Lordships, immediately releases him or gives him very lenient treatment.
Article 12 of the convention reads:Each Party may grant pardon, amnesty or commutation of the sentence in accordance with its Constitution or other laws.That may be a very great embarrassment to us—and, even more than an embarrassment, a great danger. I believe that your Lordships are especially apprehensive of matters of this kind having regard to the tragic experiences that we have suffered over the past few days. The honourable Member of another place brought that matter to the attention of the Home Office Minister. Mr. Mellor replied to him on 31st August this year in the following terms. I quote only from part of the letter but the part of the letter I quote I shall quote in full. He said:I have no doubt that Parliament will expect us to make very clear our policy on the exercise of this discretion.I pause for a moment to say in parenthesis that that is the absolute discretion to refuse to transfer any prisoner. The letter then continues:I do not want to anticipate any announcement we might make during the passage of the legislation. It was, however, a conclusion of the Interdepartmental Working Party which considered this subject in 1980 that the discretion to refuse would not normally be used except for compelling reasons of public policy. The then Minister of State (Mr. Mayhew) indicated, in his reply to an adjournment debate initiated by John Wheeler on 16th April 1981, that in circumstances relating to terrorism, such compelling reasons of public policy might well exist (Official Report, col. 497).I would add to this only that such reasons may exist also in relation to a variety of other heinous crimes and a statement of Government policy on this issue will be relevant to this also. I hope, however, that I have demonstrated our awareness of the issue and our appreciation of the particular point you raise.".That ends the letter.
I listened with great care, bearing in mind this promised statement, to what the noble Lord the Minister had to say in this context. I do not think that it goes far enough. It is extremely difficult, if we do not put something in this Bill, for the Government to walk into difficult discussions that may take place hereafter on the very category of crime I have mentioned. If we were able to say that the Bill that we passed in this connection prevented a transfer, unless there were very special circumstances, in this category of offence—and we may want to mention other heinous crimes, such as murder—that the general rule would be not to transfer but in special circumstances we might, then we would have the flexibility that we want and we would have the reason that we want if ever we are placed in this embarrassing position.
I asked a question about the Republic of Ireland. Nothing that I said in that connection, or will say, is meant to be in the slightest degree offensive to the present Government, which is headed by someone for whom I believe there is universal respect in this country. But we are legislating for future years, and one just does not know what other Government the Republic of Ireland may have. Therefore, purely giving that as an instance, or giving an Arab state as an instance—and, again, that is not meant in any sort of offensive way at all—I believe that we have to be extremely careful and see that our legislation on this occasion provides for this, and does it openly. One can 762 imagine the sort of blackmail to which a Government might be subject in this context if there was not a clear legislative decision and it was merely left to a vague exercise of discretion.
Having made these remarks, as I said before this Bill ought to have a welcome—and I imagine it will receive it—in all sections of your Lordships' House. There are some safeguards I have tried to mention which I think should be in the Bill, and we shall all await with some interest the Minister's reply to this debate.
§ 1.34 p.m.
§ Lord Avebury
My Lords, on behalf of my noble friends I, too, should like warmly to congratulate the Government on introducing this Bill, and on doing it so promptly to give effect to our signature to the Council of Europe Convention on the Transfer of Sentenced Persons, which, as the noble Lord told the House, was opened for signature in March. There has been no time lost in coming forward with the legislation we are now considering. It is a fairly rare event that I am able to express wholehearted appreciation of something done by the Home Office, and it gives me genuine pleasure to be able to do so twice on a single day, as I have been able this afternoon.
The noble Lord the Minister gave us some history. I can remember back in 1979, when I first became involved in this subject through the work of the National Council on the Welfare of Prisoners Abroad. which was founded early in that year to draw attention to the plight of prisoners in foreign gaols, to try to alleviate their suffering and to campaign for their transfer back to their home country. It has been my privilege to be associated with the NCWPA ever since then. They have played a significant part in bringing this matter forward to public attention over the last few years.
In 1979, also. the Howard League for Penal Reform published a study of prisoners in foreign gaols, and they were arguing the case for transfers. The noble Lord has mentioned the Home Office working group which was established to consider legislation as long ago as 1978, enabling the United Kingdom to enter into arrangements such as are outlined in this Bill. He also mentioned the pioneering work done in the United States, which passed legislation enabling that country to enter into bilateral agreements as long ago as the 1970s. The first of those, between the United States and Canada, came into effect in. I think. 1979, and many others followed thereafter.
In the United States it is already the position that American citizens may be repatriated to serve their sentences in American gaols when they have been convicted of offences in countries as far a field as Thailand, and I believe Turkey also. It was a great pity that we did not follow the American example and seek to enter into bilateral arrangements with all those other countries without waiting for the Council of Europe convention; but I am delighted that we are now not only in a position to give effect to the convention arrangements but also, as the Minister explained, to go for bilateral agreements with countries which, for one reason or another. are not able to accede to the convention.
763 As the noble Lord explained, there is no doubt at all that there is an additional dimension of suffering which is added to a prison sentence if it is served in a foreign land where the language is different, where there are cultural and social barriers between the prisoner and other inmates and staff, and where in the nature of things visits are going to be rare. Also, for westerners in prisons in the third world there is the hardship which arises from having to exist on a diet which may be inadequate both in quantity and quality.
