Repatriation of Prisoners Bill [H.L.]

HL Deb 05 March 1984 vol 449 cc23-75

House again in Committee on Clause 1.

3.48 p.m.

[Amendment No. 6 not moved.]

The Chairman of Committees (Lord Aberdare)

I have to point out that, if Amendment No. 7 is agreed to, I cannot call Amendment No. 8.

Lord Mishcon moved Amendment No. 7:

Page 1, line 17, leave out from ("or,") to end of line 19 and insert— ("where the prisoner because of his mental or physical condition is unable to understand the meaning, purpose and likely effects on him of the proposed transfer, by a person authorised to act on the prisoner's behalf as provided for by those arrangements,").

The noble Lord said: This amendment very much reflects the concern of the National Association for Mental Health, an organisation which obviously has the respect of your Lordships. The organisation's concern is once again based on the question of consent. As your Lordships' Committee will see, under Clause 1(1)(c) of the Bill as it stands there is considerable vagueness as to who is entitled to give the consent. There is the question of whether someone is entitled to give consent regardless of whether the patient concerned can really understand, the nature and quality of his act", (if I may use that phrase) and what is involved.

We are anxious to see that this question, which was referred to by the noble Lord the Minister in his Second Reading speech, is clarified under the Bill. So we seek to say very clearly that where, because of the patient's mental or physical condition, he is, unable to understand the meaning, purpose and likely effects on him of the proposed transfer", then a person authorised to act on his behalf, as provided for in the international arrangements, can do so. The amendment spells out a position which I believe the draftsman of this Bill intended to protect, but I think there is vagueness at the moment and clarification is therefore sought. I beg to move.

Lord Avebury

I want to support what the noble Lord, Lord Mishcon, has said, because I think that there are cases—the noble Lord the Minister will be aware of some of them—where foreign citizens in our psychiatric institutions will find it extremely difficult to act in an informed way over the choice that they have to make when this Bill becomes law. Certainly they will not be able to understand the provisions of the Convention on the Transfer of Sentenced Persons and it will be necessary—as is, indeed, envisaged—for somebody to exercise the power of choice on their behalf.

It is simply a question. I think, of spelling it out on the face of the Bill so that there cannot be any doubt. Having words of this kind there will mean that the person authorised to act on the prisoner's behalf can make that decision. There will not be any doubt as to whether, in those circumstances, the Minister has to look to that other person, or whether he has to depend on explanations being given to a patient which he may have great difficulty in comprehending.

I think that for the sake of clarity and definition, as the noble Lord, Lord Mishcon, says, it is better to have the words contained in the amendment spelt out in the Bill.

Lord Elton

We would indeed be content to make the second part of subsection 1(c) of Clause 1 more explicit. The way that noble Lords have sought to do this, unfortunately, is not entirely satisfactory, our main point being that the amendment does not refer to the possibility of consent being given on the prisoner's behalf because of his age. It is necessary to allow for the possibility of parents giving consent in the case of young children. This is provided for in the Council of Europe convention by reference to age as well as to physical and mental condition. So we will be happy to consider introducing an amendment at the next stage which meets the purpose of the noble Lord's proposed amendment and which also covers children. I hope that the Committee will find that satisfactory.

Lord Mishcon

Once again, I am most grateful to the noble Lord the Minister for having admitted the main principle of the amendment. In the circumstances, therefore, I am very happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Lord Mishcon moved Amendment No. 9: Page 2, line 1, leave out ("may") and insert ("shall")

The noble Lord said: I approach this amendment with some sense of mystery as to the reason for the use of the word "may" instead of the word "shall". The word "may" presumably gives the right to the Sectretary of State—should he want to exercise it—to have some sort of secondary discretion, because under Clause 1(1)(b) he has to agree to a proposed transfer before it can take place. Having so agreed, it does seem extremely odd that he should not then proceed, in all the circumstances, to issue a warrant.

I am not given to being of a suspicious nature, but I did wonder—and others have wondered, too—whether the Secretary of State has given himself this secondary discretion because of another clause in the Bill which deals with the question of the payment of charges for the transferee. This is to be a humanitarian measure, and I quote the words of the noble Lord the Minister in so describing it. It would be quite dreadful if a power were given to the Secretary of State whereby, someone having gone through all the motions and given his consent, he had this hanging over his head because transfer charges had not been paid.

As I said, it may be that I and others have been unduly suspicious, and that the noble Lord the Minister and the Government have no such contingency in mind. If that be so, I am sure that they will agree to the amendment.

Lord Donaldson of Kingsbridge

I should like to support the amendment. There is a great reluctance on the part of draftsmen to say "shall" to Secretaries of State, but I think we must try to get over that because the terms of Clause 1 are that three things should be agreed. One is that the Secretary of State shall agree. Having agreed, I cannot see why he should have the option of disagreeing later. I am sure that the suggestion of the noble Lord, Lord Mishcon, regarding financial motive is beneath contempt and could not possibly be true of this Government. But, if they can give any other reason, we shall be interested. If not, it seems quite ridiculous that the Secretary of State should first of all have to agree before the thing can happen and then have to agree again. This cannot be right, and I hope that the noble Lord the Minister will be able to help us.

The Lord Bishop of Lincoln

I merely want to say that the anxiety expressed by the noble Lord, Lord Mishcon, has also been expressed to me, and I should like to support what he said.

Lord Denning

"May" is often construed by the courts as meaning "shall". It just leaves room for the very exceptional case, and it would not be necessary to impose such a complete burden on the Secretary of State. I should have thought that "may" was perfectly all right.

Lord Elton

I am most grateful to the noble and learned Lord, Lord Denning, for that intervention, although it may deny us one of those fascinating, periodic and ritual debates that we have in your Lordships' House at intervals of about six months on the difference between "may" and "shall".

