Repatriation of Prisoners Bill [H.L.]

HL Deb 03 April 1984 vol 450 cc608-53

3.57 p.m.

Report received.

Clause 1 [Issue of warrant for transfer]:

The Parliamentary Under-Secretary of State, Home Office (Lord Elton) moved Amendment No. 1:

Page 1, line 5, at beginning insert— ("Subject to the following provisions of this section,").

The noble Lord said: My Lords, it may be for your Lordships' convenience if, in moving this amendment, I speak also to Amendments Nos. 3, 4 and 21. Amendment No. 3: Page 2, line 1, leave out ("may") and insert ("shall").

Amendment No. 4: Page 2, line 2, at end insert—

(" (1A) The Secretary of State shall not issue a warrant under this Act, and if he has issued one, shall revoke it, in any case where after the duty under subsection (1) above has arisen and before the transfer in question takes place circumstances arise, or are brought to the Secretary of State's attention, which in his opinion make it inappropriate that the transfer should take place.").

Amendment No. 21: Page 8, line 1, after ("above") insert ("or in a case falling within section 1(1 A) above").

Your Lordships will recall that at the Committee stage on 5 th March I undertook to consider whether the Secretary of State's discretion to issue a warrant, once the three essential conditions specified in paragraphs (a), (b) and (c) had been met, could be changed to a suitably qualified obligation. I mentioned some examples of circumstances in which the Secretary of State might have cause to change his mind and not issue a warrant after having given his consent to a transfer. One example was where a prisoner to whose transfer the Secretary of State had agreed committed another offence for which he would need to stand trial. It would clearly be inappropriate for the transfer to proceed in such circumstances. The question of transfer would need to be suspended until after completion of the further proceedings.

The noble Lord, Lord Mishcon, suggested that the issue of a warrant could be made mandatory with the qualification, "unless there is some intervening material circumstance". That is at col. 26 of the Official Report of that day. The noble Viscount, Lord Hanworth, suggested the qualification, "unless new circumstances arise". That is two columns later in the Official Report. The noble Lords, Lord Avebury and Lord Melchett, (at columns 27 and 28) suggested that the qualifications should be more explicit.

Having considered this matter very carefully, we have come to the conclusion that it would be reasonable that the Secretary of State should normally have a duty to issue a warrant once the three conditions in paragraphs (a), (b) and (c) of subsection (1) had been met. Amendment 3, accordingly, changes the discretion to a duty by substituting the word "shall" for the word "may". I pause to nod at that stately admission. May I say, as I said at the last stage, that debates about "may" and "shall" in your Lordships' House are always of the greatest interest. Precedent suggests, and learned advice endorses, that very often they mean the same thing. But I am told that in this case those of your Lordships who doubted that can be satisfied—and that is our proposal.

As was accepted, however, by your Lordships at Committee stage, this duty needs to be suitably qualified. We do not consider it prudent to make this qualification too specific as unforeseen circumstances might arise in practice where issue of a warrant would be inappropriate. The qualification in the proposed new subsection (l)(a) in Amendment No. 4 is therefore in general terms. It is intended to cover not only some event or circumstance which occurs after the Secretary of State has agreed to a transfer in accordance with Clause 1(1)(b) but also any pre-existing Bill which comes to the attention of the Secretary of State after he has agreed to the transfer but before the transfer has taken place; for example, the emergence of evidence that the prisoner concerned had been involved in some earlier serious criminal offence. Since it is possible that the circumstances affecting the Secretary of State's agreement to a transfer may come to his attention after he has issued a warrant but before transfer has taken place, the new subsection (1)(a) provides also for the revocation of the warrant in that event.

Amendments Nos. 1 and 21 are consequential upon the two substantive amendments. I believe this group of amendments satisfactorily meets the concern expressed at the Committee stage, and I beg to move.

Lord Mishcon

My Lords, I was the one who dared to suggest that "may" be altered to "shall" and, as a result of that daring, I had the treat that I always enjoy; that is, a dialogue with the noble and learned Lord, who will always teach me law and do it with great grace. On that occasion we wondered whether the provision should not be clearly mandatory so that there it was beyond any peradventure and without any necessary reference to the books to which the noble and learned Lord, Lord Denning, referred.

I am very glad that the Minister has clarified the matter by bringing forward these amendments at Report stage. He has done so with his usual care and consideration with regard to any matter which is debated in your Lordships' House on Bills of which he is in charge, and I am grateful to him.

Lord Denning

My Lords, I should like just to endorse the approval for the amendment. "Shall" and "may" are used interchangeably. Often "may" means "shall" or "shall" means "may". Now, by reason of these amendments, we get any ambiguity cleared up and everything now seems to be most satisfactory.

On Question, amendment agreed to.

4.4 p.m.

Lord Elton moved Amendment No. 2:

Page 1, line 15, leave out paragraph (c) and insert— ("(c) the prisoner has consented to being transferred in accordance with those arrangements,").

The noble Lord said: My Lords, in speaking to this amendment, with your Lordships' leave, I will speak also to Amendment No. 7. Amendment No. 7: Page 2, line 13, at end insert—

("( ) The Secretary of State shall not issue a warrant under this Act unless he is satisfied that the consent given for the purposes of subsection (l)(c) above was given in a manner authorised by the international arrangements in accordance with which the prisoner is to be transferred and was so given either—

1. (a) by the prisoner himself; or
2. (b) in circumstances where it appears to the Secretary of State inappropriate by reason of the physical or mental condition or the youth of the prisoner for the prisoner to act for himself, by a person appearing to the Secretary of State to be an appropriate person to have acted on the prisoner's behalf.").

At Committee stage I readily agreed to consider introducing a Government amendment making subsection (l)(c) of Clause 1 more explicit as regards the circumstances in which consent to transfer might be given on behalf of a prisoner. I explained that consent by parents on behalf of young children would need to be provided for. The circumstances in which the giving of consent on behalf of a prisoner might very rarely be justified will be where the Secretary of State considers the prisoner incapable of deciding for himself because of mental disorder, because of physical disability or because of his young age. The new subsection (2B) proposed in Amendment No. 7 accordingly states this explicitly.

We have also taken the opportunity to guard against a possible lacuna in the operation of the provisions of the Bill. While the rights of parents to take decisions on behalf of their children, at least up to the age of consent, are well established, there is no recognised procedure in law for decisions of this sort to be taken on behalf of those whose mental or physical condition is impaired. We have concluded, therefore, that the most appropriate solution is for the Secretary of State to have power, on the very rare occasions when this may be necessary, to authorise a person to act on the prisoner's behalf. Amendment No. 7 accordingly provides the Secretary of State with the power needed for this purpose, and Amendment No. 2 is consequential upon it. These amendments clarify in two important respects the necessary provision in the Bill for consent to be given on a prisoner's behalf. I beg to move.

Lord Mishcon

My Lords, if I may remind the House, at Committee stage I mentioned the grave concern of the National Association for Mental Health in regard to those who were suffering from some form of mental disorder. Their concern was two-fold: first, who would be consenting on their behalf, and was there provision in the Bill for persons to act on their behalf, for such consent? That has now been answered by the noble Lord the Minister in his Amendment No. 7. It is clear that the Secretary of State can appoint such a person, and the power is now given.

However, perhaps I may also remind the House that there was a second matter of concern which I expressed at the same time—and again it was the concern of the association: that nothing was laid down in this Bill, and nothing had been said about what the procedure would be if it were to be outside the Bill, as to the guidance the Secretary of State would require—and one would have thought that necessarily it would need to be medical guidance—on whether it was in the medical interests of the patient that there should be this transfer. Of course, there is a procedure under the Mental Health Act 1983, which applies in rather different circumstances.

The noble Lord the Minister promised that he would consider that second matter as well and I know the House will allow me to read a very short extract from a letter that he was good enough to send me, only so that it appears on the record and that the procedure is abundantly clear. In the course of that letter, which is dated 2nd April 1984, the Minister said this: What we have in mind, therefore, is that if a case of this sort should arise we should adhere as closely as possible to the procedure which Parliament had laid down in the Mental Health Act 1983 for the removal abroad of alien mental patients. This would entail the Secretary of State being satisfied that transfer was in the patient's best interest and that proper arrangements had been made for the transfer and for his care or treatment in the other country. It would be outside the formal remit of a mental health review tribunal to advise on such a case but the intention would be to seek the views of a panel of experts constituted in exactly the same way as a mental health review tribunal and consisting of persons who sit on such tribunals". I am sure that the society I mentioned to your Lordships will be very grateful for that statement which was contained in the Minister's letter and which makes quite clear the procedure which will be adopted in protection of mental patients from abroad who will be transferred from this country.

Lord Donaldson of Kingsbridge

My Lords, we are grateful to the noble Lord for introducing this amendment, which I think covers the situation as well as can be done. I am a little worried about one thing: the expression "mental or physical condition". Supposing somebody is a very disturbed character, as some are apt to be, and is absolutely determined not to be brought back, but comes under this definition of being mentally or physically incapable of making proper decisions. In such a case can the Secretary of State overrule his determination not to be brought back, and bring him back? This is an awkward question and I ask it because I think we ought to face it. These cases are so marginal, but we shall get cases of this kind and it is at least as well to ventilate the situation.

Lord Avebury

My Lords, I, too, am very grateful to the Minister for the care with which he has considered the points that were raised at Committee stage, not just on his amendment but on all the cases where he agreed to look at what was suggested by your Lordships in Committee. We are most impressed with the work that he has been doing, and are grateful to him for the attention that he has paid to the points that we raised. On this one, I am very happy about the way that it is expressed, except that I think, following what the noble Lord, Lord Mishcon, has said, it might have been a good idea if there had been some link between this Bill and the Mental Health Act 1983.

The wording which was in the Minister's letter that the noble Lord. Lord Mishcon, read out sounded to me very like Section 90 of the Mental Health Act 1959, which I think was transferred intact into the 1983 Act. That provides, as the Minister's letter said, that proper arrangements have to be made for the care and treatment of a patient in his country of origin if he is to be sent overseas. The Minister has said that he would adhere to that provision and that, obviously, in the case of British patients being brought back from special hospitals overseas to equivalent institutions in this country, that would apply also. So I am suggesting for further consideration when the Bill reaches another place that it might be an idea, in the case of these psychiatric patients, to make it explicit on the face of the Bill that the arrangements mentioned in the 1983 Act will be followed.

Lord Melchett

My Lords, may I echo what the noble Lord, Lord Avebury, has said about the lengths to which the Minister has gone to meet a number of points made at Committee stage? It might be worth mentioning that Amendment No. 11, which is in the names of the noble Lord. Lord Donaldson, and others, including myself, will clearly be withdrawn as it is identical to Amendment No. 7, to which the noble Lord is now talking, which shows the lengths to which he has gone to pre-empt the suggestions made by noble Lords in Committee.

For my part, I am inclined to think that the wording in the noble Lord's Amendment No. 7 is right, because it seems to me that in the circumstances that we are talking about there will be quite a variety of cases—albeit a very small number of cases—where people are not in a position to exercise a judgment and to make a decision. There will be cases where people are so physically ill, for example, as opposed to being mentally ill, that they are not able to exercise a decision, and where it would be right for the Secretary of State to recognise somebody else, a relative in this country, as being in a position to take a decision for them. So for my part, I am not really persuaded that it is necessary to go beyond the terms of the amendment, and I am very grateful to the noble Lord.

Lord Elton

My Lords, I am grateful for the gracious way in which all noble Lords have received our efforts to meet your Lordships' wishes. If I may very briefly, with your Lordships' leave, address the three points raised, I would say to the noble Lord, Lord Donaldson, that if the prisoner or patient in question was incapable of making a rational decision, the Secretary of State would be empowered to overrule him. The delicacy of the issue is on the judgment, not so much of whether he should come back but of whether or not he is capable of a rational decision.

That leads me to the noble Lords, Lord Avebury and Lord Melchett, and, in view of the late stage and the clarity with which they have expressed their views, the best thing I can do is simply to undertake to draw what they have said to the eye of my honourable friend before this Bill goes to another place, and that I freely do.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 3:

[Printed earlier: col. 609.]

The noble Lord said: My Lords, I have spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 4:

[Printed earlier: col. 609.]

The noble Lord said: My Lords, on the same grounds, I beg to move. On Question, amendment agreed to.

Lord Avebury moved Amendment No. 5:

Page 2, line 6, after ("citizen") insert ("or had indefinite leave to remain in the United Kingdom and had been ordinarily resident in the United Kingdom at any time in the two years preceding his conviction for the offence for which he was imprisoned;")

The noble Lord said: My Lords, I have to begin with an apology to the Minister and to your Lordships for the fact that all the amendments that are tabled in the names of myself and my noble friends have a star against them. We were working rather against the clock because, as the noble Lord realises, we saw the Government's amendments only on Thursday, and we were not able to consult with our advisers until the week-end and to draft our own amendments, in the light of what had already been tabled by the Government, until yesterday afternoon. So I apologise to your Lordships for the lateness with which we have been able to act in this matter.

The first amendment in our names is a follow-up to one that we moved in Committee, when we were discussing the circumstances in which the Secretary of State would exercise his discretion to issue a warrant under Clause l(2)(b) of the Bill to provide for the transfer of a person having close ties with the United Kingdom back to this country. The Minister has since then been good enough to write to me explaining what he has in mind.