Obviously it operates the other way round as well. The Minister will know of the cases of foreign citizens in our own prisons about whom we have corresponded. For example. there is the Bolivian who was in Parkhurst. where there was not a single other Spanish-speaking prisoner and even no welfare officer who could speak Spanish. In the end, the noble Lord kindly agreed that that prisoner could be transferred to Maid stone, where he was able to discuss matters with people who could speak Spanish. That was a typical example of the kind of thing that happens with foreigners in our prisons. I am sorry to say that this gentleman has now been refused parole, in spite of his exemplary conduct in prison, because his offence was one of those singled out by the Home Secretary for especially sharp treatment in the new policy announced at the Tory Party Conference, though never agreed by Parliament.
I hope that when the noble Lord refers to withholding consent in cases where there are compelling reasons for so doing he is not going to tell your Lordships that one of the circumstances in which he will not allow a prisoner to be transferred back overseas to serve the remainder of his sentence is where the prisoner has committed an offence of the kind outlined by the Home Secretary in his speech to the Tory Party Conference. I should be grateful for an assurance that that is not the intention.
There is one criticism which some people would like to make of the Bill, though it remains to be seen how this works out, and that is that it confers wide powers of discretion on the Secretary of State to transfer or not to transfer a prisoner, without laying any obligation on him to make a statement or to give any indication of what the criteria were by which he made the decision to transfer or not to transfer that prisoner.
We come to the major question which has been discussed already by the Minister and by the noble Lord, Lord Mishcon, about what is to happen in cases of terrorism in particular. I listened carefully to what was said by both noble Lords without being clear in my mind as to how that will work out.
I think there is a difference between repatriation of a prisoner to a country such as Iran where, presumably, someone who has committed a terrorist offence in Britain would be received with sympathy or indeed acclamation and his transfer to a country such as Ireland. which shares the values of this country and would in any circumstances, if I may say so to the noble Lord, Lord Mishcon, be prepared to honour those arrangements. I would have no fear whatsoever about our proceeding with the transfer of such prisoners to Ireland knowing that their sentences 764 would be served in full. But I should not be happy if it were proposed to enter into arrangements with a country like Libya or Iran for the transfer of terrorists to those countries where a completely different situation would arise.
If the noble Lord would address himself more to the reaction in the recipient country and less to the nature of the offence, we might begin to get somewhere with a system which would be agreed by all to be fair.
However, I do not think that other kinds of offences would justify the withholding of consent to transfer because one runs into all sorts of problems. The noble Lord, Lord Mishcon, mentioned particulary heinous cases of murder. We have been through all this before when discussing the distinction between capital and non-capital murders. We found it was impossible to draw the line in such a way that everybody would agree that the murders which fell on one side were such as to justify the ultimate penalty while those that fell the other side only justified the award of a life sentence. Your Lordships may remember all the arguments that took place about poisoning which is a non-capital offence. Shall we have to draw up lists in the same way as we did then to say that in cases of poisoning or murder during the course of a robbery, for example, we would not consider repatriating those prisoners whereas someone who murders someone else in a fit of passion because of some relationship between them should qualify? It will be extraordinarily difficult if the Minister has to make that kind of distinction in examining every individual case to see whether he should withhold consent for compelling reasons, as he has told your Lordships he will have to do. We shall need to go into this more when we come into Committee.
I shall not try to give any further indication about how we think the definition should be framed at this stage, except to say that it has to be dealt with during the course of proceedings on the Bill and not left to the unfettered discretion of the Secretary of State after we have finished with it.
In the case of British prisoners returning from abroad, the Secretary of State has the power to order their detention. as the Minister has explained, for a period exceeding the sentence which could be passed by a British court for the offence and even to keep the person in prison on account of an act committed overseas which would not be criminal in the United Kingdom. I believe that this is inevitable if one wants people to serve whatever sentences are imposed in courts overseas under relatively humane conditions, no matter how repugnant we may find it to keep somebody in detention for an act which would not be considered criminal within the boundaries of the United Kingdom. This is not just for alcohol offences. People may be convicted of homosexual offences in countries overseas where the acts done were perfectly legal within the United Kingdom. yet we are in the position of having to accept those persons as remaining in detention in Britain because it is the lesser of two evils; they would not be in such a hard position as if they had to continue serving their sentence overseas.
One example which my noble friend Lord Donaldson of Kingsbridge drew to my attention I think should be aired at this stage. If we ever enter into 765 arrangements with the Republic of South Africa there is the question of offences in connection with the apartheid laws there. Many people in this country would draw the line at having people serving sentences in British prisons when all they had done was to violate the iniquitous and evil laws of the Republic of South Africa. I hope that the noble Lord will give some careful thought to whether consent would be given under such circumstances, if there is a possibility under the Bill of our entering into bilateral arrangements with South Africa.
In general I warmly welcome the Government's declaration of their willingness to enter into bilateral arrangements with countries that for one reason or another cannot sign the convention, such as Thailand or Turkey. As the Minister knows, the Thai authorities have been ready to negotiate with us for some time. I hope the arrangements can be completed in the time that it takes Parliament to enact this legislation. As the noble Lord is aware, the penalties for certain kinds of offences in Thailand are extremely severe. For example, there is a 30-year prison sentence laid down for possession of small quantities of designated drugs.