All that is required of me, I think, is to say two things. One (which I can say) is that the provision is not so framed in this clause as to enable the Secretary of State to say, "Right, then you cannot come home", in connection with a later clause. We shall be discussing the principles of payment and recovery of costs later.

The second is that circumstances may arise when the Home Secretary not only can but ought to change his mind. Those circumstances will be rare, as the noble and learned Lord has said. But suppose that after everything is arranged—and these things do happen—the prisoner murders another prisoner or commits grievous bodily harm against a prison officer, or it is discovered that he was (and this has only just come to light) closely involved and perhaps guilty of a different and serious crime before his conviction for the present offence. I have drawn at random three instances where the Home Secretary may very well not wish to release a prisoner who at an earlier stage he had agreed should be released. In at least two of those circumstances, I should have thought your Lordships must agree, he should not be sent off scot-free to another country.

Lord Melchett

Can I say, first of all, to the noble and learned Lord, Lord Denning, that I think that in this case there is a difference from some others that he may have in mind. As has been pointed out, the Government have, as it were, a double discretion: they already may or may not consent to a transfer in the first place: and then, when all the details are agreed—including their consent having been given under their own discretion—they have a second discretion about whether or not to go ahead with it. The noble Lord has given us some examples which he thinks might justify that being done. I must say that I have my doubts for a number of reasons.

It seems to me that all the parties to this agreement may have good grounds for second thoughts once it has been concluded. The prisoner may hear, two days after he has signed the documents agreeing to the transfer, of the likelihood that prisoners in the particular country where he is serving his sentence are to be given a free pardon. It may be in his interests to stay where he is for another week or two to get a free pardon and be released immediately rather than to come back to this country and serve the remainder of his sentence.

I just wonder whether the Government will allow the same discretion to everybody else that they are reserving to themselves; the second bite of discretion, as it were, in this case. If they are not going to give that same sort of discretion to anybody else to break off an agreement that has been concluded if it happens to suit them for some reason and after the Government have at their own discretion decided to enter into it, I am not sure the Government should retain that right.

Lord Mishcon

Before the Minister finally replies to the discussion, I should like to put the following matter to him. I can see—unlike, if he will forgive me, my noble friend Lord Melchett—the possibility of some intervening circumstance of a very weighty nature, such as the noble Lord the Minister has indicated. However, that does not really affect the main principle of my argument. although it does affect the way in which an amendment ought to be put.

According to the Minister's examples, the amendment ought to be phrased along the lines that, "unless there is some intervening material circumstance, he shall", and then it is mandatory. If in his reply the noble Lord the Minister could kindly indicate whether an amendment along those lines would at least receive his favourable attention, that would be enough of a hint to me to see that the appropriate wording goes down for the Report stage. I am perfectly prepared to concede the intervening circumstance.

In reply to the noble and learned Lord, Lord Denning—and I always do this with the utmost deference—let me say that he has taught a very humble colleague a lesson which means that before the courts I will now be able to argue that "may" equals "shall", and "shall" equals "may".

Lord Denning

It does very often.

Lord Mishcon

Moreover, I shall be able to cite the noble and learned Lord as my authority for so saying!

Lord Denning

It is in the books, too.

Lord Avebury

The noble and learned Lord will have heard the Minister say that cases may well arise in which there is the commission of further offences by the individual in between the time the Secretary of State first agrees and the time the transfer is due to be exercised, in which case obviously the person will have to go through the process of trial, and so on. If that is the only case that the noble Lord wants to advance in which the Secretary of State would wish to use his discretion, I wonder whether that matter could be written into the Bill. Perhaps the wording might be "shall, unless", and the Minister could then think of some words to describe the circumstances which he has outlined, where a further offence has been committed by the prisoner or the detained person in the intervening period between the agreement having been given and the transfer effected. It would not be difficult, would it, to write it into the Bill? In that way the area of discretion which is open to the Minister could be prescribed clearly on the face of the Bill instead of being left open-ended. I think that Parliament always prefers to do that. In spite of the admiration that it has for the present Minister, it does not like to give completely unfettered powers to all his successors. If the Minister has successfully outlined the circumstances in which the discretion would be used, I am sure that Parliament would like to see it written on to the face of the Bill.

Lord Elton

I always listen to flattery with close attention. I am not sure that the noble Lord, Lord Avebury, has entirely convinced me of my own ability to complete an exhaustive list of the circumstances in which the Secretary of State might properly exercise his discretion. Your Lordships will appreciate that I am now thinking on my feet. What about a prisoner who is going to go back to a country in which he expects to be received by a friendly regime, but that regime has been overthrown by one which has sworn to spill the blood of people like him on the streets? I should have thought that your Lordships would have every sympathy with a case like that. Of course, under those circumstances I can hastily assure the noble Lord, Lord Melchett, that it would be open to the prisoner to withdraw his consent. That is open to him at any stage until he is actually removed, and I dare say that that will be a matter of reassurance to the noble Lord.

However, I look forward with interest to any revised draft that noble Lords opposite may produce for the Report stage. If anything occurs to me to help them in the interim, I will certainly let them know. But, as your Lordships will appreciate in 30 seconds I have thought of another example and that makes me hesitate to commit the Government to putting on the face of the Bill a definitive list of the reasons why the issue of the warrant should not be mandatory on the Secretary of State. There might be danger in that, but I shall look closely at any ways round the danger that noble Lords may propose.

Lord Melchett

I hope that the noble Lord the Minister will do that, because as he knows I strongly support the degree of discretion which the Bill has incorporated in it. I accept the argument that the Government put forward on, I think, Second Reading, that there will be a very large variety of circumstances in which we need to be free to enter into bilateral arrangements with other countries and to meet their requirements to allow people to be transferred back to the United Kingdom. In those circumstances, there does rest upon the Government a particular responsibility because given the very wide discretion and the unusual circumstances to which the Bill gives rise of people being imprisoned in this country for offences committed abroad which would not have been offences if, for example, they had occurred in the United Kingdom, the Government need to be certain that any discretion they do have in the Bill really is necessary.