He said, first, that in some cases a person will continue to qualify for entry in the capacity in which he was originally given an indefinite leave to remain, and the examples that he mentioned are those of a wife or a dependent child of a man who has settled here. He said that in those cases the fact that he or she has been absent for more than two years will not prejudice the entitlement to return. The question that occurs to me there is this. If the person was originally entitled to enter as a dependent child but, when he comes to the end of the sentence, he is, with the efflux of time, over the age of 18, will the Secretary of State invariably exercise his discretion to allow him to re-enter? As the noble Lord will recall, there have been one or two cases of that kind, where a person was below the age of 18 when he or she was sentenced overseas but where, at the end of the two years, he or she was above that age and would not therefore have been entitled to enter, if an application had been made in respect of him or her, as a dependent child of a person settled in the United Kingdom at the end of that period.

The second question that arose in my mind on this passage in the Minister's letter was whether a spouse would always be given leave to re-enter even if, as a result of the separation caused by his serving a sentence of imprisonment abroad, the marriage had broken down, as very often happens with people serving sentences in the United Kingdom. If a person who has entered the United Kingdom perfectly legitimately as a spouse, and who has been given indefinite leave to remain, is then sentenced overseas and perhaps serves two to three years there, and if in the meanwhile the spouse in the United Kingdom has brought an action for divorce because of the separation and strain that that imposes on the marriage, would the person who had been granted indefinite leave to remain be admitted at the end of a period of more than two years?

In general, it would be a good idea to say in advance whether particular categories of people would be re-admitted, rather than leave it entirely to the Secretary of State's discretion. This amendment is an attempt to define a group which would have to be re-admitted, while still leaving the Secretary of State to exercise his discretion in respect of all other categories of persons.

The thinking behind the amendment is that if the person had not been in custody at the end of the two years' absence from the United Kingdom, then he would have been able to come back here and exercise his entitlement to return and he could be prevented from doing so only as a result of his imprisonment. Clearly, if at the end of the imprisonment he is denied the right to come back here, then this would be to punish him a second time, because without that imprisonment he would have returned to the United Kingdom and taken up residence here in the normal way. I hope, therefore, that the noble Lord the Minister will agree to this very minor, as I see it, amendment, which would normally be in conformity with the way in which the Secretary of State will exercise his discretion anyway. I beg to move.

4.20 p.m.

Lord Elton

My Lords, I am grateful to the noble Lord, Lord Avebury, for his preface to the amendment. While I accept that the star appearing against an amendment on a Marshalled List is not usually a merit star, I ought to tell your Lordships that as we tabled amendments a day later than I normally set as the minimum and as I was also visiting various prisons away from London at the end of last week, I was unable to sign the letter which had been prepared for me to send to the noble Lord, Lord Avebury, and to other noble Lords. Therefore I have no grounds for complaint, although the lateness of the tabling has caused us a certain amount of distress. I hope therefore that your Lordships will be indulgent of any defects in the replies that they receive as a result.

As the noble Lord, Lord Avebury, said, I have written to him about the exercise of the Secretary of State's discretion to admit to the United Kingdom persons who are not British citizens. In that letter I confirmed what I said at the Committee stage, that decisions about the repatriation of prisoners who are subject to immigration control will include consideration of whether it would be in accordance with immigration policy to admit them. I emphasise that it would, in our view, be quite wrong if the arrangements for repatriation provided for in the Bill were to be operated so as to allow people to enter this country who would not qualify if they had not been convicted of a crime. At the same time, where persons have close ties with the United Kingdom I should expect that in many cases they would be admissible under our immigration policy.

As I said before, I can give no blanket assurance about the admission of all persons who previously had indefinite leave to enter the United Kingdom and who had been in prison abroad for more than two years. The decision in any individual case would depend on whether the person's return would be consistent with normal immigration policy and would vary from case to case. There should be no difficulty about persons who would qualify for entry in the capacity in which they were originally given indefinite leave to enter—for instance, where the person is the wife or dependent child of a man settled here. In those cases, the person's entitlement to enter the United Kingdom will not be prejudiced by the fact that he has been absent from the United Kingdom for more than two years. In certain other cases, a person may qualify for entry on the ground that he has lived here for most of his life. Paragraph 57 of the immigration rules applies here.

Another ground would be that he is a Commonwealth citizen who was settled here on 1st January 1973 and has been settled in the United Kingdom for the last two years. Otherwise, the only provision under which a person may qualify to return is paragraph 56 of the immigration rules, which states that the person must not have been absent from the United Kingdom for more than two years. This rule is intended to preserve the rights of entry of people who maintain close links with this country, and in general we are not prepared to set aside the two-year limit. An exception may occasionally be made where a person's absence was caused by circumstances beyond his control, but the fact that a person commits a crime which leads to his being imprisoned would not on its own normally be regarded as a sufficient ground for making an exception. In looking at any individual case, consideration will be given to the nature of the offence and how long the person has been absent before he commits it.

I should add that persons who have been convicted of certain serious crimes abroad may be debarred from returning, even where they would otherwise qualify for entry under the immigration rules. Paragraph 83 of the rules provides that such persons must be refused leave to enter unless there are strong compassionate grounds for admitting them. There are exceptions in respect of the wife or child under 18 of a man settled here, or of a Commonwealth citizen who was settled here on 1st January 1973. These exceptions would no doubt apply in some of the cases about which the noble Lord was particularly concerned. In reaching a decision on whether such a person could be repatriated under the Bill, it would be necessary to consider also whether there were strong compassionate grounds, or whether any of the exceptions applied.

I now turn to the noble Lord's amendment. Its effect is to extend the scope of Clause 1(2)(a) to include certain people who are not British citizens. At present, Clause l(2)(a) applies only to British citizens. People who are not British citizens may be repatriated under the powers in Clause 1(2)(b), but this is subject to their having close ties with the United Kingdom and only if the Secretary of State judges it appropriate. It is right to distinguish between British citizens and others in the way that the Bill now does and to make the transfer of non-British citizens discretionary. A person who is a British citizen has an absolute right to entry to this country. He is not subject to immigration control. If a British citizen wishes to serve his sentence in this country, then prima facie he ought to be transferred here, but the same cannot be said of people who are not British citizens.

The category of people referred to in the noble Lord's amendment who have had indefinite leave to remain here and who have been ordinarily resident here do not have an absolute right of entry to this country. They are subject to the Immigration Act and the immigration rules. The present position under the rules is that a person who has indefinite leave to remain may be readmitted to this country provided that he is absent for less than two years. His entry is still conditional on certain other requirements in the immigration rules, including a rule which prohibits the entry of anyone who has committed a serious offence, unless there are strong compassionate grounds otherwise.

The amendment would thus pick out as a special category for entry some people who would not qualify for entry under the immigration rules approved by Parliament. As I have already said, it is not intended that the Bill should enable a person to be repatriated who would not qualify for entry under normal immigration policy. We do not think that this Bill should be used as a means of changing the immigration rules, which this amendment would, perhaps as a by-product, do. That question should be addressed in its proper context, and that context is not this Bill. The Bill is not intended to alter the immigration rules or the immigration status of those whom it affects. As drafted, the Bill is consistent with that principle. It allows people who are not British citizens to be repatriated if they have close ties and the Secretary of State thinks it appropriate. We do not think it is necessary or appropriate to go further, and I am sorry that it has taken me so long to state that simple fact.

Lord Melchett

My Lords, it seems to me that the Government are making a bit of a meal of this. I do not say that simply because of the length of time it took the noble Lord to say that he did not approve of the amendment. For a start, whether the amendment is in the Bill or not, the Secretary of State still has the discretion to accept a prisoner back to this country or to refuse the transfer of the prisoner. That discretion is absolute. If, for example, a person is a convicted terrorist and the Government decide that his transfer back to this country is undesirable, whether he is a British citizen or someone who has indefinite leave to remain in the United Kingdom, the Government, as the amendment says, are still free to refuse him. That is why the Government are making a bit of a meal of it. It does not make that much difference to the Government's powers. It seems to me that the Government, in suspecting the motives of those who have put their names to this amendment—as I thought was the implication of the noble Lord's reply in believing that this is an attempt to change the immigration rules—have missed a point which would have been helpful to them.

I tried to follow the point the noble Lord was making, and it seemed to me that the Government, if the amendment is not accepted, will have to look behind the offence for which somebody has been convicted abroad, if it has prevented them from returning to the United Kingdom for two years, and will have to decide whether they committed the offence, whether they were reasonably convicted of it and whether the offence they have been convicted of would or would not be an offence in this country. That involves the Government in making a number of judgments about the criminal jurisdiction or some other form of jurisdiction (because we know that there may be other than criminal jurisdiction in other states), and deciding whether that person was properly charged, whether they had a reasonable hearing, and so on, in order to reach a judgment about whether they had a reasonable excuse for remaining out of the country, while in gaol abroad, for the period that they did.

Therefore it seems to me that the Government are introducing many unnecessary and difficult complications into the decision-making process, which this amendment would have allowed them to avoid in most cases. Therefore I hope that the noble Lord will try to look at the amendment on its merits in terms of this legislation and the process that the Government need to go through to implement it in particular cases and not be quite so concerned as it seemed to me that the noble Lord was about the possible implications of what is clearly a very sensitive matter in his mind—namely, the immigration rules.

Lord Denning

My Lords, I hope your Lordships will not accept this amendment. It is perfectly clear that in the ordinary way a British citizen has a right to come to this country—but as to a person who is not a British citizen, he is subject to the immigration rules. I should have thought that the immigration rules which we have often had to consider can be applied to this particular case and considered without any of the complications of this amendment. I would ask your Lordships to reject it.

Lord Avebury

My Lords, we are talking about people who have close ties with the United Kingdom and not about just any old foreigner who wishes to come back and serve the rest of his or her sentence in the United Kingdom. As the noble Lord, Lord Elton, is no doubt aware, some cases have already been submitted to his colleague Mr. David Waddington of people who did remain overseas for more than two years because they were serving sentences of imprisonment there. The Minister was good enough to exercise his discretion in their favour and to readmit them, notwithstanding the fact that they did not qualify as returning residents under paragraph 56 of the rules, as the Minister has said.

All I am trying to do with this amendment is to limit the exercise of discretion in a manner that conforms with the way in which the Home Office is already behaving. It has become the practice, as I see it, that minors who are Commonwealth citizens, having spent most of their lives in the United Kingdom with their parents, and having entered as dependants when they were very young, and who are convicted of offences overseas while in their teens, for example, are normally readmitted even if they have spent more than two years overseas. If that is the practice, then the Minister is not giving anything away by agreeing to the limits on discretion which are suggested in this amendment.

If I may say so also, in spite of the fact that the Minister explained very carefully what his reaction was to the amendment we moved in Committee, he did not address himself specifically to the two questions I asked in my introductory speech. The first was, what would happen normally in the case of children who are minors when they reach the age of 18 while overseas, and who therefore no longer qualify as dependants in their own right? Secondly, what would happen in respect of spouses whose marriages foundered while they were serving sentences of imprisonment overseas because of the separation or for other reasons; would they be entitled to readmission? We cannot really pursue these details at this late stage on Report, but I would request the noble Lord the Minister to put these matters before his colleagues in another place, so as to make sure that they are properly considered before this Bill gets there. Perhaps further thought may be given to them in the Home Office, with a view to specifying more exactly the circumstances in which this discretion would then be exercised.

Lord Elton

My Lords, with the leave of the House, I will be very brief because the noble Lord has, I believe, given a signal that he will allow this matter to be re-addressed in another place, and so I will not delay your Lordships. I just ought to say that I entirely take what I suppose was the drafting point of the noble Lord, Lord Melchett, in respect of the discretion remaining in subsection (2)(b). I thought it important to address the principle in the amendment, which was, I thought, to seek to bring about the position to which I addressed myself.

I should re-emphasise that if I were to give an answer in concrete terms to the two instances which the noble Lord, Lord Avebury, has brought forward (or to any other instances) I should be removing a discretion and giving an advantage—if the answer were to be, "Yes, there is to be a waiver on these occasions"—beyond that which other people in similar circumstances would have. It would also be entrenching a right to return to this country which I believe ought not be entrenched when one remembers that one is talking about people who, having been accepted for residence here, have gone away and committed a crime in another country and been imprisoned for it. Imprisonment is usually the fault of the prisoner. That does change circumstances and it is right that the Secretary of State ought to be in a position to review those circumstances when the prisoner asks for the right to come back again. I thought that I ought to put that on the record so that the noble Lord would not let this matter go to another place under a misapprehension about what I consider the Government's position to be.

Lord Avebury

My Lords, obviously I am not entirely happy with the Minister's reply. It is a matter that ought to be pursued in another place and therefore, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.35 p.m.

Lord Elton moved Amendment No. 6:

Page 2. line 13, at end insert—

("(2A) The Secretary of State shall not issue a warrant under this Act, other than one superseding an earlier warrant, unless he is satisfied that all reasonable steps have been taken to inform the prisoner in writing in his own language—

1. (a) of the substance, so far as relevant to the prisoner's case, of the international arrangements in accordance with which it is proposed to transfer him,
2. (b) of the effect in relation to the prisoner of the warrant which it is proposed to issue in respect of him under this Act,
3. (c) in the case of a transfer out of the United Kingdom, of the effect in relation to the prisoner of so much of the law of the country or territory to which he is to be transferred as has effect with respect to transfers under those arrangements, and
4. (d) of the powers of the Secretary of State under section 6 of this Act;

• and, the Secretary of State shall not issue a warrant superseding an earlier warrant under this Act unless he is satisfied that all reasonable steps were taken so to inform the prisoner in relation to the earlier warrant before the earlier warrant was issued.")