The Minister knows of a young British citizen who is serving a sentence of 35 years in a Thai prison for the possession of 10 grams of heroin on the grounds that if one has more than a certain minimum quantity one must automatically be trafficking in drugs, although no evidence was produced in his case that that was his intention. I welcome the Minister's assurance that in these cases where somebody is serving a long sentence in a prison overseas, once he comes back to this country the British rules on parole and remission would be applied. I should like the noble Lord to give me an assurance that when the parole authorities consider those cases they will have regard to the fact that a person who had been convicted of the same offence in a British court would not have been sentenced to anything like the same length of imprisonment.
I am somewhat more optimistic than the Minister about the effects of this Bill on the prison population. He said that there were about 200 citizens of Council of Europe countries plus United States and Canada serving sentences in our prisons, and 150 of our citizens in their prisons. If the whole lot were transferred the balance would be slightly in our favour from the point of view of the prison population. But if one considers the overall figures, there are 3,500 persons born overseas in British gaols, while I believe that the number of Britons in foreign gaols is about 800. The Minister can correct me if that is wrong. It seems likely, therefore, that in the long run as a result of the Bill there will be some slight alleviation of overcrowding in our prisons which is an added bonus.
Incidentally, I have never been able to discover why it is so difficult for us to record the citizenship of sentenced persons in British gaols. The figures we have relate to country of birth, which the noble Lord explained, but in 1982, for example, there were no fewer than 1,900 prisoners for whom even that information was not available. I hope that the Home Office will take steps to identify those who may be eligible for transfer under the arrangements we are enacting and will also be able to give the House an 766 assurance that full explanations will be given to prisoners about how they can apply for their transfer.
I should perhaps say a word about persons detained in special hospitals. Clause 1(4) extends the power of the Secretary of State to transfer not just prisoners but also those detained in special hospitals under court order, under Section 72 of the Mental Health Act 1959. Presumably, those transferred will be subject to similar conditions to those covered by the 1959 Mental Health Act. In other words, apart from the other conditions that have to be satisfied, the Secretary of State will need to assure himself that proper arrangements have been made for the care and reception of the patients in the country to which they are going to be transferred.
As an aside, your Lordships may consider that the Title of the Bill—the Repatriation of Prisoners Bill—is an inappropriate one, bearing in mind that it extends not only to persons who are detained in prisons but, as I noted, to those who are in special hospitals, as well. The noble Lord may like to consider the suggestion that we should use the title of the convention and call it the Transfer of Sentenced Persons Bill, which would be more explanatory of what we are trying to do. This Bill is going to be greatly welcome to many families in this country whose sons, daughters, close relatives or friends are serving long sentences overseas. It is going to give them new hope that their loved ones may come back to this country where they can see them and give them the support they need during a long prison sentence. It will also give hope and comfort to the families overseas whose sons and daughters are in our prisons. It is a purely humanitarian measure which I think should command the support of every Member of your Lordships' House and of the country as a whole. I am delighted to extend the warm support of myself and my noble friends to this measure.
§ 1.52 p.m.
The Lord Bishop of Bristol
My Lords, I should like to begin by echoing from these Benches the warm welcome extended to this Bill by the noble Lord, Lord Avebury, and, before him, by the noble Lord, Lord Mishcon. I rise willingly to speak in support of the Bill because, as the noble Lord the Minister has stated, it seeks to alleviate some of the harsher features of imprisonment in a foreign gaol. To be in prison in a foreign land obviously greatly increases the punitive element in the sentence passed on the prisoner. Then there is the special and isolating deprivation of having little or no access to one's native language, with all that that entails. There is, further, the feeling of being exiled in an alien culture with a very different system of the administration of justice. Ignorance of local language and laws, combined with limited funds available, often means that legal representation when it is available is of poor quality and ineffective.
For those who are in prison in many African, Asian and Latin American countries, life behind bars can be incomparably more grim than any of even the most overcrowded of our own prisons. If the aim of imprisonment is both corrective and remedial then to serve a sentence in a foreign gaol will often reduce the remedial possibilities to a minimum or even eliminate them altogether. This is because prisoners in those 767 circumstances inevitably develop an animus against the country in which they are imprisoned. Since they are usually deported at the end of their sentences they are given little chance of rehabilitation in the community.
I believe that this Bill will prove to be most beneficial to the prisoners concerned, the families, the prison authorities and consular officials. I should like to give one case in illustration. There is a young prisoner at present in Thailand who has served less than three years of a 25-year sentence. He is alone in the world in the sense that both parents are dead and he has lost contact with other members of his family. There is increasing worry about his present state of health and the British consul said recently after a visit that there were serious symptoms of withdrawal. Prison food is insufficient and lacking in nutrition. Should this man become seriously there is no money available to cover the expensive medical attention required. Unless that man can look forward to an early transfer of the kind envisaged in this Bill, his chances of survival are poor. I am sure that there are other similar cases that one could cite.
I hope that the Government will maintain the momentum started by the introduction of this Bill and enter into negotiations with countries outside the Council of Europe, with a view to their joining either the European Convention or in separate bilateral agreements. I understand, for instance, that this has been illustrated by formal approaches made to Thailand.
My Lords, I should like to conclude by referring to the question of the Title of the Bill which was mentioned by the noble Lord. Lord Avebury. I am anxious about the use of the term "repatriation", because repatriation is now, rightly or wrongly, a word with emotive overtones because of its use in the field of race relations. Repatriation now suggests to many people some kind of involuntary removal from a country. Nothing could be further removed from the truth so far as this Bill is concerned. The consent of the prisoner is clearly required by the Bill, and this has been stressed by the noble Lord the Minister. It will be unfortunate, I think, if this use of the word "repatriation" created unnecessarily a hostile atmosphere surrounding the Bill. Might it not be better to follow the wording of the Council of Europe Convention and amend the Title to read, "The Transfer of Sentenced Prisoners Bill"?