As regards the second example which the noble Lord put forward, it is surely for the prisoner to make the decision as to whether or not he wants to proceed with the transfer, and I am grateful for the noble Lord's assurance that that is possible. So I do not think that that adds to his argument. I hope that he will look at the point made by the noble Lord, Lord Avebury. If there is the particular problem of the prisoner committing a further offence, and if it is not possible for the prisoner, in the country in which he is held—whether this country or another country—to be arrested and charged with that offence and for that to negate the transfer agreement (which I would want to look at). then it may be that the best answer is to write the specific instance into the Bill and to remove any possibility that the "may" will in fact be interpreted by the courts as meaning what it says.

Viscount Hanworth

I have not listened to the whole of this debate, but it occurs to me that there might be a compromise by putting in the words, "unless new circumstances arise", which, although it does not define what they are, would at least show what one is trying to achieve.

Lord Mishcon

I am not quite sure whether the fact that a noble Lord is not present when I make a contribution to the Committee, however humble, necessarily means that it is a contribution to which that noble Lord would have listened even if he had been present. But I can only say that that was the contribution I endeavoured to make myself: in other words, putting some words into the amendment at the Report stage.

I feel, along with those who have spoken, that it is not just an obligation on Members of the Opposition, or on Members from whatever quarter they may come in your Lordships' Committee, to make a contribution which is acceptable by way of wording. It must he clear to the Minister that there is a feeling in the Committee that there should be some definite mandatory duty on the Secretary of State, having gone as far as this, to proceed with the issue of the warrant unless there is—and I put it this way—some material factor in the intervening period. I have put it that way because what I am fearful of—and it very often happens—is that one gets an indication in a debate that possibly it would be a good idea to put down an amendment for Report. and then when the Report stage comes the Government see some fault in the amendment—not that the noble Lord the Minister acts in this way—and it is all too late when it comes to Third Reading.

This is an important point, and perhaps the noble Lord the Minister, in his kindness, will at least think about the question of whether the Government would wish to import words into the Bill which will in some way fetter the discretion of the Secretary of State to change his mind in this period. If he were to do that, I personally would be very grateful. I am not asking him to promise to do it; I am merely asking him to consider doing it.

Lord Elton

The noble Lord is always courteous and persuasive. I recognise the anxiety of noble Lords. Of course we will consider further what they have said, and we will do so with the genuine intention of seeing if there is something we can bring forward to mitigate their anxieties. But I hope that noble Lords will not forget the contributions I made earlier in this short debate, and thus be lulled into a sense of false optimism or into feeling that I have in some way misled them if I do not actually succeed in coming forward with what will satisfy them. That, in its turn, may lead noble Lords to think about it themselves. But I will think about it.

Lord Mishcon

I intend to remain the optimist that I am, but I completely accept what the noble Lord the Minister has said, and in the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

4.10 p.m.

Lord Avebury moved Amendment No. 11: Page 2, line 8, after ("to") insert ("all the circumstances including").

The noble Lord said: As this clause is presently drafted, it allows the Secretary of State to consider the transfer into the United Kingdom of a non-citizen only when that person has close ties with the United Kingdom. Although, of course, close ties would be a powerful element in consideration of a transfer, we suggest that the words "all the circumstances" should be inserted here and that the close ties should be associated with that phrase. If the Secretary of State has an absolute discretion in relation to all persons whose transfer he agrees, it is unnecessarily restrictive to limit his consideration of a particular individual in this way.

It may be that very few cases would arise where it is appropriate to accept a prisoner or patient who did not have close ties with Great Britain but, as the noble Lord has shown on previous amendments, it is always easy to construct particular examples showing how a power could be used and how everybody would think it ought to be used. In this case it may be easy to do so as well. Perhaps I may cite a couple of examples at random.

Let us suppose that we restore diplomatic relations with Argentina and that a resident of the Malvinas, visiting Buenos Aires, commits a serious offence there. Would it be quite out of the question for him to serve his sentence in Great Britain unless he had some close relatives here? If that person applied for a transfer to a cultural-social environment which was more familiar to him in the United Kingdom, although he is not a citizen of the United Kingdom—and the noble Lord will remember that in the Nationality Act we did not extend citizenship to persons living in the Falklands—would it be beyond the bounds of possibility for that person to return to the United Kingdom and serve his sentence here?

To take another example, there is the case of a person who lives in Jersey and who commits an offence in, say, Italy. That person is not a British citizen and may have no close ties or connections with the United Kingdom. Prior to committing the offence, he may have lived the whole of his existence in the Channel Islands, and then he goes to Italy and commits a serious offence there and is imprisoned. Would it be beyond the bounds of reason that that person might apply to be transferred back to the United Kingdom to serve the completion of his sentence? The noble Lord will be aware that in the case of long sentence prisoners from the Channel Islands, there are no facilities for them in their own prisons. So, we have quite a few persons who hail from the Channel Islands serving life sentences in the United Kingdom.

A third example is the case of British overseas citizens. Of course, a British overseas citizen does not have a country to which he might be transferred, but the environment in the United Kingdom might be a great deal better for him than the environment in some dictatorship overseas where he happens to have committed an offence. Again, would it be outside the discretion of the Secretary of State to consider that that person might be acceptable within the prison system of the United Kingdom?

I cite those examples to illustrate the general point—and I do not say that it will happen very frequently; it might happen only once in a blue moon—that we would want to accept a person in our prisons who does not have close ties or connections with the United Kingdom. But I think that the Minister and the Government would be wise to have this discretion written into the Bill so that in those very exceptional cases it could be exercised. I beg to move.