The noble Lord said: My Lords, it may be for your Lordships' convenience if I speak also to Amendment No. 20:

Amendment No. 20: Clause 6, page 7, line 43, at beginning insert ("Subject to section 1 (2A) above,")

The proposed new subsection (2A) of Clause 1 is intended to give effect to three undertakings which I gave at Committee stage. The noble Lord, Lord Mishcon, proposed an amendment relating to the provision of information for prisoners in writing, in their own language, to help them decide whether to consent to transfer. I explained why we did not consider it appropriate to include certain of the items of information included in that amendment. In accepting the principle behind the amendment, I indicated that the Government amendment I should be proposing would be of a somewhat narrower scope. Our officials have since discussed this matter with officials of the National Council for the Welfare of Prisoners Abroad. I hope that this amendment will cover the items which it is generally agreed are practicable for inclusion in the proposed requirement.

Paragraph (a) of the proposed new subsection provides for prisoners to be informed of the substance of the relevant international agreements. This provision is in terms similar to the obligation imposed on sentencing states by Article 4 of the Council of Europe's convention on the transfer of sentenced persons. Your Lordships will wish to know that the Council of Europe is likely, later this year, to publish as a formal recommendation to governments of member states a standard text for the purpose of giving effect to this obligation.

The intention will be that each country which ratines the convention should deposit with the Council of Europe secretariat an authoritative translation of this standard text in its own language, modified as each country may consider appropriate. The secretariat will then copy each version of the standard text to the other countries which ratify the convention, so that each country will be able to provide prisoners who are nationals of other participating countries with information on the substance of the convention in their own language.

The United Kingdom, for instance, should receive in due course appropriate versions of the text for issue to prisoners of French, German, Italian, Spanish and other nationalities. This should be a very useful arrangement for ensuring that prisoners are reliably informed about the convention. I should in fairness add that it was the United Kingdom which suggested the arrangement and provided the initial draft of the standard text during the negotiations which led to the convention. I do not doubt that this will make some of your Lordships read that text with very close and critical attention.

Paragraph (b) of the proposed new subsection (2A) provides for the prisoner to be informed of the effect of the United Kingdom warrant which would be issued if he were to be transferred. It applies to both inward and outward transfers but its main relevance is to transfers to the United Kingdom from abroad. Information as to the effect of the warrant for inward transfers would include the type of custodial regime under which the prisoner would be detained; an indication of the maximum term to be served on transfer to the United Kingdom; and details of arrangements for remission and parole. Paragraph (c) relates to information to be provided to nationals of other countries who are eligible for transfer from the United Kingdom. The information should generally be on similar terms to that provided for British nationals abroad under (b), but the Secretary of State will have to rely on the authorities of other countries for the provision of authoritative information in each case.

The second undertaking to which subsection (2A) is intended to give effect is that which I gave to the noble Lord, Lord Avebury, in the context of his Amendment No. 67 at Committee stage. That proposed extending Clause 6 to preclude the issuing of a new warrant to correct erroneous material information given to the prisoner prior to his consenting to transfer.

Amendment No. 20 to Clause 6 makes it clear that a warrant may be issued in substitution for a revoked warrant only in accordance with the new subsection (2 A) of Clause 1. Thus a warrant superseding an earlier one may be issued only if the Secretary of State is satisfied that, before that earlier warrant was issued, the prisoner had been informed of the effect in relation to him of that earlier warrant. As I have already indicated, in the case of a transfer into the United Kingdom from abroad, the Secretary of State could not be satisfied that all reasonable steps had been taken to enable the prisoner to give a fully informed consent unless the prisoner had been given correct information concerning the length of the term he would have to serve and the provisions which exist for that term to be reduced by remission or parole.

If a warrant were issued following the consent of the prisoner in the light of the information he had been given, a superseding warrant would be possible only to the extent that it, too, reflected that information. In other words, if the earlier warrant proved to be defective because it was at variance with the material information given to the prisoner before its issue, the final words of subsection (2A) would prevent its being superseded by a fresh warrant which likewise failed to accord with that material information.

The third undertaking was also given to the noble Lord, Lord Avebury, after he had proposed Amendment No. 66 at the Committee stage to prevent the Secretary of State issuing a new warrant containing provisions less favourable than those in the original warrant unless this was provided for in the original warrant and in the relevant international arrangements. Paragraph (d) of the proposed subsection (2A), and the words of the amendment which follow it, ensure that a warrant substituting less favourable terms will be possible only if, as required by paragraph (d), the prisoner has been made aware before he consented to the issue of the original warrant of that possibility and of the circumstances in which it would be possible in his case to act under Clause 6.

I have spoken again at some length on this amendment as it embraces a number of important matters about which considerable concern was expressed at the Committee stage. I hope that your Lordships will agree that it deals adequately with these matters. I beg to move.

Lord Mishcon

My Lords, I think that it will be for the convenience of the House if such debate as takes place on this amendment also takes place on Amendments Nos. 8 and 9.

Amendment No. 8: Page 2, line 13, at end insert—

(" ( ) The Secretary of State shall not issue a warrant under this Act, other than one superseding an earlier warrant, unless the prisoner before consenting to the proposed transfer was informed in writing in his own language—

1. (a) of the substance, so far as relevant to the prisoner's case, of the international arrangements in accordance with which it is proposed to transfer him;
2. (b) of the effect in relation to the prisoner of the warrant which it is proposed to issue in respect of him under this Act, including where possible details of his earliest possible release date and the provisions regarding remission and parole that would apply to him; and
3. (c) of the powers of the Secretary of State under section 6 of this Act;

• Secretary of State shall not issue a warrant superseding an earlier warrant under this Act unless the prisoner was so informed in relation to the earlier warrant before the warrant was issued.").

Amendment No. 9: Page 2, line 13, at end insert—

(" ( ) The Secretary of State shall not issue a warrant under this Act other than one superseding an earlier warrant, unless he is satisfied that all reasonable steps have been taken to inform the prisoner in writing in his own language in the case of a transfer out of the United Kingdom, of the effect in relation to the prisoner of so much of the law of the country or territory to which he is to be transferred as has effect with respect to transfers under those arrangements, and, the Secretary' of State shall not issue a warrant superseding an earlier warrant under this Act unless he is satisfied that all reasonable steps were taken to inform the prisoner in relation to the earlier warrant before the warrant was issued.").

I propose to deal with Amendment No. 8 and I have no doubt that the noble Lord, Lord Donaldson, will follow me in regard to Amendment No. 9.

At the Committee stage, what we wanted to secure by an amendment which we then put down was that "consent" truly meant consent. That implies that the party who gives the consent really knows all the material facts that he needs to know to make up his mind whether he agrees or disagrees with the transfer. After saying that there were some difficulties in his path in regard to the amendment that was then put down and in complying with some of the particulars in the amendment, the noble Lord the Minister at column 17 said this:

That said"—

that is the part that deals with the difficulties— we recognise the justice of the principle behind this amendment, and, what is more, we sympathise with it".—[Official Report, 5/3/84; col. 17.]

The noble Lord carried through his sympathy not just mentally and in his heart but by putting down this amendment. We are grateful to him for that. Your Lordships may therefore think that it is possibly somewhat ungracious that we do not immediately rise to say how happy we are with it and that we accept it. But there is a reason, and it is not an ungracious one.

If your Lordships will be good enough to turn to Amendment No. 8, you will find that it follows, word for word (I think I am correct in saying), the amendment which your Lordships have just listened to and which was moved by the noble Lord the Minister—that is, until one gets to the last part of paragraph (b). Your Lordships will see in the third line these words occurring: including where possible details of his earliest possible releae date and the provisions regarding remission and parole that would apply to him".

That is possibly the most material consideration for any prisoner—to be told what would be his earliest possible release date if he came back to the United Kingdom, and indeed if he were going elsewhere from the United Kingdom, and what provisions regarding remission and parole would apply to him if he changed his country of imprisonment.

The words "where possible" are put in on purpose. It was very well realised that, to take, for example, a prisoner who has a life sentence, it is quite impossible to give the information as to when he will be released. As your Lordships know, in this country that depends on many considerations—on the discretion of the Secretary of State and matters of that kind—so the words "where possible" cover such a contingency.

This is a very material matter. I repeat that it is possibly one of the most material matters that the prisoner ought to have before him before he is asked to give his consent. Otherwise, in my respectful submission, "consent" does not mean consent at all.

Those who drew up this amendment were very considerate to the Government. They said, "Possibly you have gone too far in putting into one amendment and one clause provisions that relate to transfer in and transfer out", so there is a separate amendment put down in the name of the noble Lord, Lord Donaldson, and others, and I am happy to be associated with it. That is Amendment No. 9. It puts rather less of a duty upon the Secretary of State in relation to the matters dealt with. As I have said, the noble Lord, Lord Donaldson, will be dealing with that matter. I am content, for my part, to ask your Lordships to prefer Amendments Nos. 8 and 9 to the amendment now before you only because it omits the very words which I think are so important in regard to a prisoner's rights before he consents.

Lord Donaldson of Kingsbridge

My Lords, between them, Amendments No. 8 and 9 are really an amendment to Amendment No. 6. I do not think that I have anything to add to what the noble Lord said from the Labour Front Bench. If Amendment No. 8 were accepted, then you need Amendment No. 9; if Amendment No. 8 is not accepted, you do not need Amendment No. 9. There is nothing particular in it beyond that. In many ways we could have done this simply by having an amendment to Amendment No. 6, but that is not a very graceful way of doing it and it was thought that this was a better way.

Lord Denning

My Lords, I should have thought that Amendment No. 8 was unnecessary, because the words in Amendment No. 6 are: "the effect in relation to the prisoner of the warrant". The term "the effect" includes not only the immediate matter but also, I should have thought, details, where possible, of the release, and so forth, and parole. It would seem to me that the existing words in the proposed Amendment No. 6 would cover the position sufficiently without making it, in effect, mandatory, as in Amendment No. 8. In other words, I would support Amendment No. 6.

Lord Avebury

My Lords, I am most grateful to the noble Lord the Minister for the careful way in which he considered Amendments Nos. 66 and 67 which we moved at the Committee stage and for the way in which he has embodied them in his amendment. That part of it is extremely satisfactory to me, if I may say so, and I hope to my noble friends as well.

With regard to what the noble and learned Lord, Lord Denning, said, we listen to him with enormous respect, and if he says that the wording in the Minister's amendment gives us what we want, we should be content to leave it at that. However, I should like to be assured that in the case of transfers inwards an effort is made to give the prisoners this vital information. As the noble Lord, Lord Mishcon, says, anybody who has spent time in prison knows that it is of absolutely critical importance to the whole way of life and the whole thinking of a person in custody. He is constantly working out how many weeks or months he has left to serve. He wants to know what would be the earliest date that he can get out, if he earns full remission and if he qualifies for parole, and what changes there will be in the length of the sentence according to the way in which these factors operate. If subparagraph (b) of the Minister's amendment means that he can invariably be given this information, then obviously it would be very reassuring. But one would like to see it written into the face of the Bill rather than be left to be implied by the word "effect". I do hope that some clarification can be given, if not on the face of the Bill, by the Minister being very specific in the reply he now makes.

4.50 p.m.

Lord Elton

My Lords, I am indebted to the noble and learned Lord, Lord Denning, because other noble Lords are prepared to accept from him phrases which apparently they do not accept from me. May I just repeat what I said when I introduced this amendment? Of course I spoke at some length and attention may have wandered but I will re-read one sentence: As I have already indicated, in the case of a transfer into the United Kingdom from abroad, the Secretary of State could not be satisfied that all reasonable steps had been taken to enable the prisoner to give a fully informed consent unless the prisoner had been given correct information concerning the length of the term he would have to serve and the provisions which exist for that term to be reduced by remission or parole.". The emphasis was different and so indeed was the authority of the voice behind that, but the message was the same. I hope your Lordships will be content with our amendment.

Lord Mishcon

My Lords, I am not quite sure that I am in order, but having said that I was going to speak to Amendments Nos. 8 and 9 and certainly to No. 8 in the debate on Amendment No. 6, can I spare your Lordships another speech and another moving of Amendment No. 8 by replying now on this amendment—and, I assure your Lordships, doing it very shortly?

Of course I heard what the noble Lord the Minister said, and it will be on the record. That is where it stays. Not all your Lordships' debates are read with the avidity outside as they are by your Lordships who may be reading your own speeches in the Official Report. We are dealing with an Act of Parliament and I shall always bow, as I have said before in the course of my remarks today, to the learning of the noble and learned Lord, who I regard very much when I hear him talk law as my teacher, as I have also said before, and I am glad to be the pupil.

But pupils nowadays have the right to turn round to their teachers and debate with them. I would merely say to the noble and learned Lord that the words here are "the effect" and there can be an argument as to what "the effect" includes. The noble Lord the Minister says in his remarks—and he had to say this so that we knew what he meant by the words "the effect"—that of course this would include giving particulars of the sentences and the remission.

What is the point of leaving matters to doubt, especially when this Act of ours will be read in other countries with whom we will have an agreement? Why should it not say what the Minister says it means and which the noble and learned Lord says it means? Why should it not spell it out? It is just two more sentences on the statute book, but it removes a doubt. What a cheap cost that is for removing a doubt and for letting all the countries who might see this Act know exactly what we mean and exactly what the duties are.