§ 1.58 p.m.
§ Baroness Macleod of Borve
My Lords, it falls to me to have the honour of congratulating the right reverend prelate, the Lord Bishop of Bristol, on his maiden speech this afternoon. The Bishops on these Benches are of a very, very high order, as we all know. The right reverend Prelate the Bishop of Bristol is certainly no exception and we have listened very sincerely to all that he has said in his great wisdom about this particular Bill this afternoon. I feel personally that if the Bishops give it a warm welcome and, indeed, if the noble Lord, Lord Avebury, also gives it a warm welcome, then the Bill must be a good one. I should like to congratulate my noble friend the Minister, Lord Elton, on his very succinct speech. I do not agree with his words when he said that he did not 768 think that he was succinct; for he was very succinct and was able to put what I reckon to be a very difficult Bill in a very easy way to this House.
As all noble Lords accept, this is fundamentally a humane Bill. It is to help not only people to come back here from abroad but those who are within our prisons or special hospital wards to go back to their own countries. It should not be thought that in all cases prisoners want to be repatriated. I can remember, as a member of a Parole Board, receiving a pathetic letter from a man who did not want to come out of prison because he would have to go back to his own country as we should not want him here, and one understood from what he said that his life would not be of very long duration in his own country. But, of course, in most cases, as some noble Lords have said, prisoners would prefer to go back to keep in touch with their families and realise what is going on.
As I gather, the Minister has said, this really emanated from the Council of Europe. In company with other noble Lords, I should like to know what other countries we are likely to approach to see whether we can get reciprocal arrangements, because that is the fundamental basis of allowing prisoners to be thought of for repatriation. I should like very much to know also at what stage in a prison sentence served in this country repatriation will arise—I still use the word even though the right reverend Prelate does not like it; we shall have to see how it goes in the Bill—and at what stage in a prison sentence a prisoner would be thought of in connection with this. Would it be at the first EDR, as we used to call it on the Parole Board—the earliest date of release? Or would he have to serve a shorter or longer term? I think it would be interesting to know.
One problem to which I have given a lot of time and thought is trafficking in drugs. On the Parole Board one knew that there were a great number of prisoners who were serving sentences because they had been apprehended with a large quantity of drugs which they intended to sell in this country. I formed the view, rightly or wrongly, that these evil people could perhaps even be charged with murder. They could certainly be charged with manslaughter because, if they had not been apprehended, they would have been responsible for causing the deaths of people in this country. I do not think that that is putting it too strongly. If they had not been apprehended. then of course they would certainly have been causing the deaths of people in this country.
The normal sentence of the court would be that they would be deported if they came from foreign countries: and my recollection is that they were held in Her Majesty's prisons and not deported until almost the end of their sentence. I would make a plea to the Government that that should continue, because it was very apparent that people coming from the countries which do send traffickers in drugs to our shores would go straight back and start the operation all over again. There are very many documents within the Home Office to prove this, and I should be grateful if my noble friend could give us an assurance that those people would not be deported despite the fact that, according to the sentence, at the end of that sentence they would have to leave this country. I should not like them to be part of the repatriation process.
769 There is one final small point that I wanted to make, and that concerns the special hospitals to which the noble Lord, Lord Avebury, referred. What the other institutions are I have been trying to find out, but cannot, and perhaps my noble friend the Minister would help us on this point. I hope I am right in saying that people detained in special hospitals would be called not prisoners but patients. I think that that would have to be dealt with somewhere in the Bill. It is important to them, because they are certainly not prisoners.
With other noble Lords, I give this Bill a very warm welcome on the grounds that the Home Secretary, the Parole Board, the LRC and others feel that these people could and should be repatriated. I hope this Bill will make their life and imprisonment easier than it has been in the past.
§ 2.5 p.m.
§ Lord Melchett
My Lords, it looks as though the Bill is going to get a unanimous welcome. It certainly deserves it and I add my own welcome to those which have already been given. I disagreed with one or two things that were said by earlier speakers, but I am delighted to say that I agree with everything the right reverend Prelate the Bishop of Bristol had to say, and I congratulate him on his contribution. In particular, I agreed with his remarks about the Short Title of the Bill and I hope that we can amend that in Committee.
I very much welcome the wide scope which the Government have decided to adopt in drafting the Bill. I think the noble Lord, Lord Elton, is absolutely right in saying that the Government need a great deal of flexibility to be able to arrive at suitable bilateral treaties and other arrangements outside the Council of Europe Convention with individual countries. It is clear that we are going to have to balance the need for that flexibility against the very wide discretionary powers that the Bill provides. I should like to return to that.
I think the case for the Bill has been very strongly made, but perhaps I might mention one particular case. However, before doing so I would like to say a word on what the noble Lord, Lord Avebury, said about the history of this, as it were, from outside the Government. I have been involved for many years, as a trustee of Release, in work in this field and have warned young people travelling abroad about the dangers they face in smuggling drugs from one country to another, or indeed in buying drugs in certain countries. For several years now really marvellous work has been done by the National Council for the Welfare of Prisoners Abroad, with which I am also connected as a trustee, in helping in some really desperate cases both the relatives of people in prison and the prisoners themselves. Very often the only hope that prisoners have of a continued existence at all is the help given by this voluntary organisation.