Lord Elton

I am much obliged to the noble Lord, Lord Avebury, for his explanation of the thinking behind his amendment because it relieved me of misconception. I had expected him to be hoping that the Secretary of State would act as a sort of Scarlet Pimpernel, snatching Polish-speaking correspondents of the BBC World Service from other parts of Eastern Europe to serve their term in this country rather than that which their conduct had offended.

The noble Lord, Lord Avebury, cited three examples. The first was the Falkland Islands, and I am strongly of the opinion that the Falkland islanders now have the privileges which the noble Lord thinks they lack. I seem to remember that we had a debate of some historic importance on the matter and I would have thought that it would have given the noble Lord some memorable satisfaction, but there we are.

As to the Channel Islands, Clause 9(4) enables the provisions of the Bill to be extended by Order in Council to the Channel Islands, and that is the normal way in which provisions of legislation of this sort are extended. Your Lordships will be well aware that we are not in a position to legislate for the Channel Islands ourselves.

Perhaps I may give examples of cases in which the Secretary of State's discretionary power might be used. There is that of the foreign spouse of a British citizen or that of a person resident in the United Kingdom for many years whose only citizenship was still that of his country of origin. It might also be used, if the need should arise, in the case of Commonwealth citizens who have the right of abode in the United Kingdom because before the 1981 Act came into force they had either been born to a United Kingdom parent or had married a man who had the right of abode. People other than British citizens and Commonwealth citizens with the right of abode would be subject to immigration control. A decision whether or not to repatriate them will include consideration of whether it would be in accordance with immigration policy to admit them.

The noble Lord had led me into ground which I was not expecting to cover. In replying, I daresay that I have given him information on which he would like to reflect. I wonder whether he would take the opportunity to do that between now and the Report stage?

Lord Avebury

Obviously, I shall consider very carefully what the Minister has said, but I think that the kernel of my remarks still remains, that although I gave particular illustrations with which the noble Lord has dealt, there may be others which could be produced. The whole nature of the amendment presupposes that the circumstances will be very unusual, that we cannot envisage them at this stage, otherwise we would be able to write them into the Bill, and that the Minister is not bound to use this discretion—he does so only if in all the circumstances, in spite of the fact that the person does not have the close ties or connections with the United Kingdom which the Minister briefly described at the end of his remarks, it would be appropriate to admit him.

I am not sure that between now and the Report stage it will be possible for us to think of all the cases that could arise, however carefully we apply our minds to this. Therefore, I still hope that in the end I might persuade the noble Lord that, even if no case could be produced which would justify his saying that that individual should be admitted, notwithstanding the fact that he is neither a citizen nor has the close ties or connections which are set out here, nevertheless it would be appropriate for him to be admitted. If he cannot think of that example, I would still hope that the Minister would agree to something like this when we return to it on Report. However, I shall certainly undertake—and this is the wrong way round, is it not?—to consider very carefully what the Minister has said.

Lord Melchett

Before the noble Lord withdraws his amendment, perhaps I could put a question to the noble Lord the Minister. It seems to me that the burden of proof is on the Government. In drafting this Bill, and in the approach that they have adopted, the Government have said that discretion is necessary because they cannot foresee all the many different circumstances that will arise. I believe that that is a basic proposition that the Committee has accepted.

In some other circumstances it seems to me to be a little disingenuous for the noble Lord to turn round on the rest of us and say. "You provide me with all the detailed cases which will arise in the future, during all the years when this Bill will be an Act of Parliament. with all the different countries with which we shall have dealings, and in all the strange individual circumstances in which we shall wish to transfer prisoners to the United Kingdom; and when you have done that, I will consider your amendment". For the Government to say (if this really is their view) that they will be prepared to consider transferring people to this country, whatever the circumstances that may arise, only if those people meet the formula in the Bill—that is, that they have close ties with the United Kingdom—seems to be a proposition difficult to support.

I think that there might be circumstances in which some greater flexibility would be desirable. Bearing in mind the general approach which the Government have adopted to this problem, I hope that the noble Lord will at least be prepared to cast his mind over the possibility that there will be other circumstances. Of course, the Secretary of State will always have the veto; nobody is compelling the Government or any future Government to do anything. But when we make the law in the first place, I believe that we should leave the possibility open.

4.20 p.m.

Lord Elton

I quite see the force of the last thing that the noble Lord, Lord Melchett, said, which was that whatever was decided it would be protected as to its limits by the operation of the Home Secretary's veto. But I do not think I am in such a difficulty as he imagines over the rest of what he proposes. As I understand it, it is perfectly right that the Bill should commit the Government to bringing back into this country people who, if they had committed no offence, would have a right to live in this country, and who, having offended, were detained by a government which agreed with our Government that they could properly be transferred to this country to serve the sentence, and that Government agreed with ours what the extent of that sentence should be on the face of the warrant, or however expressed, to which the prisoner himself agreed.

But what the noble Lord is actually seeking to do is to say that there may be circumstances in which anybody in the world might qualify for the charitable, as it were, occupancy of our prison cells who could not be admitted under ordinary immigration law. As I would describe the Secretary of State's discretion, it seems to me to extend to all the cases that we could properly commit him to consider, and I am driven back then by what the noble Lord, Lord Melchett, said to wonder whether in fact what they had in mind was some glamorous, Scarlet Pimpernel act by which this Government could snatch people from difficulty in another country. But that could not happen because the Government of the other country would, under the terms of the Bill itself and the convention, have to be a party to the agreement.

There is no question of rescuing people from an oppressive regime, even indeed if they are British citizens, without their consent. If they are not British citizens then their claim on the accommodation of this country's prison service, which, as the noble Lord, Lord Donaldson, at least will agree, is heavily overloaded, is a questionable claim. Therefore, I cannot now offer quite such a friendly, interested view of the noble Lord's amendment when, as I suspect, he brings it back at Report stage, but he is adept at proving me wrong, usually by quoting my own arguments, so that it is always possible that he will succeed.