I hope that the noble Lord the Minister, having acknowledged that these are essential things for the prisoner to know, and having seen in the amendment the words "where possible", will, with his grace and the charm that we have all got used to in this House, say that upon reconsideration he can admit these words so that there is no longer any doubt, and all of us will go away happy; and prisoners, who may have the benefit of this amendment, will be grateful.

Lord Melchett

My Lords, I wonder whether I can just add to what my noble friend has said. It does seem to me that there is rather more room for doubt about the meaning of the word "effect" than the noble and learned Lord, Lord Denning, and the noble Lord the Minister have suggested. After all, the effect of the warrant is to transfer the prisoner back to this country. We are talking about prisoners coming back here. It is surely the effect of other legislation, the legislation governing parole, remission of sentence and so on, which will affect the length of the sentence. I am not a lawyer and I do not think any of us are likely to be sitting in the court which may be called upon to decide this matter. It will not be done, as all of us know, with any reference to what is said in debates in your Lordships' House: it will be done solely by reference to what is said on the face of the Bill. It does seem to me that there is at least ground for argument for saying that the effect of the warrant is to transfer the person back here and it is the effect of the other legislation, which may change in the course of the person's imprisonment abroad or other changes that may be made, which will affect the earliest possible release date.

I urge the noble Lord to have one more look at this and to take some further advice before we reach the Third Reading of the Bill in this House. As has been said by my noble friend with great emphasis—and I think quite rightly—this is the one bit of information which it is vital for a person to have when they are imprisoned or incarcerated abroad, in order to make a sensible judgment about whether or not a transfer is in their interests. It is this, above all else, which they need to know.

May I make the point to the noble Lord, as he has said it in an earlier debate, that not all these people will be imprisoned for things that we consider are criminal offences. Some of them may well be incarcerated for things that they did which we fully support and which have the full support of Her Majesty's Government, or for things which we believe it is quite wrong for anybody to be incarcerated for. So we are not talking in this Bill only about people who have committed crimes in the terms which we understand it, which have been sentenced by due process of law in terms which we understand, and which are held in custody on any grounds which we in this country would think are justified. I hope all of us will bear that thought in mind when discussing the provisions of the legislation.

Lord Elton

My Lords, I am not sure whether our rules of order normally permit your Lordships to give me leave to speak three times but we are speaking to three amendments so perhaps you will be indulgent. May I say to the noble Lord, Lord Mishcon, that I do believe that the amendment which we have before us in my name will have the effect that he wants. He would like to see it spelt out so that he who runs may read and he who runs abroad may read.

I do not have a definite objection in principle to incorporating the words that he wants in the Bill. I strongly suspect we shall get into very deep water when we look at it—as we shall—when it comes to defining things like remission and parole. I may be wrong on this, but I want to make it clear that I think that what appears to be quite simple to achieve in drafting terms may be quite difficult. Therefore, when I say that we will look at this, I would not want your Lordships to think that I was lightly assuming responsibility for finding a niche in the Bill for the terms that the noble Lord has put in his amendment because I think we may find that the terms would require definition somewhere in the Bill, and I think that we could find that that would be quite a difficult thing to do. But I have listened carefully to what your Lordships have said. I recognise your reasons for wanting something on these lines and I will do what it seems to me proper to do in that respect.

Before I sit down, may I say that I of course accept what the noble Lord. Lord Melchett, quite rightly reminded your Lordships of—and reminded me of, indeed—that whereas most prisoners are in prison for their own fault, the fault is not always something that would appear to be a fault to us in this country, and we need to remember where our sympathies sometimes lie.

Lord Mishcon

My Lords, I am most grateful.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 7:

[Printed earlier: col. 610.]

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 2. I beg to move.

Lord Donaldson of Kingsbridge

My Lords, as I have down Amendment No. 11, which is in exactly the same words, I shall without further elaboration support this amendment.

On Question, amendment agreed to.

Lord Mishcon had given notice of his intention to move Amendment No. 8:

[Printed earlier: col. 621.]

The noble Lord said: My Lords, in the light of the remarks to which we have just listened, I do not propose to move this amendment.

[Amendment No. 8 not moved.]

[Amendment No. 9 not moved.]

5.1 p.m.

Lord Avebury moved Amendment No. 10:

Page 2, line 13, at end insert—

("(2B) In the case of a transfer into the United Kingdom, the Secretary of State shall not issue a warrant under this Act, other than one superseding an earlier warrant, unless he is satisfied that all reasonable steps have been taken to ascertain whether any charges are intended to be brought in the United Kingdom against the prisoner and whether any warrants for his arrest in the United Kingdom remain unexecuted, and the prisoner has been informed in writing in his own language of any such charges or warrants, and the Secretary of State shall not issue a warrant superseding an earlier warrant under this Act unless he is satisfied that all reasonable steps were taken so to inform the prisoner in relation to the earlier warrant before the warrant was issued.")

The noble Lord said: My Lords, I am not quite sure why this amendment is down in my name because it is exactly the same as one that was moved in Committee by my noble friend Lord Donaldson, dealing with the question of information being given to a prisoner regarding the possibility that charges may be brought against him when he is brought back to the United Kingdom. In the course of his remarks on the earlier amendment, the noble Lord, Lord Elton, pointed out that the prisoner himself ought to be well aware of any charges that could be brought against him for past activities in this country. That would of course be true if the person concerned had been guilty of the offences.

But we are also postulating that when the prisoner is returned from a foreign country there may be brought against him charges of which he is wholly innocent. This is not a far-fetched proposition. One can remind oneself of the recent BBC programmes, "Rough Justice" in which it was shown that many people had been convicted of extremely serious offences, had served substantial terms of imprisonment, and were subsequently found to be innocent. Therefore it is right that we should give to people coming back from overseas information about their liability to prosecution here, and this is what we attempt to secure by means of the amendment.

The Minister did not really object to that as a proposition. What he said (as reported at col. 49 of the Official Report of 5th March) was that it might prove to be difficult to ensure that where the information was technically available to the Secretary of State, because it had come to the notice of an official, there was, as it were, no comeback on him later for failing to provide it in circumstances where the Bill would have required him to do so if my noble friend's amendment had been passed.

So we are returning to this point because the noble Lord did not elaborate on it and he was not given a chance to pursue it further because the amendment was withdrawn. I am not sure what advice the noble Lord has since been able to take, but it would be interesting to know how this amendment would operate, assuming the circumstances that he mentioned—that an official had knowledge of charges that were to be brought against an individual when he was returned to the United Kingdom, but the matter had not come to the notice of the Secretary of State and therefore he did not give that information to the prisoner as he would have been required to do.

It seems to me that if the amendment were passed, it would be incumbent on the Secretary of State to make whatever inquiries were necessary to ensure that if the information was in the hands of the police, for instance, or consular officials, it was indeed conveyed to the prisoner. I feel that this is not asking a great deal in addition to the other obligations that the Minister has been good enough to assume in response to other amendments. So I hope that in the light of the explanation that I have now given to your Lordships this amendment will prove to be equally acceptable to the Minister. I beg to move.

Lord Elton

My Lords, how I sympathise with the noble Lord, Lord Avebury, when he says that he is not quite sure why the amendment has been put down in his name. That is a position in which I occasionally find myself—though not able to reveal a very similar feeling—but I am happy to say that on this Bill I am four-square with Government policy. The amendment picks up the point addressed by the noble Lords opposite at the Committee stage in their Amendment No. 26, and that amendment itself picked up one of the points enshrined in their earlier amendment at that stage, No. 25. The amendment that we now have before us is rather different, but that is its ancestry, and I refer to the earlier, Committee stage amendment because it was in our discussion of that amendment that the comparison between what is proposed to be done under the Bill and what is in practice done under laws of extradition was first mentioned. It was the noble and learned Lord. Lord Elwyn-Jones, who in a passage in which he coined the word, "extraditee"—I am sorry to bring that up when he is not here, and I add that he instantly repented of it—said that he was a little unhappy about the discrepancy proposed.

The concern at the bottom of this amendment, as with its predecessors, I believe, is therefore that a British prisoner shall not be surprised upon his voluntary return to this country in custody to find that he is charged with further crimes. If a person is extradited to this country from another, the law protects him from being charged with any crimes other than those which form the basis of this extradition. That is not what is proposed in the amendment, and I think we can all agree that it should not be.

The fact is of course that a person who is extradited to this country is alleged to have committed crimes but has not been convicted of them, while a person transferred under the Bill will have been convicted of a crime and have been sentenced for it, whatever may be our view of that offence. That is a fundamental difference which alone makes the analogy between transfer and extradition, if there is one, a false one.

But there is a much more fundamental difference, and for our purpose one that is more relevant, too. It is that the person being extradited is travelling under duress, while the person being transferred will certainly be doing so voluntarily, and in many, and probably almost all. cases will be doing so at his own request. The duty to protect from prosecution on other counts the person extradited arises therefore in circumstances entirely different from those we are now looking at, and I believe that that difference ought to bear on what is now proposed in the amendment—a duty to inform the person being transferred, in so far as is reasonably possible, of any further charges awaiting him.

Repatriation of prisoners is not going to be an exercise in which the Government sweep British prisoners out of foreign goals and into Britih courts. It will be an exercise in which British prisoners may seek the comforts of British goals, which may seem meagre to us, but which could look very agreeable indeed when seen from a foreign cell. Others may seek the transfer on their behalf, just as others may seek the transfer of foreign prisoners outwards from our prisons to their native gaols, but in either case the prisoner is the intended beneficiary and cannot be removed without his consent. I have already said in Committee that that consent will be based on information provided in large part by the Government, and your Lordships have just accepted a Government amendment which provides that that shall be so.

I have also said that where the Government are aware of further charges outstanding the prisoner will normally and routinely be informed of them. The prisoner, we must presume, will at least be aware of what crimes he has committed and those for which he has not been brought to book. The amendment now asks not just that he should be informed if the Government know whether the authorities are aware of any of the crimes and are likely to pursue him for them—and that, I should have thought, was a fairly generous action on the part of a central law enforce-ment authority, anyway—but would have us go further than that. It would require central Government to see that all reasonable steps had been taken to ascertain whether any charges are intended to be brought against him, or whether any warrants for his arrest in the United Kingdom remain unexecuted.

Before I rose to my feet I did not know much as to what the noble Lord had in mind as regards the meaning of "reasonable" in this context, but it coincides exactly with what I had put down as probably being reasonable. That is that it would mean inquiring of every police force in the United Kingdom as to whether it had anything of this kind, either in existence or in contemplation, against the individual. That in turn would mean that 52 separate police forces up and down the realm would all have to search their records under the name of the prisoner and any other names by which he might be known, as well. That would be a very large bureaucratic exercise, and it would probably not be the only one necessary to meet the amendment; and all for what?—to ascertain whether a convicted offender can return to this country to serve the remainder of his sentence secure in the knowledge that he would be safe from prosecution for any other crimes which he might have committed before he left it.

My own view is that that would be bending over backwards to be fair so far that we should fall over. It is up to the prisoner to decide whether he wants to come home, and he has every opportunity to say that he does not. The amendment offers quite expensive preferential treatment from which the only significant beneficiaries would be people who had committed other crimes in this country for which they had not been caught or punished. I can think of better ways for our officials and policemen to spend their time and our money.

Lord Melchett

My Lords, if I may say so to the noble Lord, what he says is based on two quite false and extraordinary hypotheses. First, he seems to be suggesting that there is absolutely no exchange of information between different police forces in this country, no such thing as computers and no such thing as centralised records for people suspected of offences or liable to be charged with them, let alone people for whom warrants have been issued. That is odd coming from a Minister in his position. Surely, he accepts that there is some exchange of information between police forces and that there are records held centrally of people who are wanted for criminal offences.

The second false premise on which the Minister has spoken is, if I may say so, rather more fundamental. He seems to base his entire remarks on the assumption that anyone charged with an offence in this country is guilty of it and has committed it and that therefore anyone abroad, who is liable to be charged in this country, is bound to know about it because they have actually committed an offence. That does away with everything to do with trial, defence, judgment and so on. It is an absurd proposition. I hope that the noble Lord will accept that there are some people charged in our courts who have not committed any offence and who are rightly found innocent by the courts as a result.

It is therefore possible, I put it to the noble Lord, for people to be in the following circumstances. They are in gaol in a foreign country. They have committed no offence either in that country against its laws or done anything that would be an offence in this country. They have been locked up at the whim of a dictator in that country for political reasons to get at the British Government because the dictator does not like the policies of Her Majesty's Government. That is not an unknown circumstance under this Government or any other. The person is therefore innocent and held wrongly in gaol. The Government, quite rightly, through this legislation, make every effort to transfer the person back to this country. The person has not only fallen into unhappy circumstances abroad but has also had information laid against him by an informer in this country who has been trying to bargain away a severe sentence that, again, is totally erroneous about an offence that he has not committed or had any involvement in. But when he returns, he will face serious charges as a result.

In those circumstances, if I may say so to the noble Lord, this whole thing takes on a rather different character. It would be fair to the innocent person held abroad in gaol to be told that very serious charges, of which he is totally innocent, as it will eventually turn out, no doubt, will be laid against him. I hope, therefore, that the noble Lord will rethink his approach. We are not talking simply about people being informed about things that they should know already. If that was the case, there would be no purpose in having a criminal justice system in this country.