For example, there is a 34-year-old Briton currently serving a 30-year sentence in Turkey for a minor offence involving about 4 oz. of cannabis. I wanted to use this case to comment on what the noble Baroness said earlier about drug traffickers. Of course, it depends not only on the drug involved and the quantity involved but also on who you manage to catch. Very often the people bringing illegal drugs 770 through customs are couriers. They are not the people who stand to gain financially to any significant extent from the sale of the drugs. That is why very often the customs and the police follow the person with the drugs from the airport to some other destination and try to make an arrest subsequently.
Therefore, there is no simple answer to this problem. It depends on whom you catch, his position in the organisation, how much he stands to gain financially, whether he knew in detail what he was carrying, even if he ought to have known, and so on. This particular offence of the possession of four ounces of cannabis, which would be a crime in this country, would not be a crime in some other countries in Europe and some parts of the United States. When we talk about people committing offences in other countries which will not be offences in this country, we need to remember that that can work both ways in, maybe, a more limited number of cases. There will be some people imprisoned in this country for offences which would not be offences in their own country. Does the noble Baroness want me to give way?
§ Baroness Macleod of Borve
My Lords, we are talking—are we not?—about people who have been sentenced to a considerable number of years of imprisonment for having in their possession drugs with a street value of probably from £250,000 to £500,000?
§ Lord Melchett
Yes, my Lords. There are clearly serious cases of smuggling very dangerous drugs like heroin, and I shall come back to that point in a moment. To return to the case which I was mentioning, of the Briton imprisoned in Turkey and serving a 30-year sentence of which he has served about six years, that individual is very seriously ill. Although there have been contradictory reports from the Turkish prison authorities, it appears that the person concerned may well have cancer, and there is no possibility of medical treatment being given, so far as I can ascertain, simply because the facilities are not available in the Turkish prison system. It seems likely that, unless that individual can be transferred back to this country in the reasonably near future, he will die. I wanted to mention that case in particular, because it emphasises that we are not talking about just a humanitarian measure; we are talking about a humanitarian measure which might make the difference between life and death for quite a few British citizens who are in prison abroad.
If I may come to the point which the noble Baroness mentioned of the severity of a particular offence—and indeed my noble friend Lord Mishcon also made this point—I entirely agree with the noble Lord, Lord Avebury, that it would be impossible in the Bill to set out categories of offences, or indeed to ask the Government to do so in advance, as the noble Baroness did, for which the Government would not agree to a transfer. As the noble Lord, Lord Avebury, pointed out, when we were looking at the question of capital punishment for murder for a single offence, it was quite impossible in advance to distinguish between particularly serious cases and less serious ones. I think that that has been agreed by all parties, and certainly by the judiciary. Exactly the same argument would apply to other cases.
771 In practice in this country it must be right, however undesirable it may be. to allow the Government the discretion for which they ask in the Bill and to refuse transfer if they consider that right and not to do so if they do not. I welcome the form of words which the noble Lord, Lord Elton. used in describing the circumstances in which the Government would refuse a transfer. I am sure we can probe that in a little more detail at the Committee stage, but I strongly feel that attempts to define particular categories of offences in the Bill will lead us into a quagmire from which we shall never emerge, and from which the Bill and future transfers of prisoners may never emerge.
To give one example to my noble friend on the Front Bench, he mentioned terrorist offences. In Northern Ireland. which this Bill covers, a very large category of criminal offences are classified as terrorist offences—far more than I think my noble friend had in mind when he was talking about terrorist offences. He was clearly referring to very serious offences involving. I imagine loss of life; but it does not seem to me very fruitful to go down that avenue. It would depend as much as anything. as the noble Lord. Lord Avebury, said, on the attitude of the recipient country, as on the particular offence and the circumstances surrounding it. It would also be affected by the number of years that a prisoner has served and on a host of other factors, including the changed personal and family circumstances of the prisoner. After all, there have been some very serious terrorist offences committed by people in the United Kingdom, where the Government in subsequent years have seen fit to release them early for particular reasons—the attitude of the prisoners, their health, and so on. So I would counsel very strongly against attempting to put definitions in the Bill, where people would not be transferred.
I also disagreed strongly with my noble friend Lord Mishcon and the noble Lord, Lord Avebury, about the imprisonment of people here for things which were not offences under our own criminal law. The noble Lord, Lord Avebury, did not go as far as my noble friend, but he suggested there might be a point at which we would draw a line. He gave the example of somebody imprisoned in South Africa for an offence against the apartheid laws, and said how many people in this country might well feel it intolerable for such a person to be transferred and then held in prison in the United Kingdom. But the choice is not between the person being imprisoned in the United Kingdom and not being imprisoned at all. The choice is between the person being imprisoned in the United Kingdom and being imprisoned in South Africa. However the individual prisoner—and this is the safeguard against this point in the Bill—will have the opportunity of deciding which he or she would prefer. I have no doubt which I would prefer, if I had a choice. I do not think that the noble Lord, Lord Avebury, or my noble friend would disagree that if they had a choice they would prefer to serve a prison sentence in the United Kingdom rather than in South Africa. It may be upsetting for citizens of the United Kingdom to have people in their prisons for such an offence, but we have to bear in mind that we are giving the prisoner a choice. If he takes that choice. as most sensible people 772 in South African gaols would. we should allow him to exercise that choice and serve his term here. So again I personally have no problems over that and believe that we should keep a complete discretion for the Government to transfer people to this country, if prisoners so wish.