Lord Avebury

I certainly do not want to introduce all these people that the noble Lord described who are suffering under oppressive regimes overseas. It might be nice to be able to bring them all back here but that was not the intention of the amendment, as the noble Lord understands now. There certainly are going to be borderline cases. Without wishing to tempt providence by saying that the Home Office has been generous in its treatment of certain individuals, I should like to draw the noble Lord's attention to the fact that certain Commonwealth citizens who had been admitted here as dependants but who had never acquired British nationality because they were not registered by their parents, and who have been sentenced to terms of imprisonment overseas which have resulted in their absence from the United Kingdom for a period of over two years and who have thus not qualified to come here as returning residents under the immigration law as it stands, have nevertheless been readmitted by the Secretary of State in the exercise of his discretion.

That fits in with what the noble Lord has just said, and I was glad that he has put on the record that it would be the intention of the Government, once this Bill becomes law, to see that there is, if you like, a no detriment provision applying to the persons who have had an indefinite leave to enter the United Kingdom. In other words, anybody who had indefinite leave to enter here, and then went abroad and committed an offence which resulted in a term of imprisonment, would qualify as having a close tie or connection with the United Kingdom within the meaning of this clause.

That is a valuable concession, for which I am grateful to the Minister. But it illustrates the fact that there are certain people who would not ordinarily be qualified to enter the United Kingdom and who depend on the goodwill of the Secretary of State on conclusion of their sentences now to come back here and who, after this Bill becomes law, would similarly depend on the goodwill of the Secretary of State to agree that their ties, or connections, with the United Kingdom are close enough to justify the application of this clause as it stands without the additional words which I sought to insert.

With the noble Lord's fairly broad interpretation I should probably be quite happy even though there may be wholly exceptional and far-fetched examples which I was not able to construct, and which none of us can imagine, where, after the Bill becomes law, the Secretary of State will say, "If only I had listened to this amendment then I should have been able to admit this person whose claims are so obviously tempting to our sympathy. But as the person does not have the close tie or connection which is provided for under the clause I am not able to do that". I hope that that will not arise but I fear that in one or two, or a small number, of cases it may unless we accept this amendment, or something like it. Does the Minister want to intervene?

Lord Elton

It may not have been clear from what I said, but I understand that in fact the Secretary of State's discretion would extend as far as his discretion to admit people outside the immigration rules. If that is the case I think that the noble Lord's anxiety is almost met, because that would be the effect of what he is trying to put into the Bill. I think I ought to write to him in confirmation of that.

Lord Melchett

There is a case which has occurred to me as I have been listening to the debate. Perhaps it would be helpful if I put a suggestion, though it is off the top of my head and may not be sensible. Can the noble Lord tell me either today or at some future point whether this would fall within the definition? If, with widespread popular support from the people of Great Britain, somebody recruited a group of mercenaries from this country to go to fight against an evil regime and those mercenaries were caught and incarcerated for hundreds of years in prison and then were subject to a transfer and were going to come back to complete their sentences here when it was discovered that one of them was a stateless person who had no ties with the United Kingdom other than that he had been recruited along with a number of other United Kingdom citizens—he had never been to this country but had no other country in the world to which he could be transferred or which was prepared to take him—the Government would be faced with the prospect of half-a-dozen returning heroes, as it were, and one of their colleagues left languishing in jail. In those circumstances where the person had never been here, had no relatives here, and his only connection was the recruiting sergeant who had also recruited a number of people from this country, would his case be considered?

Lord Elton

The properly cautious reply to that is that every case would have to be considered on its merits.

Lord Melchett

Would the Act which the noble Lord is steering through this House allow the Government to consider the merits of that particular case, or would it be ruled out?

Lord Elton

Indeed, with only the knowledge that the noble Lord has given to us I would say that the Secretary of State would be able to consider it, but what I cannot tell him is what his conclusion would be, which is what I think is more germane.

Lord Avebury

I am grateful to the noble Lord the Minister for his offer to write to me. We could save quite a lot of trouble if we do not have to take up individual cases of prisoners who serve sentences of more than two years overseas and are therefore dependent upon the discretion of the Secretary of State to agree to their return to the United Kingdom even though they were given indefinite leave to remain, for instance, as dependent children prior to the commission of that offence in some foreign country.

If we did not have to take up those cases individually with him but had a blanket assurance that they would be admitted having had indefinite leave to enter, this would be most valuable, and if that was then extended to the cases that could arise under this Bill where such persons were serving sentences overseas, and are deemed to have a close tie or connection with the United Kingdom by virtue of their having been admitted as the dependant of a person who is settled here, then this would certainly be a step in the right direction.

However, as the noble Lord, Lord Melchett, has just illustrated it is possible to think of further examples off the top of one's head. I was wrong in taking the Falklands, as the noble Lord the Minister pointed out. Perhaps I should have said Gibraltar, where I think the rule under the Nationality Act was that a person could apply for British citizenship but did not have it automatically. A citizen of Gibraltar who had not applied for British citizenship would be in the position that I postulated for the resident of the Malvinas who had committed an offence in Buenos Aires. I do not wish to weary your Lordships with the construction of further artificial examples, because that was not really the point. The point was that the circumstances were those that we could not foresee which required the words "all the circumstances" to be written in here.

We have had a good innings on this and we will consider it more carefully between now and Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 12 not moved.]

Lord Donaldson of Kingsbridge moved Amendment No. 13:

Page 2, line 13, at end insert— ("() Where the consent of the Secretary of State pursuant to subsection (1)(b) above is refused, such refusal shall he in writing and accompanied by a statement of reasons.").