Lord Donaldson of Kingsbridge

My Lords, it was curious that the noble Lord in his initial remarks talked entirely about extradition, referred to what happened in Committee and quoted the noble and learned Lord, Lord Elton, who was not there—

Lord Elton

My Lords, I was.

Lord Donaldson of Kingsbridge

I meant the noble and learned Lord. Lord Elwyn-Jones. Did I say Lord Elton?—I am so sorry; it is old age. The noble and learned Lord, Lord Elwyn-Jones, was not present in Committee and there was no discussion about extradition at all. It seems to me that the case has been made that the Secretary of State should be under an obligation to do what is reasonable to find out whether anything else is involved. I do not think that courts would say that he has to consult every police station in the country. What is reasonable is to make an inquiry. Whatever is the proper way to do that, I do not know. It might be a question of consulting one or two sources about a man. I think that this is reasonable to ask in the few cases that we are expecting. Let us not forget that. All that this amendment really does is to say that if the Secretary of State does, with reasonable industry, find anything, he must disclose it. I would have thought that this is, on the whole, a reasonable request. I hope that the noble Lord will at any rate think about it. One of the reasons why the noble Lord, Lord Avebury, raised this matter was not pure chance, I feel sure. I had thought that he would press it much harder than I did last time, which he has.

Lord Lloyd of Kilgerran

My Lords, may I briefly support the opening line of the argument of the noble Lord. Lord Melchett, in relation to the reply of the noble Lord, Lord Elton, that one of the great difficulties in dealing with the aspects of the amendment of my noble friend Lord Avebury was that there were 72 police districts, or whatever they are, and there was difficulty from a bureaucratic point of view. It comes as a great surprise to me that the noble Lord. Lord Elton, is living in the Victorian era. As the noble Lord, Lord Melchett, has indicated, there are such things as computers. Perhaps the noble Lord, the Minister, has not yet realised that within the Palace of Westminster—I declare an interest in that I am a founder member—there is a Parliamentary Information Technology Committee, affectionately known as PITCOM. We would be glad if the noble Lord the Minister could spare some time in order to keep himself up to date with methods of communication. One of the main points of his argument, as I understood it, was that we cannot deal with this matter because we would have to communicate with 72 authorities. I am surprised that the noble Lord should have mentioned that at this early hour of the afternoon.

Lord Elton

My Lords, your Lordships were, I think, trying to sting me to my feet, and you have certainly succeeded. I always think that for people in our position it might be more comfortable to live in the Victorian age. I have, however, no illusions that I do. Nor, I believe, does the noble Lord, Lord Lloyd of Kilgerran. There is exchange of information between police forces and these forces do, of course, have computers. There is no central Big Brother—if there was, I am sure that the first person to try to hack it to pieces would be the noble Lord, Lord Avebury—which keeps a list of all the people the police suspect. What the noble Lord is asking us to do, if I may remind him, is to inform the prisoner not only whether any warrants are outstanding against him but whether it is intended to bring any charges against him. The only way that the courts could ever see that this was done would be to see that the Secretary of State had inquired of every police force that could do this. Even if it was on their computer, which is unlikely unless they decided to press a charge, it would not be on the central criminal record.

The noble Lord, Lord Melchett, suggests that I live out of touch with what is going on in this sphere. I have to tell him. however, that if the Home Secretary could not show that this had been done, it is my understanding that he would not be able to satisfy the courts. The noble Lord may be suggesting that we should have some central computer which lists not only every known criminal but also every known suspect, and have different files for those whom it is proposed to charge, those whom it may be proposed to charge and those whom it has been decided not to charge. I think that this would bring Big Brother a long step closer to Scotland Yard. I am surprised that any urgency in that direction should come from the Liberal Benches and the SDP. However, I must not try to needle noble Lords opposite to their feet. I think that what we propose is eminently reasonable and that what the noble Lord proposes goes far beyond that. I hope that your Lordships will not accept the amendment.

Lord Avebury

My Lords, I do not know whether the noble Lord is living in the Victorian era or whether he remembers the remark of one of his right honourable friend's predecessors, Sir William Harcourt, who said, after being told of the way that prisoners were putting on weight: My prisoners will grow so fat, it seems a positive cruelty to release them". Here, we are talking about not releasing prisoners but whether they should be brought back to the United Kingdom in full knowledge of any charges that may be pending against them. I must say that the way that this debate has gone has surprised me. I thought, like the noble Lord. Lord Melchett, and like my noble friend Lord Lloyd of Kilgerran, that the police had computers that were able to communicate with one another. Contrary to what the noble Lord, the Minister, supposes, I am not against that. I believe in the preservation of law and order, the noble Lord the Minister may be surprised to know. I am in favour of the police having modern technology available to them which enables them to prevent and detect crime. I would have assumed naturally that if someone is arrested in South Yorkshire and taken to a police station there, it does not require an enormous effort by the officers concerned to ascertain whether he is wanted on charges in London. Wales or Scotland. I am sure that those facilities must be available to the police and that it is not a question of laboriously sending carrier pigeons to 52 other police forces in England and Wales plus a few more in Scotland, as the noble Lord has described.

But what we are talking about in the amendment is "all reasonable steps". If the information was not available from the police national computer, which I think the noble Lord mentioned himself at the end of his remarks, then it would be reasonable that the Minister would not be able to provide this information to the person who was coming back from abroad. We are not asking him to do something which is enormously complicated. We are simply asking him to notify the prisoner in these rare cases where charges may be brought against a person who is perhaps totally innocent, as the noble Lord, Lord Melchett, said, so that he can make his decision on whether to come back to the United Kingdom in the light of that information. I do not intend to pursue this point this afternoon. I simply make these few brief remarks in the hope that some honourable gentleman in another place will take up the cudgels where we have left off. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

.[Amendment No. 11 not moved.]

5.21 p.m.

Lord Mishcon moved Amendment No. 12:

Page 2, line 13, at end insert—

("( ) In the case of the Secretary of State refusing to agree under section 1(1)(b) above to the proposed transfer of a prisoner into the United Kingdom, such refusal shall be in writing and accompanied by a statement of reasons and shall be notified to the prisoner in his own language.").

The noble Lord said: My Lords, I intentionally stayed out of the last debate not only because my noble friend Lord Melchett with his usual skill said everything that I would have said, but because I thought that if I kept away from the barbs which seemed to be flying from the Liberal and SDP Benches to the Minister and from the Minister back to those Benches, it may very well be that when I moved my next amendment the Minister would be somewhat more considerate to me. I move that amendment now and I do so with, as I have said, some optimism.

At the Committee stage it was the noble Lord, Lord Donaldson, who I believe moved the amendment. It seems as though there is a great partnership being worked out whereby people who did not move amendments last time are now moving them and are being supported by those who did so on the last occasion. But if it is all for a good cause, I am sure that your Lordships will appreciate it.

The central point here is made very definitely from the experience of the National Council for the Welfare of Prisoners Abroad who, as I am sure my noble friends agree—and I said this on the last occasion—have been very industrious, very energetic and very idealistic in furthering their objects and in briefing Members of your Lordships' House so that they can contribute intelligently to this debate. They assure me that they have very definite experience of cases where decisions have been made in regard to prisoners abroad by authorities over here, and the authorities over here have perfectly innocently acted on completely wrong information about the previous convictions of the people about whom they were talking. When this society has gone into the matter and has been able on behalf of these prisoners to show the authorities what the truth is. the authorities have admitted their error. Although it is absolutely tragic that the Secretary of State might once in 10 years be in the dilemma of not wanting to state the reasons for a refusal because it might in some way be an embarrassment or create difficulties, it would be much more of a hardship for there to be one case in 10 years where somebody is refused permission, the reasons are not given to him, and if only those reasons had been given to him he would have been able to get rid of those reasons by showing that their basis was not correct.

So the whole purpose of the amendment—and I can say it in one sentence—is to see that reasons for the refusal are given in order that the prisoner may have an opportunity of commenting on them and possibly putting right an error of fact. My Lords, I beg to move.

Lord Elton

My Lords, as I said at the Committee stage when an amendment along these lines was proposed. I see no problem in accepting that the Secretary of State's decision should be communicated in writing since written communication with the other state concerned would obviously be necessary. But I doubt the need for this to be a statutory requirement. Nor do I think we need to object to the suggestion that a refusal should be given in the prisoner's own language. We do not consider it acceptable, however, that the Secretary of State should be required to state his reasons for refusing. As I promised at the Committee stage, we have considered whether it might be possible to adopt a different approach to inward and to outward transfer. We have, however, I regret to tell your Lordships, concluded that such a distinction is not feasible. Given that disclosure of the Secretary of State's reasons for refusal in a case of either inward or outward transfer might involve revealing information or sources of intelligence related to criminal activities or matters of national security, the Government cannot agree that reasons for refusal should be given.

The present amendment concerns only inward transfers. I made it clear at both Second Reading and the Committee stage that the Secretary of State will not normally withhold his consent unless there are compelling reasons of public policy for so doing. Instances of refusal will, therefore, be extremely rare and it is true to say that they will be even rarer in the case of British citizens seeking inward transfer than in cases of foreign criminals seeking outward transfer, especially as British citizens would in any case have the right to return to the United Kingdom on their release from prison abroad. Even so, despite the likely rarity of cases of refusal, an obligation to disclose reasons might work contrary to the national interest in some cases and this is a risk that we are not prepared to take. I say that with regret in view of the great lengths to which the noble Lord went in order to put me in a good mood to receive his amendment.

Lord Donaldson of Kingsbridge

My Lords, I am just a tiny bit puzzled. It is a long time since the Committee stage and I have not re-studied the Bill. But does it anywhere say that the prisoner abroad is to be informed at all of a refusal? I cannot find it. It seems to me that if we have somebody in the type of regime about which we have been talking which is hostile to this country, they might simply not tell him. Unless something is sent to him in writing he will not know that he has been refused. If he is refused and there is an obligation to tell him—which I think must be in the Bill but I cannot find it—then it is reasonable that some reasons should be given.

Lord Elton

My Lords, as a preliminary let me say that clearly a prisoner abroad does need to be informed of the result of his approach whether that approach is made to the government abroad or to the Government of this country. The noble Lord asks me where in the text of the Bill I can find this obviously necessary provision. I do not know what the inverse of a filibuster is. but we are in need of making haste and there is other business to come. I can now refer the noble Lord to the contents of the international agreement under which the Bill is drawn. I understand that that is sufficient to secure that this exchange of information shall take place. If I have reason to put a gloss on that reply, I shall write to the noble Lord and to the other two Front Benches.

Lord Donaldson of Kingsbridge

My Lords, I am grateful for that very neat reply.

Lord Mishcon

My Lords, if I were as able to say something to your Lordships as the noble Lord is able with such skill to say nothing to your Lordships, I would be much more persuasive than I am. I wonder whether I can persuade the noble Lord the Minister to go some way with me on this matter. I think he will find that it is quite right that there is nothing in this Bill which makes it mandatory for the decision to be in writing. Indeed, at col. 35 on 5th March this year, when he was dealing with this amendment, he said: It is indeed our intention that the Secretary of State's decisions on requests for transfer should be conveyed in writing". To me that meant—and I did not search further in the Bill—that he was merely stating a general intention which was a procedural one: he does not mind the communication in writing. Of course, that communication in writing is between country and country. We are talking about the communication in writing reaching the prisoner. As has been pointed out, there are some states which would not in fact ensure that the communication reached the prisoner.

Lord Avebury

My Lords, perhaps I may help the noble Lord. As the noble Lord, Lord Elton, referred us to the convention, I have been looking it up, and Article 4(5) says that: The sentenced person shall be informed in writing of any action taken by the sentencing state or the administering state under the preceding paragraphs as well as of any decision taken by either state on a request for transfer". The question is why that phraseology cannot be incorporated in the Bill.

Lord Mishcon

My Lords, I am most grateful to my noble friend Lord Avebury. But I was concerned with the point that there could be cases—and I believe that this was a matter raised by someone else in the discussion—where, in spite of the fact that that is contained in a convention, the foreign state does not do it, and one is simply left with communications between two foreign offices about the failure to comply with the convention. By this amendment we want to ensure that there is an obligation upon our Government to ensure that the prisoner abroad, who is a British prisoner or one intimately connected with this country, receives the refusal.

Lord Elton

My Lords, it might perhaps expedite the proceedings if I say that our objection is to giving the reasons in writing, not the information in writing. I am quite happy to undertake to consider between now and a later stage whether we could include the giving of the decision in writing. If we cannot come to a conclusion in this House, I am sure that we could do it in another place.

Lord Mishcon

My Lords, I am most grateful to the noble Lord. I was trying to do it by stages. I was saying that there should be no difficulty in that part of the amendment which refers to the statement in writing—the communication of that statement. Then we reach the point where the Minister cannot help us at the moment, which is the question of stating reasons.

The Minister said that what worried him about that is the fact that aspects of public policy could be involved. Before we reach the next and penultimate stage of this Bill, I wonder whether the Minister would consider an amendment which brings in the elements with which he is satisfied as well as a statement in the Bill that reasons would be given unless public policy dictates otherwise? I am trying to move towards the Minister in order to meet his exception. I am trying extremely hard to protect the prisoner against the errors, about which I was speaking, which would be so unjust. If the reason was merely that he had a whole string of convictions, so the Secretary of State thought, but in fact they belonged to another completely different person, and the prisoner was able to show the Secretary of State that that was the position, obviously that would not be a matter of public policy and, to that extent, I would be covering the position. If the noble Lord the Minister would kindly agree to consider the matter between now and the next stage of the Bill, I shall most willingly withdraw the amendment.