§ Lord Mishcon
My Lords, before my noble friend finishes with that point—South Africa was not an example which I gave, though I wish I had thought of it—would he not think it really terrible that we should hold in our prisons. subject to prison discipline, those who had been convicted under South Africa's apartheid laws? Even if prisoners wanted to come back here, does not that cast a shadow upon our own administration in our own country?
§ Lord Melchett
No, my Lords. I do not think it does. And, yes, I do think it is terrible, because the only alternative is to leave the person in prison in South Africa. We know what fate awaits a large number of people in prison (particularly if they happen to be black) in South Africa for offences against those laws. They are likely to die in prison. In return, I would ask my noble friend whether it is really tenable, just to be able to wash our own hands, to keep people in prison abroad where they may face death, as in the case I have given—it would also apply to people in prison in South Africa—rather than to transfer them here where, however disagreeable it may be to my noble friend and myself that they should be in gaol, it would be a great deal better from the individual's point of view. That seems to me to be the overwhelming argument.
With respect to my noble friend and to the noble Lord, Lord Avebury, I do not believe that you can start picking categories. That becomes just too difficult to stomach. Either we say that we are prepared to accept the principle of people being in gaol in this country for something of which they have been convicted abroad but which would not be a criminal offence here, or we say that we are not prepared to accept them. We cannot start to construct a list of priorities and say that some offences are so terrible that we shall not have them here while others are just about all right and we shall have them in our prisons. I would remind both my noble friend and the noble Lord, Lord Avebury, that this will work in reverse. People will be in prison here for criminal offences which are not criminal offences in their own country, so it is not going to be altogether a one-way traffic.
I should like to raise a couple of points, having, I hope, though I am not sure how effectively, defended the Government's position on a fairly wide discretion under general terms—to have a go at a couple of particular areas where the Bill gives discretion to the Government quite unnecessarily. The most glaring example, it seems to me, is in Clause 1(1) of the Bill. After the three conditions which the noble Lord set out have been satisfied—the prisoner's agreement, the existence of a treaty and the agreement of the two Governments—it is still only discretionary for the Secretary of State to issue the transfer document. Once the three conditions have been met I believe that the Secretary of State should issue a transfer document, and that it should say "shall" and not "may" in that part of Clause 1. The only reason why the Government 773 may wish to retain some discretion is because they need to make sure that the travelling expenses will be met. That seems to me to be far too petty a ground, if that is the only ground on which "may" is justified for that discretion to remain in the Bill. The three conditions set out in Clause 1 are right. Once they have all been met—they include the agreement of the Secretary of State in this country—a transfer document should be issued without any discretion being left to the Government.
I am concerned generally about the question of travelling expenses and the extent to which the Bill as drafted will mean that people will languish in foreign gaols although all the other conditions have been met, simply because they or their representatives are unable to meet the cost of transferring them back to the United Kingdom. I hope we can look again at that point in Committee.
I am also concerned about remission. The noble Lord, Lord Elton, and other speakers have rightly laid stress on the fact that once a prisoner is back in this country the normal procedures for parole and remission will take effect. According to my reading of the Bill, there is, first, a double jeopardy insertion in the parole provisions, that somebody has to serve the minimum period in a United Kingdom gaol, of a year at the moment, although it may be reduced to six months, however long they have spent in prison abroad. That is unnecessarily restrictive. More seriously. the period of the sentence upon which remission is judged starts when the person is in prison in this country. It takes no account, as I read the Bill, of the period which they spent in prison overseas. That must clearly be wrong. I hope I am right in my interpretation of the Bill. Perhaps the noble Lord will confirm that, if not today at some other point before we reach the Committee stage. If I am right, it is something which we shall be able to change in Committee.
I hope also that we can make it mandatory in the Bill that prisoners are told the terms of the transfer warrant. It seems to me, as I have said, that the prisoner's consent is the major safeguard against some of the rather abstract difficulties—if I may say so—which have been raised about keeping people in prison here. It is clearly vital that prisoners should know what they are letting themselves in for. Although I know that the Government intend that prisoners should see the transfer warrant and know what is involved, at the moment it seems to me that that is not mandatory on the face of the Bill—and, clearly, it should be.
I warmly welcome the Bill. I was delighted at the speed with which the Home Office has moved. I hope that the noble Lord may be able to tell us more about the ratification of the Council of Europe convention—not only about the timing for United Kingdom ratification once the Bill has passed through Parliament but also whether the Government have any information about other countries ratifying the convention so that a sufficient number ratify to bring the convention into force. We shall continue to need to make progress, not only with the legislation but with implementing it, if we are to save the lives of some people—our own citizens in prison abroad—and not 774 see people die before we can bring these provisions into force.
§ 2.21 p.m.
§ Lord Ennals
My Lords, may I first ask the House to accept my apology for putting down my name to speak not early enough for it to be included on the list of speakers? I hope to mitigate my offence, first, by being fairly brief; secondly, by congratulating the Government. I warmly welcome this Bill. I entirely agree with the points made by the right reverend Prelate the Bishop of Bristol. I warmly congratulate him on his maiden speech—and I do so after having recently made my own maiden speech. I have no doubt that although there are difficulties to which your Lordships have referred, and I wish to touch upon them, this Bill will put right not just a hardship but a dual hardship.