The noble Lord said: This is a simple amendment on which the issue is perfectly clear. There is no right of appeal in the Bill against the refusal of the Secretary of State to agree to a transfer of this kind. It seems to me and to my noble friends that there should be an obligation in the Bill to give his reasons in those circumstances. The pressure varies a little with subsections (2)(a) and (2)(b). Where a person is a British citizen, it would be monstrous, if he agrees and the holding country agrees to the transfer, but the Secretary of State here does not agree to having him brought back, that he should not be given the reasons for the refusal. What those reasons could be, one does not know, but one can imagine the reasons of public policy, which we do not need to visualise. There would not be many such cases, I believe. However, it would be most unreasonable for a British citizen, once the Bill becomes an Act, to be refused the privilege, or almost the right, to be given reasons.

Under subsection (2)(b), it is easy for the Secretary of State to give reasons. All he has to say is that the ties are not close enough. That should not present any problems. Under paragraph (c) it is simply a question of transfer or retransfer and the situation does not arise. I do not think it is worth spending more time on this. It is an obvious point and I am interested to know what the Government have to say about it.

Lord Elton

It is indeed our intention that the Secretary of State's decisions on requests for transfer should be conveyed in writing. Indeed it is difficult to know how else that could be done because there would have to be written communication between the authorities concerned in this and the other state involved. A statutory requirement to that effect would not seem necessary but that is not the heart of the matter to which the noble Lord has addressed himself. As I hope I made clear on Second Reading, where the requirements of the relevant international arrangements are met, the Secretary of State will not normally withhold consent to a transfer except for compelling reasons of public policy. On the rare occasions when a refusal may be necessary, however, it may not always be in the public interest for the reasons for refusal to be explained. From the way he is swaying his head I can see that the noble Lord will want an example. An example of the type of case in which it might be difficult to give full reasons for withholding consent for transfer would be, for instance, where information had come to light about a prisoner's involvement in other criminal activities which might lead to a further charge against him and others and where to reveal such information at that stage might prejudice the chances of apprehending, or collecting evidence about, those involved.

Another example might be where the reasons for withholding consent were concerned with terrorist activities and where considerations of national security might be involved; obviously reasons which revealed sources of confidential intelligence could not be revealed. The best I can do for the noble Lord is to say it is our honest intention—I know what I say cannot bind successor Governments—not unreasonably to withhold agreement to a transfer either of our own people into this country or of other prisoners out of this country on any occasion. We shall normally be perfectly open about why the decisions are taken. But the danger is that if we put a mandatory provision in the Bill for reasons to be given, I think I am right in saying that the reasonability of the reasons become justiciable and one then gets into an area where a door that ought to be kept closed is occasionally prised open. There is no sinister intention in what I am saying; it is a matter of prudence and experience.

Lord Donaldson of Kingsbridge

I accept that there is no sinister intention, but there may be a sinister effect over the years. People's attitude to criminals vary and people here may say that they do not want some fearful criminal who has done something awful in another country back here and that we should allow that chap to stew in his own juice over there. This is the kind of thing which is not in the spirit of the Bill and which in my opinion would be absolutely unjust and should be protected against. Things change very fast and, under a Nazi government, I am quite sure we should have got a reply of that kind. I think the Bill should be strong enough to deal with it.

Over terrorism it might be a good answer to say, "I am not prepared to have this man back. I already have too many of his kind in my prisons". This is already true in this country with the IRA terrorists, though it does not apply to most of them because they come from within our jurisdiction. That would be a perfectly good answer and I cannot see why it should not be made. The idea that the criminal might be suspected of something else and therefore it would be unfortunate to interfere with the trial which the holding country were to put him under is not sound because the holding country would not agree to his removal.

I do not think the noble Lord has satisfied me at all about this. It is a question of the British citizen, who has the full rights given—or perhaps one should say privileges rather than rights—under the Bill, and who in 20 years could be denied them for no good reason. I am not happy about this.

Lord Elton

I shall take these points seriatim. The only way I can see of dealing with this is to construct another hypothetical example. Let us say that in a British prison there is a person who is gaoled for four years for fraud and he is a Swiss financier. How he became Swiss is something that the story need not reveal. Weeks after a proposal that he should be returned has been made, there arrives on the Secretary of State's desk a dossier which shows that he is the Mr. Big whose activities before he was locked up resulted in a constant flow of vital information extracted from various other nefarious people and collected by him and sent abroad to an enemy of the State. If the Secretary of State were to be obliged to say anything even so general in publishing his reasons as that he had decided not to let him go on grounds of national security, all the people from whom Mr. Big was collecting information would be alerted to the fact that they were in danger and all the birds would have flown by the time the arrests were to be made.

That may seem rather fanciful but it illustrates a principle that there will be occasions on which the requirement to give reasons could not but have the effect that the national interest would be affected. I cannot say the extent to which it would be affected. The noble Lord cannot say the number of occasions on which it would be affected.

It seems to me that a Secretary of State of whatever government in this country is likely to be acting on principles which are at least as fair as and probably fairer than those of other countries. I do not think it is the function of a Government framing this sort of legislation to provide against the advent of a Nazi government in this country. If it was, I can tell your Lordships that if the legislation militated against the object of the Nazi government this building would be burnt to the ground as the Reichstag was.

Lord Melchett

I must say that the noble Lord has not convinced me, either. I can see there might be occasions when the grounds for refusing a transfer were national security of one sort or another and the Government would not want to have to go to court and reveal the source of the evidence on which they based that decision. I should have thought that that would be a comparatively simple matter to accommodate in an amendment, so as to ensure that was not something which could be looked at in detail in court and that the Government had to give their reasons unless national security was involved or something of that sort.

But the noble Lord then came back and said that even to reveal that there were grounds of national security might itself produce some disadvantage. He suggested that he might have been a little fanciful, and I think I would agree with him. There will come a point—and I hope the noble Lord will consider this—where the rights of a citizen being denied are so important that the small risk of something rather fanciful occurring, as the noble Lord has suggested, is one which the Government must run. This does leave an enormous amount of discretion, as the Minister knows, in the hands of the Secretary of State—discretion which we should not dream of giving in any other circumstances. It is a discretion which is going to involve somebody possibly serving 50 years in jail or five, for example. It is an awesome power which is being given to an individual Minister in the Government.