Lord Elton

My Lords, with your Lordships' leave, I have already conceded the first half of what the noble Lord asks. We shall look at the written decision. As to reasons under certain circumstances, I shall of course not refuse to look at that; and I shall look at it. I suspect that there may well be difficulties in that if we are talking about cases, which no doubt will be rare, dealing with national security, the very refusal to give reasons is a declaration that the authorities are on to something which they would not wish to declare. However, that is a hypothetical argument. I need to take advice on it. Therefore, the noble Lord may wish to withdraw his amendment until I have done so. However, I do not want to make him too optimistic.

Lord Mishcon

My Lords, with what shred of optimism I am left with after those remarks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.35 p.m.

Lord Donaldson of Kingsbridge

moved Amendment No. 13:

Page 2, line 21, at end insert—

(" ( ) For the purpose of paragraph (a) of subsection (2C) above, where notice of withdrawal of consent is received by the Secretary of State after the issue of the warrant but the withdrawal itself took place prior to the issue of the warrant, the warrant shall be treated as invalid.")

The noble Lord said: My Lords, this is a probing amendment of a perfectly simple kind. Under subsection 1(3) it is quite clearly stated that once consent has been given and the warrant issued, consent cannot then be withdrawn. Nobody questions that. Our legal advisers tell us that the Bill is silent on a situation which could easily arise, whereby the prisoner would withdraw his consent before the warrant had been issued but his withdrawal of consent would reach the Secretary of State after the warrant had been issued. With international communications, that is perfectly possible.

This amendment is tabled to make sure that in those circumstances the Secretary of State would accept the withdrawal. It is a very simple point and I think that it is correct. I do not think that it is elsewhere in the Bill and I am inclined to think that it ought to be included. I beg to move.

Lord Elton

My Lords, the noble Lord will recall that he brought this concern to the Committee, and I fear that my answer will be very much as it was then. Perhaps I can make it a little clearer. Subsection (3) of Clause 1 does not refer to the timing of notification of the withdrawal of consent to the Secretary of State. It refers to the timing of the withdrawl of consent itself. Under the Bill as now drafted, the validity of the warrant will therefore, among other things, depend upon the chronology of events.

If the prisoner withdrew his consent before the issue of the Secretary of State's warrant, as a matter of law the warrant would already be invalid, because one of the requirements for the issue of the warrant would not have been met. Even if notification of withdrawal of consent reached the Secretary of State several days after the issue of the warrant, this would not affect the position in law and the warrant would still be invalid. I think that that is what the noble Lord wishes to achieve, and it is in fact what is in the Bill.

Lord Melchett

My Lords, before the noble Lord sits down, can he say where the phrase "withdrawal of consent" is defined in the Bill? So far as I can see, that terminology is not defined anywhere in the legislation, and it is that which gives rise to the doubt which prompted this amendment both at the Committee stage and again now. Without its being clear at what stage the withdrawal of consent will have been deemed to take place, given that it is not defined, it seems to me that the need for this amendment remains.

Lord Elton

My Lords, I answer with a little hesitation that it is not necessary to have that phrase on the face of the Bill. It is a matter of fact in each case that the existence of the warrant is lawful only if the consent of the prisoner pre-exists it. If the prisoner withdraws that, it no longer has the prisoner's consent and therefore the legality of the warrant fails. It may be possible to put that in more legalistic and watertight language, and I shall put it on paper for the noble Lord and, if it is his wish, for the noble Lord, Lord Donaldson.

Lord Donaldson of Kingsbridge

My Lords, I am grateful and I certainly shall not press the amendment. Our legal advisers do not agree with this, and I should like the noble Lord to look at this matter very carefully because our legal advisers are very careful people. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon had given notice of his intention to move Amendment No. 14:

Page 2, line 40, at end insert—

("(5A) In the case of a transfer into the United Kingdom pursuant to this section or section 4 below no criminal charges in respect of offences allegedly committed by the prisoner prior to his transfer into the United Kingdom shall be brought in the United Kingdom unless either:

1. (a) notice of liability to be so charged has been given to the prisoner pursuant to subsection (2B) above prior to his giving his consent to the transfer; or
2. (b) the alleged involvement of the prisoner in any offence with which he is to be charged after his transfer was not known to the Secretary of State prior to the said transfer.

• ( ) Nothing in subsection (5A) above shall affect the right of the private citizen to bring proceedings of any sort against a prisoner.").

The noble Lord said: My Lords, I have an idea that, having debated Amendment No. 10, this amendment ought not to be moved. Therefore, I do not move it.

[Amendment No. 14 not moved.]

Clause 3 [Transfer into the United Kingdom]:

Lord Elton moved Amendment No. 15:

Page 5, line 7, leave out ("and") and insert ("to").

The noble Lord said: My Lords, in moving this amendment, with your Lordships' leave, I shall also speak to Amendments Nos. 16, 17 and 18.

Amendment No. 16: Page 5, line 9, leave out from ("it") to end of line 18 and insert ("satisfies the following two conditions that is to say—

1. (a) it is a provision with respect to the detention of a person in a prison, a hospital or any other institution; and
2. (b) it is a provision which at the time the warrant is issued may be contained in an order made either—
1. (i) in the course of the exercise of its criminal jurisdiction by a court in the part of the United Kingdom in which the prisoner is to be detained; or
2. (ii) otherwise than by a court but for the purpose of giving effect to an order made as mentioned in sub-paragraph (i) above.

• ( ) In determining for the purposes of paragraph (c) of subsection (1) above what provisions are appropriate for giving effect to the international arrangements mentioned in that paragraph, the Secretary of State shall, to the extent that it appears to him consistent with those arrangements to do so, have regard to the inappropriateness of the warrants containing provisions which—

1. (a) are equivalent to more than the maximum penalties (if any) that may be imposed on a person who, in the part of the United Kingdom in which the prisoner is to be detained, commits an offence corresponding to that in respect of which the prisoner is required to be detained in the country or territory from which he is to be transferred; or
639
2. (b) are framed without reference to the length—
1. (i) of the period during which the prisoner is, but for the transfer, required to be detained in that country or territory; and
2. (ii) of so much of that period as will have been, or be treated as having been, served by the prisoner when the said provisions take effect.").

Amendment No. 17: Page 5, line 23, leave out from ("in") to end of line 24 and insert ("sub-paragraph (i) or, as the case may be, sub-paragraph (ii) of subsection (2)(b) above."). Amendment No. 18: Page 5, line 37, after ("(2)") insert ("(6)").

Your Lordships will recall that at the Committee stage I readily sympathised with the remarks of the noble Lord, Lord Mishcon, about the obscurity of the language in subsection (2) of Clause 3. I undertook to consider whether this could be made clearer, though past experience forbade my being optimistic about this. I also undertook to consider whether arrangements for remission could be explicitly dealt with in the Bill. As to clarity, it has not I fear proved possible to go quite as far as your Lordships and I would perhaps have preferred. As your Lordships appreciate and have accepted, the Government must have a considerable degree of discretion in order to be able to negotiate acceptable transfer agreements with other countries. Some of them may have varying attitudes on this and on other questions relating to the repatriation of prisoners. Although, therefore. I think the amendment to subsection (2) of Clause 3 helps to make the existing provision somewhat easier to follow, I realise that the new subsection (2A) goes only part of the way towards satisfying the desire for more explicit provision which was expressed at the Committee stage.

Paragraph (a) of the new subsection does, however, require the Secretary of State to have regard to the maximum penalty (if any) that may be imposed in the United Kingdom for a similar offence, and paragraph (b) similarly registers the need for the time spent in custody before transfer to be taken into account, including any time treated as having been served—that is, in our terms, remission earned and pre-trial custody.

Although it has not been possible to be as explicit as some of your Lordships would have liked, I should point out that the Secretary of State's discretion under the Bill to impose custodial sentences by warrant is not completely unfettered. The power in Clause 3(2) can in all cases be exercised only to the extent that the relevant international agreements allow. That is clear from the terms of subsection (l)(c) of Clause 3.

It may afford some comfort to those of your Lordships who continue to feel uneasy about the scope of the Secretary of State's discretion and about the arrangements for remission if I explain to the House what is generally intended to happen in practice. The intention is that when a prisoner is being considered for transfer to the United Kingdom we shall establish with the other country what the total sentence was that was imposed by the overseas court, how much of that sentence has been served and, if appropriate, how much remission has been earned. On the basis of this information we shall agree with the other country precisely how much of the original sentence remains to be served and this will form the sentence to be served on transfer to the United Kingdom under the authority of the Secretary of State's warrant, unless the relevant agreement provides otherwise.

Under the Council of Europe Convention the sentence to be served in the United Kingdom will be limited to the maximum available for a similar offence committed in the part of the United Kingdom to which the prisoner is transferred. Where we wish to have agreements with other countries which do not wish to participate in the convention we shall seek to negotiate terms which are as close as possible to those of the convention; and, in particular, we shall try to secure agreement to sentences to be served on transfer to the United Kingdom being limited to our maximum. We must be realistic, however, and anticipate that this will not be acceptable to all countries and that some are likely to insist on their sentences being enforced in full. The experience of other countries in this field suggests that we shall generally be able to insist that, after transfer to the United Kingdom, our own arrangements for remission and parole will apply. Remission will apply to the sentence to be served in the United Kingdom as specified in the Secretary of State's warrant; any remission earned before transfer will already have been taken into account in fixing the sentence in the warrant. For the purposes, however, of calculating one third of sentence for eligibility for parole it should generally be possible to take account of the total time spent in custody, including the time served before transfer. Paragraph 2 of the schedule to the Bill enables this to be provided for in the Secretary of State's warrant. My Lords, I think that that may be as much as your Lordships wish to know of this.

Lord Mishcon

My Lords, the noble Lord the Minister has conveyed a favour not only upon this House but upon the English language in having changed the old Clause 3(2), which was absolutely meaningless, to the clause he now brings before us. For that we are indebted to him. The chief mischief which we were trying to get at in clarifying that clause was the very one of which the noble Lord the Minister has spoken; namely, that it would be untenable that we should be imposing upon someone who was brought back to this country a sentence of imprisonment which exceeded the maximum according to our own law for precisely the offence of which he has been convicted.

I do not think I can carry this any further in view of what the noble Lord the Minister has said as to the difficulties that exist in the matter. I can only hope—and it will be on the record of this House—that every effort will be made by the Government when negotiating these agreements that there should be a mutuality. There are many cases, of course, where foreign governments might have less of a maximum sentence than we have. If there could be that mutuality so that in no case was a transferred prisoner put to more of a maximum sentence than his native country had, then I think we would all be satisfied. With the noble Lord's assurance on this matter, I think I must leave it there.

Lord Elton

My Lords, I am happy to say that we shall always seek to achieve the best terms we can in the terms which the noble Lord has suggested.

On Question, amendment agreed to.

Lord Elton moved Amendments Nos. 16,17 and 18.

[Printed earlier: cols. 638–639.]

On Question, amendments agreed to.

Clause 4 [Temporary return]:

Lord Elton moved Amendment No. 19:

Page 6, leave out lines 21 to 25 and insert—

("( ) A warrant issued under this Act containing, with respect to provisions contained in an earlier warrant, any such requirement as is referred to in subsection (2) above shall provide that any period during which the prisoner is out of the part of the United Kingdom in which the provisions contained in the earlier warrant have effect and is in custody, is to be treated (except to such extent as may be specified in the warrant in order that effect may be given to the international arrangements in question) as a period during which the prisoner is detained under the provisions contained in the earlier warrant.").

The noble Lord said: My Lords, this amendment gives effect to the desire expressed at the Committee stage that the Bill should provide specifically that time spent in custody outside the United Kingdom by a prisoner temporarily returned to the country of conviction for an appeal hearing should count towards the time to be served in the United Kingdom. In considering the implications of such a provision, we have encountered the problem that in some countries it is the practice that time spent in custody pending the outcome of an appeal does not count towards the sentence to be served.

Clearly it might not be acceptable to such countries that the United Kingdom should give the prisoner credit for such time contrary to their own practice. It has therefore been necessary to build an appropriate qualification into the Amendment. This will allow the warrant for temporary transfer to specify to what extent the time in custody outside the United Kingdom will not count towards the sentence to be served in the United Kingdom where the international agreements so require.

It is our intention to credit such time whenever the international arrangements permit, but your Lordships will understand that discretion is necessary in order to avoid our not being able to meet the requirements of other countries and hence denying prisoners the chance of transfer home altogether.

If your Lordships will permit me, I shall speak also to Amendments Nos. 24 and 26 in my name, and with Amendments Nos. 23, 25 and 27 in the names of noble Lords opposite.

Amendment No. 24:

Page 8, line 33, leave out ("(if any)").

Amendment No. 26:

Page 8, line 37, at end insert—

("(2A) The Secretary of State shall not be required to make any arrangement under subsection (2) above if it appears to him unreasonable to do so having regard to the means of the prisoner and to the impracticability of recovering the said amount, whether immediately or at some future time, from the prisoner or from any other source.").

Amendments Nos. 23 and 25 taken together would prevent the Government from taking action to recover a prisoner's travel costs until after his transfer, and would also remove the possibility of expenses being recovered from anyone but the prisoner. Amendment 27 seeks to amend the Government Amendment 26 by omitting the words "from the prisoner or from any other source".