During the periods (a) when I was a Minister in the Home Office and (b) when I was a Minister in the Foreign and Commonwealth Office, I became very much aware of the problems of hardship of people from overseas who were—as the noble Lord, Lord Avebury, said—in British gaols and wishing that they could be home and receive visitors, or at least be in communication with people of their own nationality. That applies in exactly the same way to British people who are overseas and from whose relatives I repeatedly receive expressions of concern about whether their sons and daughters, or wives and husbands, could not be brought back to Britain. So I am certain that this Bill will put right a dual hardship and is therefore entirely a humanitarian Bill.
Of course I agree with the point made by the noble Baroness, Lady Macleod of Borve, as well as by others, that we must seek to reach agreement with as large a number of countries as possible. It may be that the countries where some of the greatest difficulties apply are the same countries where it will be most difficult to get such agreement. But we simply have to face that fact. The Foreign Office, who will act on behalf of this House and the Government when this Bill becomes law—as I am sure it will—will no doubt work very hard in that respect.
Before I come to the main point I want to make, I wish to say that I believe we shall find ourselves in considerable difficulty—and I say this, too, to my noble friend Lord Melchett—with those who have been committed for offences which are in no way considered offences in this country. I agree entirely with the noble Lord, Lord Avebury, in this respect, and I am thinking of apartheid cases. It may be the case that such instances can be dealt with by parole and remission, but I am quite certain that they have to be so. I should find it very difficult, as the noble Lord, Lord Avebury, would, being associated with the anti-apartheid movement, to conceive of people remaining for long in British gaols who have committed offences which we should not conceive of as being offences.
The main reason I wished to speak was to follow on the points made by the noble Lord, Lord Avebury, and the noble Baroness, Lady Macleod of Borve, in relation not just to those in special hospitals but to others affected and who are, in fact, mentally disordered offenders. There are three particular 775 questions I would put to the noble Lord, Lord Elton—since at the moment he cannot actually hear the question, I shall have to try to attract his attention. I assure the noble Lord that they are three questions to which I would not expect him immediately to give an answer. I raise them because I believe that they are probably matters that ought to be thought of before we reach the Committee stage of this Bill.
The first question arises on Clause 1(1)(c), the issue of warrants of transfer. The meaning of the word "consent" I am certain needs to be clarified. Will prisoners be entitled to legal advice before giving their consent? What are the circumstances envisaged by the Bill where a person will be authorised to consent on behalf of a prisoner? These are difficult questions. Is it contemplated that there will ever be circumstances in which a mentally disordered prisoner or a patient under a hospital order—for instance, a person convicted by the courts but sent to hospital and not to prison—able to consent himself will have that decision taken for him; and, if it will be taken for him, what are the circumstances in which the decision would be taken on his behalf?
The second question concerns Clause 2, which is transfer out of the United Kingdom. Under Section 86 of the Mental Health Act 1983 the Secretary of State already possesses powers to transfer abroad—I am quoting—alien patients, including those under a hospital order; before doing so he has to obtain the approval of a mental health review tribunal. In exercising this power the Secretary of State does not have to obtain the consent of the patient. I would appreciate some clarification of his powers under the Bill, and would like to know whether independent advice as to the patient's current needs and state of health, of the sort provided by a tribunal under the Mental Health Act. will be taken into consideration?
The last question of the three concerning mental cases arises under Clause 3, transfer into the United Kingdom. Clause 3(1)(c) gives the Home Secretary unfettered discretion to detain the prisoner domestically. While I appreciate the need for wide discretion, I am concerned that the terms of the warrant would not exceed the sentence, or equivalent hospital order, under which the prisoner was detained abroad. In the case of prisoners who have been sent by a foreign court, on conviction, to the equivalent of, say, Broad moor under the equivalent of our hospital order, such order is decreed to last for a limited time. Will the Home Secretary under the wide discretion afforded to him by this clause feel able to subject them to an indeterminate hospital order on their transfer to this country?
As I said, I do not expect the noble Lord to answer these questions at this stage, but I think they are difficult questions; they are questions which we shall have to have answered before this Bill finally becomes law. In conclusion. I congratulate the Government on acting quickly on what I am quite certain is an entirely humane Bill which will bring reward not only to the prisoners themselves, be they here or abroad, but to their parents and relatives who will again have contact with them, which in many cases has been denied for a very long period of time.
§ 2.30 p.m.
§ Lord Elton
My Lords, I rise to reply to the debate in an unaccustomed glow of comfort brought about by the unfamiliar and unbroken succession of compliments and welcome to myself and the Home Office, not only for the wisdom of our policies but also for the speed with which we have implemented them. It is therefore in the most euphoric of conditions that I congratulate the right reverend Prelate the Bishop of Bristol on what was a notable maiden speech. I assure him that I would have been just as full in my praise had I been subject to the shower of objurgation and brickbats to which I am normally submitted at the Dispatch Box.