Lord Elton

Would the noble Lord allow me to intervene? I cannot think of who the people serving 50 years in jail in this country would be, and it would be those to whom the noble Lord's proposals would apply, in the circumstances which we have discussed, because, since we are dealing in hypothetical cases—and this is the difficulty that is always involved in so doing—we are talking about a threat to the security of this country and not of another country, and the Secretary of State is not going to refuse to have a British prisoner repatriated to Britain in order to protect British security unless he cannot imagine how he is going to keep him inside any jail. So it seems to me we are considering whether or not to let people go from this country and, if so, it seems to me that the noble Lord has overdrawn his case.

Lord Melchett

With respect, I do not think I have: and I can envisage plenty of circumstances in which Ministers might decide that they do not wish to have a British citizen repatriated to this country because of the threat he poses to this country's security. That seems to me much more likely than objecting to the transfer of someone out of this country. After all, the whole problem about posing a threat to national security is that it is not something the Government are prepared to stand up in court and prove. As the noble Lord knows from the position in Northern Ireland, this will be information from informers, and so on, which for one reason or another will not stand up in court or which the Government are not prepared to reveal in court.

One would have to be very naive to assume that the Government would not use such circumstances to refuse to have people brought hack to this country. In those circumstances, it could well be giving them the sort of power over a person's life that I have described. That is why I think this is a very important case in which the reasons, if they are not concerned with national security, must be produced in writing so that a person can contest them in court.

Lord Elton

At the risk of wearying your Lordships, I would just say that the debate we have been listening to must have put a number of ideas into the mind of the mover of this amendment, one of which emerged fairly late on: that we are in the habit of discussing the conditions of those on "outward tickets" and those on "inward tickets" as if the cases were the same. What the noble Lord, Lord Melchett, has said has made it clear that they are not. It seems to me that the noble Lord, Lord Donaldson, may wish to consider this further. Your Lordships know I always reflect on everything that is said between Committee and Report so far as I can, and that is probably where this ought to be left for the moment.

Lord Mishcon

I intervene only because I believe—I shall be reprimanded if I am wrong—that we are going a little astray. And, for once, I believe that the noble Lord the Minister is responsible for our going a little astray; and it is not like him at all. It looks as though the debate is taking place upon this amendment with the Minister concentrating not on those who may be transferred into this country but on those who may be transferred out of it. I would ask him to look at the clause to which this amendment refers. It is subsection (2) on page 2 and it provides specifically for the issue or non-issue of a warrant, providing for the transfer of any person into the United Kingdom". Therefore, with great respect, when he carries the debate to cover those who are transferred out of the United Kingdom, he is not as consistent as he always is, either with his own text or with that of the Bill. If I may concentrate, therefore, on what the amendment intends—and it is transferring into the United Kingdom—we are quite obviously considering the case of a British subject who may be languishing in a gaol and it is not just a question of the term of the imprisonment but of the conditions of the imprisonment which are so often such as one would want to rescue him from.

Some civil servant recommends—and it may be that a very busy Minister may not have time to consider all the facts leading to the recommendation—in regard to a British subject languishing abroad that a warrant should not be issued for his transfer into the United Kingdom. If that occurs, quite obviously a grave injustice can be done. There is no right of redress at all and no right to make representations which are of any moment at all, because the prisoner does not even know the cause of the refusal and therefore what he ought to be concentrating on in regard to his representations.

In exactly the same way as my noble friend Lord Melchett said, there ought to be an exception for the rare case of public interest, if I may put it that way, because that is a wider term than "national security". I would not even mind saying that where the Minister or the Secretary of State certifies that a matter of public interest is involved, the reason need not be disclosed. I should be prepared to leave it at that. I know that is not the amendment which is before us at the moment but I am trying to get the principle clear at this stage. Then one would say immediately that reasons must be given so that the prisoner can correct what may be a misapprehension.

For example, it may very well be that at the Home Office somebody has confused this man with somebody else or has looked up the records and, in finding the name "John Smith", has in fact found two John Smiths and then said, "We don't want this man back here: look at that horrible sexual crime he committed some years ago." Or there may be a suggestion that John Smith is connected in some way with bank robbers or things of that kind, whereas they have got hold of the wrong person. John Smith could make his position clear if the reason for refusal were given, and there is nothing in the national interest which is disturbed by talking about a previous conviction and revealing that is the reason for refusal, or that he broke out of our jail and we would not want him to break out of jail again.

These are matters of sheer justice, and where you have not got a court of appeal and where you are anxious to go away from courts as much as you possibly can—that is recognised—I submit that you must act with justice. I repeat that we are dealing in this paragraph, as I see it—I stand to be corrected—purely with people to be transferred into our jurisdiction.

Lord Gifford

As I understand the amendment, it is contemplating the introduction of a new subsection which will fit between (2) and (3) of the Bill as it stands. The amendment refers us back to a consent of the Secretary of State pursuant to "Section 4(1)(b) below ". It does not talk in terms of consent but about the agreement of the Secretary of State and the appropriate authority of the other territory. It may be that. if the spirit of this amendment finally became incorporated, the word "consent" would not be quite appropriate. But clearly what is intended is to cover all agreements made by the Secretary of State and they, under subsection (1), cover—and I say it with great respect and deference to my noble friend Lord Mishcon—transfers into and out of the United Kingdom.

Having, I hope, started on the right basis, may I just support the spirit behind this amendment, whether it applies to transfers in or transfers out, or both? I ask noble Lords, and particularly the Minister, to bear in mind the predicament of the prisoner in whose case a transfer has been requested and who learns, either by direct communication or by the silence of the authorities, that nothing will be done in his case. The effect that that has on somebody who believes, rightly or wrongly, that he ought to be transferred can be quite cataclysmic. People in prison, above all, need to know the reasons why rights or privileges to which they believe they are entitled are not being afforded, and I thoroughly endorse the words of my noble friend Lord Mishcon when he talked about people who may want to supply further information to get round an objection which otherwise might be made. So I hope that a balance can be struck and that reasons can be given, even though in one or two fanciful cases, there may be reasons why the Secretary of State might not want to give them.