If I may take Nos. 23 and 25 first, their effect would of course undermine the Government's general policy on this issue which I sought to explain when speaking to our amendments. We believe very firmly that in general a prisoner who can afford to pay his return costs should be made to do so, and that he should therefore pay before transfer or sign an undertaking to pay after transfer. To restrict the Government's powers to recover costs after transfer would remove, as I think noble Lords must be well aware, a great deal of its effective leverage over a prisoner actually to commit himself to payment.

I make no apology for taking that line. It is in no way harsh to seek payment, or an undertaking, before transfer from those who can afford it or are likely to have the means at some future time. Of those whose circumstances are such that payment at any stage is obviously impracticable, my Amendment No. 26 fully takes care. As to Amendment 25, I cannot understand why noble Lords should seek to prevent persons acting on behalf of the prisoner from contributing directly to his costs. The clause as amended by my amendments would simply enable arrangements to be made for the recovery of expenses from, for example, a prisoner's parents rather than from himself.

There can be no question of the clause imposing any kind of involuntary obligation on these people if they do not want to pay. Nothing in the clause can compel them to do so. All the amendment would do would be to remove a potential source of contributions, and I do not believe that that is in the best interests of prisoners abroad. I must, therefore, resist these amendments.

On Amendment No. 27—

Lord Melchett

My Lords, I do not wish to interrupt the noble Lord. I am sure he is feeling under a lot of pressure as regards time as this Report stage may be taking longer than the Government originally envisaged. We are dealing with an important Bill, one that was started in this House, and it seems to me that there is some disadvantage in taking all these amendments together. They raise rather different points and if they are not debated separately those of us who are moving them do not have the opportunity to speak twice. For my part I should like to take Amendment No. 27 separately for those reasons, despite the fact that I am sure the noble Lord is being leaned on by others to try to speed us up.

Lord Elton

My Lords, the noble Lord is entirely within his rights. As I have not yet expatiated on Amendment No. 27, I will not.

On Question, amendment agreed to.

Clause 6 [Revocation etc. of warrants]:

Lord Elton moved Amendment No. 20:

[Printed earlier: col. 619.]

The noble Lord said: I beg to move, my Lords.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 21:

[Printed earlier: col. 609.]

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

5.52 p.m.

Clause 7 [Expenses.]

Lord Elton moved Amendment No. 22:

Page 8, line 30, leave out ("subsection") and insert ("sub-sections (2A) and").

The noble Lord said: My Lords, I am now in some confusion and if I repeat myself I hope your Lordships will forgive me. In speaking to this amendment I hope your Lordships will be content if I speak also to Amendments Nos. 24 and 26. Also I am sure that the noble Lord. Lord Melchett, will not wish me to speak to Amendment No. 27, so I shall consider Amendments Nos. 23 and 25 and if I allude to Amendment No. 27 I hope he will forgive me if I come back later.

We have carefully studied the remarks of noble Lords at the Committee stage on the recovery of the travel costs of prisoners transferred to the United Kingdom. We concluded that what is appropriate is an amendment which does two things: it must leave no doubt about the Secretary of State's general duty to seek to recover the prisoner's travel costs and it must make it clear that he is not obliged to make arrangements for recovery of these costs when he is satisfied that the recovery before transfer or at any future date is impracticable. I believe these amendments achieve that dual purpose.

We consider it necessary to take a firm line on the recovery of prisoners' travel costs because it would be ridiculous if they could get a free trip home while stranded, but law-abiding British tourists had to pay their fares back in full. It is appropriate, therefore, that the Secretary of State should have a duty to recover these costs and should in all but the most exceptional circumstances take steps to ensure that they are paid before transfer or that a signed undertaking promising payment after transfer is obtained. We do not accept that merely because a prisoner does not have the means to pay before transfer, and does not have assets in the United Kingdom from which he could repay on return to the country, the requirement to sign an undertaking to repay his travel costs should be waived. It should not be assumed that a prisoner of working age who is repatriated to the United Kingdom to complete his sentence will not, after his release, obtain employment and earn his living. A great deal of commercial life at present depends on people undertaking to pay in the future things which they enjoy at the present.

We can foresee the occasional exceptional case where an elderly prisoner, or one suffering from a severe terminal illness and who is without assets, is to be repatriated and who clearly has no prospects of ever earning his living again. In a case of that sort it would be reasonable for the Secretary of State to exercise his discretion not to make any arrangements for recovery of the travel costs. I stress, however, that we intend such a waiver to be exceptional.

Perhaps I may now try to allay some of the anxieties which were expressed at Committee stage about the question of recovering the costs. First, the reference in Clause 7(2) to recovery from persons acting on a prisoner's behalf does not carry the implication that a prisoner's family or friends should somehow be compelled to pay his travel costs. This would not be feasible. The point is simply that where the prisoner can arrange for some else to pay, or where someone else offers to pay, or is willing to sign an undertaking to pay, that will be acceptable and the Secretary of State may arrange accordingly. Secondly, there will be no question of prisoners being left to languish in foreign gaols because they cannot pay or arrange for someone else to pay their travel costs before their transfer. As I have made clear, a signed undertaking from the prisoner or someone else to repay after the prisoner's return to the United Kingdom will be acceptable. Furthermore it is not the intention that interest should be charged while the debt is outstanding. This would clearly be inappropriate, given that prisoners would be returning to the United Kingdom to serve a gaol sentence during which they would have no significant earnings.

I hope that that is both clear and presented in a form which is acceptable to your Lordships.

Lord Melchett

My Lords, the noble Lord has gone a long way towards meeting some of the criticisms we made at Committee stage, but I still have a residual worry which I will come to when I move Amendment No. 27. But I urge the noble Lord, however pressed we are for time, to bear in mind that we are not always dealing with people who have been fairly imprisoned. If I have the noble Lord's attention, he said, yet again, that all the cases we shall be dealing with under this Bill will in some way be less deserving than a stranded tourist. But that will not be the case where people have been incarcerated for no reason in quite unjust circumstances. In those circumstances there may be much stronger arguments for paying for their travel costs back to this country than there would be for a stranded tourist.

I make this point because I hope the noble Lord and his advisers will bear this point in mind when they deal with this Bill and the amendments to it in another place. They have consistently overlooked the fact that we are dealing in this Bill with people being transferred to this country and not necessarily people who, in our terms, are prisoners. We are dealing with people suffering from mental health problems and with people who may have been incarcerated quite unjustly and unfairly. It seems to me that if we had started off by changing the title of the Bill as some of us proposed the noble Lord might have stopped slipping into this fundamental error quite so often.

Lord Avebury

My Lords, it would be appropriate if I said one or two things about Amendments Nos. 23 and 25 at this stage. I must first thank the noble Lord for his efforts to meet us half way on these points, even if I am left a little confused about how to reconcile some of the things that the noble Lord has said and the amendment we now have on the Marshalled List.

For instance, at Committee stage the Minister told us that he could not explain precisely how the Government would take steps to assure themselves of the fact that the prisoner was broke. But today the Minister has said that even if he is broke he will still be asked to sign an undertaking because he can come back to the United Kingdom and after his release at the end of his sentence he will be expected to earn money and to repay the cost of his fare out of that income. As I understand it, it is not so much a question of ascertaining the means of the prisoner or of his relatives at the point where the transfer is contemplated, because if he is not being asked to pay cash but merely to sign an IOU then the operation of this clause depends on his future earning ability.

The noble Lord mentioned in passing that the only cases where it would be inappropriate or unreasonable to try to recover the expenses would be where a person was retired or incapacitated in some way and therefore would not be likely to return to the job market after his final release from custody in the United Kingdom. We need clarification on that point. Having ascertained that a prisoner is broke—by means that the noble Lord found difficult to define in discussing the matter (in col. 65 of Hansard) at Committee stage—the practice will be invariably to seek a written undertaking from the prisoner that he will repay the money. If that is to be the way the clause is treated, then there is all the more reason for Amendment No. 25 to strike out the words,

It would be the general rule that this money would be recovered from the prisoner himself and not from the assets at his disposal at the point of transfer from his future earnings, as the noble Lord has explained.

If I may come back to the first amendment, I am still a little anxious because the noble Lord the Minister used the word "leverage" in the remarks that he made. That was the point to which, the Minister will recall, we addressed ourselves when we initially raised the point on Committee. A person is in a very weak position if the consul approaches him while he is in a particularly unpleasant prison in Turkey or in Thailand, asks him if he will sign a piece of paper and represents to him that his chances of being transferred to a more humane environment depend on his agreement to this proposal. Therefore, more or less anybody would sign that document even if he is conscious of the fact that his ability to pay may be extremely limited, facing, as he does, a further period of some years in custody in the United Kingdom.

If I may come on to the second amendment, again, the noble Lord spoke on the last occasion of the rich uncles and aunts who might be expected to contribute to the fare. This afternoon he has referred only to parents. It is important for us to understand how far this obligation is going to be pressed. I have nephews and nieces in Australia who are extremely law-abiding but it is possible to imagine circumstances in which they might be convicted of an offence in, say, Turkey or Thailand and I should be very surprised, if not dismayed, if the Australian Government then sent me a bill for the fare to repatriate them to Melbourne or Canberra. I am sure that the noble Lord also may have nephews and nieces whom he can imagine being convicted unjustly in some foreign land and that he would then receive a demand for the cost of the fare—which it would be quite unreasonable to expect him to pay.

I think that we should know to whom the Government will look when in this clause they speak of persons acting on his behalf. Is it merely to his parents, as the noble Lord said this afternoon? If it is to other relatives, to what distance are they intending to look? Is there any other interpretation, apart from relatives, that we can apply to this particular phrase? I think it is unlikely that we shall get far this afternoon. The Minister, as I have said, went some way towards meeting my intentions and those of my noble friend when he moved the matter on Committee. Perhaps he can throw some further light on these questions before we leave the two amendments to which I have addressed myself this afternoon.

Lord Donaldson of Kingsbridge

My Lords, this is not the time to go into detail. What I am concerned with is that not having enough money should not be a reason for not being repatriated. I think the noble Lord agrees with that. As far as I am concerned, so long as the Government have no right to put pressure on my relations and all that I have to do is to sign an IOU, I do not think that is unreasonable. I think that it would be most unreasonable if they had recourse to any of my relations. If you sign an IOU, you come home and serve another three years in the "nick", and afterwards (if you do not want to pay) you go bankrupt. It is simple. Anybody would rather do that than stay in prison in Thailand.

Lord Elton

My Lords, I am obliged to the noble Lord, Lord Donaldson. He made my principal point for me. It is not unreasonable if somebody is going to be flown back—and let us not always pick on Thailand; it is a country with many merits—from some far distant and hostile country where he is incarcerated in durance vile and he is told that that foreign government has agreed with our Government that he can be transferred home; that the terms of the warrant are such and such; that he will serve such a length of time, subject to such and such remission and consideration for parole on such and such a date; and that the air ticket will cost so much—not the air ticket of the escort; but just the air ticket of the prisoner. If he says, "Oh yes! You can forget that", I do not think we ought to be in a position of being forced then to repatriate him at public expense.

To the noble Lord, Lord Melchett, I would say that there may be cases—not, I suppose, too many but there may be some—where the prisoner is no less deserving than the stranded tourist who has lost everything in an earthquake. But he is no more deserving, either. And if the stranded tourist is required to sign such an undertaking, I think it possible that the stranded prisoner should as well. As far as payment is concerned, as I understand it, anybody who is prepared to undertake to pay or to pay will serve.

On Question, amendment agreed to.

[Amendment No. 23 not moved.]

Lord Elton moved Amendment No. 24:

[Printed earlier.]

On Question, amendment agreed to.

[Amendment No. 25 not moved.]

Lord Elton moved Amendment No. 26:

[Printed earlier: col. 641,]

On Question, amendment agreed to.

Lord Melchett moved Amendment No. 27:

Page 8, line 37. at end insert—

("( ) the Secretary of State shall not be required to make any arrangements under subsection (2) above if it appears to him unreasonable to do so, having regard to the means of the prisoner and to the impracticality of recovering the said amount, whether immediately or at some future time.").

The noble Lord said: My Lords, I beg to move Amendment No. 27. The point here, as the noble Lord. Lord Elton, has already said, is simply the advantage of deleting from the Government amendment at some future stage the last few words, "or from any other source". I must say that the argument in favour of this deletion seems to have got stonger on listening to what the noble Lord has said about previous amendments. He said, as I understand it, that a signed statement from a prisoner to the effect that he will eventually repay the fare will be sufficient. I find that encouraging. The noble Lord's other remarks about the time period in which the Government would aim to collect the fare and the lack of any interest charges was also encouraging. I hope that the noble Lord is aware how grateful we are to him for the distance he has moved to meet these real concerns.

Having got that far, it seems to me very difficult for him to justify leaving in the Bill an express provision which would allow the Government, I am afraid, to lean on (if not to say, put quite undesirable pressure on) relatives, who may be quite distant relatives, of adults imprisoned abroad. It may be that there are people who are relatively wealthy related to a prisoner in an overseas country and it would be by far the easiest source from which the Government could obtain the money to repay the fare and by far the quickest. After all, if somebody has to return to this country and serve a long sentence before they are going to be in a position to repay the fare, the difference in value to the Government between that and getting it from a wealthy uncle, cash in advance or soon after transfer, is going to be considerable. I cannot see the justification for that unless it is to give the Government an opportunity to lean on relatives and say, "Look! If you do not cough up, we are very unlikely to transfer your nephew or cousin back to this country". I hope the noble Lord will convince me that that is (a) impossible on the face of the Bill and (b) that there is some other good reason for transferring the person back.