If I can now take the business more seriously in hand. I welcome the very close interest which all your Lordships who have supported the Bill have given to its detail. Conflicting views have become apparent. not only between the parties—in fact, not between the parties—and doubtless these will be aired at the Committee stage. For information, I start (since we should know precisely with whom we are dealing in these matters) by saying that I think that the noble Lord, Lord Mishcon, by a slip of the tongue. asked which countries (he thought there were 14) had ratified the treaty. I am sure he meant to ask how many had signed the treaty. I shall read them in what appears not to be quite alphabetical order: Austria, Belgium, Denmark, France, the Federal Republic of Germany, Greece, Liechtenstein. Luxembourg, the Netherlands, Portugal, Spain. Sweden, Switzerland and the United Kingdom. That is the alphabetical list of members of the Council of Europe. It has also been signed by Canada and the United States of America.
This brings me to the question of the noble Lord, Lord Kilbracken. I can assure him that the expression "British Islands" is defined in Schedule 1 to the Interpretation Act 1978 as meaning the United Kingdom, the Channel Islands and the Isle of Man. The term "United Kingdom" is defined in that schedule as meaning Great Britain and Northern Ireland. Wherever the expression "British Islands" appears in the Bill, it is to be construed in accordance with that definition; that is, as excluding the Republic of Ireland. The Republic of Ireland is a member of the Council of Europe but has not yet signed the convention. If it ratifies the convention, transfers between the United Kingdom and the Republic will he possible under the convention.
If I may now revert to the speech of the right reverend Prelate the Bishop of Bristol, he recounted the case history of a particular prisoner in Thailand whose chances of survival are low unless he can look forward to repatriation under the Bill. This is a moving example of the type of case that this Bill is designed to relieve, and vividly illustrates the humanitarian benefits that may flow from it. This lends importance to the negotiations that we are conducting with the Thai authorities. I am most grateful to the right reverend Prelate for this illustration. We share his concern for the situation of British prisoners in Thai gaols, as, indeed, do specifically the noble Lords, Lord Mishcon and Lord Avebury.
The Thai authorities have indicated that they are not interested in accession to the Council of Europe 777 convention but will be happy to consider a bilateral treaty with the United Kingdom. Work is in hand on the drafting of such a treaty. Because of the particular interest in an agreement with Thailand, I should like to point out that although the United States of America, Canada and some European countries have negotiated bilateral treaties with Thailand. those treaties cannot come into effect until the Thai Parliament have enacted the necessary legislation. Our latest information is that their legislation is not likely to be introduced before 1984. I should perhaps also mention that a condition included in the treaties so far negotiated with Thailand is that prisoners must serve four years or a third of their sentence in Thailand before transfer.
The noble Lord, Lord Mishcon, asked with whom we were conducting negotiations and with whom we might wish to negotiate. The only other country at present is Peru, and we are hoping that Peru may wish to accede to the convention. If it decides not to, we shall approach Peru with a view to a bilateral agreement. There are no other specific bilateral negotiations in view.
A number of your Lordships were exercised about the kinds of offence which might make a prisoner eligible for transfer under the arrangements in the Bill and under the convention. I can reassure the noble Lord, Lord Melchett, that there are no categories of offence listed; and I can reassure the noble Lord, Lord Avebury, that all cases will be considered in their individual merits, subject to the public policy considerations that I have already mentioned on my opening address. There are no predetermined criteria for deciding who should be transferred beyond those provided for in the Bill. Each case will be considered on its merits.
The noble Lord, Lord Mishcon, put his finger on many of the difficulties inherent in the task that we have set ourselves, particularly outside the convention. The task is to get back to their homes British citizens languishing in foreign gaols. In doing that we are not of course our own masters. The convicting state will return the prisoner only if it is satisfied with the terms on which this is done. That means that we may have to choose between leaving our fellow citizens where they are and having them back on condition that we keep them in prison. The prisoners will share in that choice. Some of us sometimes find ourselves faced with choices that are truly bewildering. The choice may simply be as to whether it is better to suffer an injustice at home or abroad. I must emphasise that the Bill does not pre-empt that choice; it merely leases either decision open. We shall have to consider the pros and cons for each case as it arises. Equally, we shall have to consider the merits of each individual bilateral agreement as it arises. That goes for every other country in the world, whether it practises apartheid or not. These are matters to which your Lordships may later wish to return.
Your Lordships have raised a number of other matters. I can assure the noble Lord, Lord Avebury, that the Parole Board will take into account all relevant factors, including the fact that an offence was not a crime in this country when the prisoner was sentenced for it. I cannot confirm to him the larger number of prisoners that he referred to; I think it was 778 800. They presumably include untried prisoners. I aim to have more complete figures available at the Committee stage. I recognise the noble Lord's anxiety about our methods of recording citizenship, but again we are considering how we can improve the way in which it is recorded.
Your Lordships referred to a number of other matters. The one principally in my mind is the provision not on the face of the Bill to deal with terrorism. I have made it clear throughout that it would not be appropriate to have categories of crime. Numbers of your Lordships have given reasons why it would not be appropriate to have special categories of crime. I entirely sympathise with the abhorrence of my noble friend Lady Macleod of Borve for the crime, for instance, of trafficking in drugs, which I have always called murder by proxy—and a particularly sordid form of murder at that. But I think that to make specific cast-iron categories makes for had law. That does not mean that this Government's face is not set inflexibly against terrorism. We do not intend to put ourselves in a position where we can be browbeaten into the exchange of prisoners on any grounds, whether terrorists or not. We intend that the public interest shall always be the basis of our decisions when it is a case of not returning a prisoner. Under recent and horrific circumstances, none of your Lordships can be in any doubt where the public interest lies. I commend the Bill to your Lordships.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.