While on my feet and talking about the costs of transfer and whether or not they should be always charged to the prisoner, I will have to say to the noble Lord that there will be cases where people incarcerated abroad will have a much stronger claim to be repatriated freely to this country than the tourist who has lost all his possessions in an earthquake. I doubt whether the American Government felt it necessary to charge the American hostages held in Iran the cost of the air ticket home. It is possible that people held in similar circumstances (although perhaps not quite so dramatic) will be transferred back to this country under this legislation. It is important for the Government to recognise that there will be people coming under this legislation, people whom we all would feel it quite unjust to charge the cost of bringing them home, let alone their relatives if they were not able to pay. I hope that the noble Lord will be able to give some justification to those words, "or from any other source", which does not have the rather sinister connotation which, I am afraid, is still left in my own mind.

6.10 p.m.

Lord Elton

My Lords, I am grateful to the noble Lord, Lord Melchett, for his recognition of what we have provided under our amendment. We are at a point at which I find it very difficult to do more to assist the noble Lord, or at least to assist him to accept what we propose in the Bill. Certainly there will be very deserving cases and the Bill ought to take account of deserving cases as well as of undeserving cases, and it does give the Secretary of State some measure of discretion.

The noble Lord would like us to go further, but I do not see how we could do so without accepting it as a principle in the Bill that there should be some expectation that an expatriate prisoner, if I may so term him. should be flown home at public expense on certain occasions. I think that must remain a question of discretion. I can undertake to consider with my colleagues the extent to which administratively one could secure that what the noble Lord. Lord Avebury, describes as "leverage"—indeed, I used the word myself—is not unfairly exercised. All we are seeking to achieve is that the public shall be repaid for the expense of repatriation. I cannot think that there will be many occasions on which an able-bodied prisoner abroad would not be prepared to pay off the cost of his air ticket in order to get back to England to serve his sentence there. So I think that the occasions on which what the noble Lord sees as an injustice might arise are extremely limited, and I cannot believe that my right honourable friend would not recognise them when they occurred.

Lord Mishcon

My Lords, I am in a little difficulty because I do not like disagreeing with my noble friend at all and I certainly do not disagree with him as regards policy; but as my name has been attached to this amendment I think I must make something quite clear. I thought that what we were discussing—and I was with my noble friend completely—were cases where, quite apart from the question of means, it would be quite wrong and unreasonable for the Secretary of State to charge the expenses of the travel. We are speaking to an amendment. I notice, which is limited to the unreasonableness on the question of means, and not the circumstances of the case to which the noble Lord has addressed himself with considerable eloquence and feeling.

I agreed with him and I think it is only honourable to say that this amendment in fact limits the discretion on unreasonableness to the question of means, whereas the noble Lord, Lord Melchett, was saying (and, as I have said, I agreed with him) he did not think it ought to be limited to the question of means. It ought to be in cases where the Secretary of State finds it unreasonable to ask, or, in regard to means. where it is found ridiculous to "chase it". I think we owe ourselves a duty, before we leave this amendment, to "come clean", if I may use that colloquialism, and to say that is what we mean; and at the next stage of the Bill we ought really to bring forward an amendment to say what the noble Lord, Lord Melchett, has said so well.

Lord Melchett

My Lords, my noble friend is quite right. There are in fact two points and the amendment covers only one of them although I covered both in what I said. The first is the case where it would be quite unreasonable to charge people for bringing them home. The Iranian hostages, if there was an equivalent situation in this country and if they were transferred back here under the provisions of this Bill, would be a case in point. Although the noble Lord, Lord Elton, suggested that the Bill gave the Secretary of State discretion in such a case, I must say that on the face of it I cannot see that it does. I wonder whether the noble Lord would agree to write to us on that matter, rather than delaying our proceedings now. If I may say so, he is nodding his head, and that is on the record, so I think we can leave that one.

The second point is the question of whether it would be reasonable, when any independent adult is imprisoned abroad with limited means at his disposal and with the possibility of serving a long sentence here, for the Bill to contain powers to enable the Government to go to a rich relative and say: "Look, if you want Cousin Johnny home, why not agree to pay his air fare and then he will come back very quickly?" It is that pressure which I think would be impossible to resist although it may be difficult in some cases if the connection between the adult abroad and the adults in this country was a tenuous one with perhaps a broken-off relationship many years before. But the pressure is going to be extremely difficult to resist, and I think unwarranted. I am afraid the last few words in the amendment give rise to the possibility of that pressure being applied; and it seems to me to be something to which the noble Lord has not yet really addressed his mind. I hope that we shall be able to do something further on this before the Bill leaves your Lordships' House.

Lord Elton

My Lords, I will write to the noble Lord about discretion and I will also write to him about the second matter which he has raised. Of course, what will usually happen will be that young Johnny in prison in some distant clime will say: "Go to Aunt Margaret and she will pay". The representatives of the authorities will go to Aunt Margaret and she will either pay or not pay, and then it is up to Johnny to put it right. But I can see what the noble Lord is after, and I will write to him.

Lord Donaldson of Kingsbridge

My Lords, what Aunt Margaret should do is to write back to Johnny and say: "You sign an IOU and we will talk about it when you get out of prison".

Lord Melchett

My Lords, I am very grateful to the noble Lord, Lord Elton, for offering to look at both points, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Melchett moved Amendment No. 28:

After Clause 8, insert the following new clause:

("Annual reports by the Secretary of State.

. The Secretary of State shall lay before Parliament annually a report by him on the discharge by him during the preceding year of his responsibilities under this Act.").

The noble Lord said: My Lords, this amendment returns to a point which we debated at Committee stage. The noble Lord, Lord Elton, said that he would at least look at the possibility of providing some information, although he did not go so far as to say he would be happy to accept the duty to report annually to Parliament. The justification for this is really a justification for the length of time that your Lordships have spent on the Report stage this afternoon and indeed on the Committee stage before it. It might be worth reiterating that this Bill introduces very sweeping discretionary powers in the hands of the Secretary of State—powers to imprison people in this country for things that are not offences in this country, powers to imprison people in this country for much longer periods than are provided for by the law in this country and powers to do things which we would not accept in other circumstances.

I think that we have all accepted the need for the very wide and sweeping powers and for them to lie in the hands of the Secretary of State, and also for the Secretary of State to have very considerable discretion in the way that they are exercised. But our acceptance of those points should not blind us to the fact that we are dealing with very major powers which go right outside the rules of natural justice and other matters which normally govern the power of the state to incarcerate people in prison and to do other things by way of punishment for activities they have been responsible for. It is because of these very wide powers and the novel features of the powers in this Bill that we have rightly taken some time to debate them today and at the Committee stage. I think it would also be right for the Secretary of State to report to Parliament on the way those powers are exercised.

The noble Lord said at the Committee stage that once we had got this up and running there would be very few cases for concern. I do not think that the noble Lord, or those of us who might want to read the report, would object if in some years it was a pretty brief document. That does not seem to me to detract from the main point at issue, which is that the Secretary of State wil be taking decisions with no trial by jury, with no publicity and with none of the features which we normally consider to be an absolute necessity before people are locked up in prisons in this country. None of those safeguards will apply, and in those circumstances it seems to me the least that Parliament can do is to insist on having a regular report about the way in which the Secretary of State has exercised these very wide but, in my view, justified discretionary powers. I beg to move.

Lord Elton

My Lords, I got the impression at the Committee stage that your Lordships would be satisfied without an annual report so long as the availability of relevant statistics would provide the means for monitoring the working of the repatriation arrangements. I therefore undertook to tell your Lordships at this stage what we would be doing about this. We have it in mind to keep fairly comprehensive statistics for at least the first five financial years of the Act's operation. Separate statistics will be kept for the three United Kingdom jurisdictions—England and Wales, Scotland and Northern Ireland—and for each foreign or Commonwealth country involved. The numbers of outward and inward transfers requested, agreed and refused will be recorded.

In the case of inward transfers, separate figures will be kept for British citizens and others. Transfers which are refused will be analysed according to whether refusal was by the United Kingdom, the other state or the prisoner. Inward and outward transfers of persons under 18 will be separately recorded and inward cases will be analysed by the type of establishment to which they are assigned.

Transfers from hospital and straight to hospital will be separately identified. We will record all cases when the consent is given on behalf of the prisoner under Clause 1(2)(b). Cases in which the warrant provides for a sentence in excess of the United Kingdom maximum for the offence will be specially noted, as will cases where variation of the warrant is necessary for any reason.

Statistics relating to costs for inward transfers will also be maintained. The costs of escorts and of prisoners will be separately recorded, and in relation to prisoners' costs information about recovery before transfer and undertakings to repay after transfer from prisoners or others will be included, as will any cases where recovery is waived. Any instance of temporary return to the country of conviction will be noted. I hope your Lordships will agree that this will be an effective array of statistical information which will be available on request and placed, I think I can say, in the Libraries of your Lordships' House and another place, and they should provide all the information needed.

Lord Donaldson of Kingsbridge

My Lords, I hope the noble Lord will accept that that is not what I asked for at the time of the Committee stage; but I think that it is a very satisfactory reply. I think we are all quite capable of writing in for information of that kind.

Lord Melchett

My Lords, the noble Lord has gone a very long way to meet my point, and I am again grateful to him, as I think all of us have been through-out the Report stage on this Bill, for the amount of help he has given the House in meeting points that have been raised. He said, a little uncertainly, that this information would be placed in the Library of your Lordships' House. That is on the record and he has not qualified the remark. I assume that that will be on an annual basis, because the noble Lord referred to statistics being kept annually. As we leave the Bill, the thought that we will have all this information placed in the Library on an annual basis to allow us to see the results of our work and the effect of the decisions which the Secretary of State has made is a very useful commitment by the Government, and I thank the noble Lord very much.

Lord Avebury

My Lords, before we leave this Bill, may I say what a pleasure it has been to work on a piece of legislation where the Home Office has been co-operative. It has been a most unusual and refreshing experience and one that contrasts sharply with so many of the other dealings that one has with the noble Lord's department. I do not want to introduce a sour note, but the wealth of statistics which he has now promised us certainly makes one envious when one thinks of how difficult it is to pry statistics out of the Home Office relating to prisoners in the United Kingdom, because always when one asks for those figures one is told that it is too expensive to collect them or that there is some other reason for not giving them.

This last amendment is the last of a long line on which the noble Lord has been extremely forthcoming and helpful to the House. We must express our gratitude to him for the way in which he has dealt with the Bill and for the improvements that have been made in it. I think that your Lordships have finished with the Bill in a much better form than it came to us, and that we have greatly reduced the amount of work left to do on it by another place.

Lord Mishcon

My Lords, if I had the power to appoint the noble Lord, Lord Avebury, to any ministry, it would be a great pleasure to appoint him to many of them; but I would not choose the Foreign Office or the Diplomatic Corps. May I, who in future will have to deal—as he will—with the Secretary of State through his very able representative in this House, and with officials of the Home Office, say how much I have been moved in the past by their co-operation and help, how I am absolutely overcome by the assistance that we have had on this occasion and how I look forward to many other Home Office Bills where I shall have exactly the same co-operation from them.

Lord Donaldson of Kingsbridge

My Lords, I must just say that I have worked fairly closely with the Home Office for the past 30 years and I have had only about three really bad rows, which is a jolly good record.

Lord Elton

My Lords. I congratulate the noble Lord, Lord Donaldson, and, with your Lordships' leave, I would say that if there is any candidate for the Foreign Office or the diplomatic service it ought to be the noble Lord, Lord Mishcon. I must take this brief moment of your Lordships' time to refer to something which the noble Lord, Lord Melchett, said, and I am grateful to him for his intention of withdrawing this amendment and for his kind remarks. I said something at the Committee stage when I think I unwittingly misled your Lordships.

I indicated that I thought the number of cases likely to be dealt with under the Bill would be of the order of two, three or four a year, once the initial backlog had been dealt with. I think I was right to stress that the numbers were unlikely to be large; but equally I think I was too optimistic, as the noble Lord, Lord Melchett, has suggested. The fact is that it is impossible to estimate at this stage precisely what will be the number of cases per year, but I understand it is fairly certain that it will exceed a mere two or three and I am very sorry if I misled your Lordships.

If I may add some ashes to the sackcloth in which I now garb myself, I ought to add a word about a slip that I made in speaking about the definition of the Secretary of State for the purposes of the Bill, recorded at col. 69 of the Official Report. I think all of your Lordships will have realised this but it ought to be on the record. In response to a question from the noble Lord, Lord Somers, I indicated that, in practice, the Secretary of State in the Bill referred to the Home Secretary. That is the case in relation to transfers to and from England and Wales. I should have made it clear, however, that for the purpose of transfers to and from Scotland and Northern Ireland, responsibility under the Bill will fall respectively to the Secretary of State for Scotland and the Secretary of State for Northern Ireland. I regret the silly oversight in this matter which I made. Your Lordships have been so kind to me already that I am sorry to have to ask for your further indulgence. I can only say that I have found this an agreeable occasion, too.

Lord Melchett

My Lords, I am delighted that my amendment provided us with such an opportunity to be polite about each other. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.