Lord Avebury

May I—

Lord Mishcon

I only want to correct myself, if I may. It is my normal habit, as it is with all your Lordships, to confess immediately when I find I am wrong, and I do that. I had read subsection (2)(b) instead of subsection (1)(a) and I am most grateful to my noble friend for pointing it out. It goes both ways and I apologise for wasting the time of the Committee with a bad point.

Lord Elton

On the contrary, it had the very salutary effect of making me examine very carefully my own reasoning, which is not a bad thing to do. But I think that the noble Lord is right in his retraction. Perhaps it would accelerate matters if I said that the number of occasions when an inward transfer would be refused seems to me to be extremely small. It really is quite possible that there might be no objection to conceding this principle on inward transfers. The not altogether fanciful illustration which I gave revealed a principle which it is important to protect on outward transfers.

It seems to me that some of your Lordships regard the direction as immaterial to the importance of the amendment. I doubt whether I can satisfy them. But those who feel that they are concerned particularly about the inward transfer of prisoners may find that I am able to satisfy them at Report stage. But, without further thought, I could not undertake to bring forward what the noble Lord wants.

Lord Avebury

I only wanted to ask the noble Lord a very brief question about the outward-going prisoners. When he spoke about terrorists, I wondered whether—and it seemed to me possible from the way he expressed himself—the Minister was envisaging that the Secretary of State would refuse his consent to a transfer in the case of whole classes of persons convicted of certain types of offence. I do not know whether or not I was right in that. But, obviously, in the case of a security risk you could not send a prisoner back to the country from which he was sent as a spy to the United Kingdom. I can understand that. It would be a very good reason for not repatriating him. But, in the case of the terrorist, I do not see that any such general rule applies, and it would be unfortunate if we decided that anybody convicted of an offence which would prove rather difficult to define—if the Minister were to make a general rule—was to be excluded from the benefit of the Bill.

Lord Elton

That was very far from my intention. My intention was to say that the giving of reasons might prejudice an operation against terrorism or drug smuggling, which I regard as as great an evil, if not a greater one. Where that might happen, I should have thought your Lordships would wish the Secretary of State to stay his hand. As to categories of prisoner, I have said nothing and neither does the Bill.

Baroness Macleod of Borve

May I ask my noble friend this question? It has occurred to me that we are talking about the Secretary of State taking the initiative. Could it be that the prisoner himself—I am asking for guidance on this, because it is important —could ask to be transferred and put his reasons to the Secretary of State? I cannot find it in the Bill, but presumably it is there.

Lord Elton

The first circumstance, the sine qua non, is an agreement between the governments. The transfer has to take place under that umbrella. Once that umbrella is established, it is my understanding that anybody can take advantage of it, and the initiative can be taken by the prisoner, by the foreign government or by the British Government.

Lord Donaldson of Kingsbridge

We have had a useful discussion. I shall in due course withdraw this amendment, but I shall certainly come back on Report. We have had a clue as to the way in which we ought to go, which we shall have to examine very carefully. It may be that we should treat inward and outward cases differently. I am not quite convinced of this. But I should like to look at it very carefully and I think that I should like to put down an amendment in due course on Report, on which I shall probably want to divide the House if we cannot get satisfaction, because this is an absolutely vital point. But, at the moment, I am very happy, as the noble Lord suggested, to take this away and look at it and see what we can do at Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.57 p.m.

Lord Donaldson of Kingsbridge moved Amendment No. 14:

Page 2, line 13, at end insert— ("() for the avoidance of doubt the provisions in subsection (1) above governing the issue of a warrant shall apply to such warrant for the transfer for the purpose of temporary return of the prisoner as is referred to in section 4(1) below.").

The noble Lord said: We should be able to deal with this amendment more quickly. It is a probing amendment and it is to satisfy us that the provisions of Clause 1(1) include the prisoner's consent to all transfers under, for example, Clause 4(1)(b) and he does not have to be asked again for a special consent. It is simply that we require to be assured that this is the case. If it is the case, I have no more to say. If it is not the case, I shall have to go away and think about it. I beg to move.

Lord Elton

The doubt to which the noble Lord's amendment refers is, perhaps, more easily avoided than most, though there are always doubts in studying the drafting of Bills. There is only one clause in the Bill which provides for the issue of a warrant and that is Clause 1. All references in the Bill to warrants are references to warrants in Clause 1, because they are references to warrants "under this Act". It follows that they are references to warrants issued under Clause 1. Clause 4 does not create a power to issue a warrant. That power is created only under Clause 1. What it does do is to provide for a warrant for an inward transfer and a warrant for an outward transfer or vice versa to be combined in a single document where the transfer is for temporary purposes only. Such transfers will be necessary to enable appeals to be heard in, for instance, long running cases. I hope that that clears up the matter.

Lord Donaldson of Kingsbridge

I think that it does. I should like to read what the noble Lord has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Avebury moved Amendment No. 15: Page 2, line 14, after ("(3)") insert ("(a)")

The noble Lord said: I think that it will be for the convenience of the Committee if we take Amendment No. 18 with this one.

Amendment No. 18: Page 2, line 21, at end insert— ("(b) For the purpose of paragraph (a) 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 Bill envisages that the detained prisoner has to give his consent to the transfer, as we have already discussed, and as the treaty itself provides. It provides further that the consent may be withdrawn, but only up to the time when the warrant is issued by the Secretary of State in respect of the transfer. What we are saying in this amendment, and in No. 18, is that it would not be fair to make the right to withdrawal of consent by a British prisoner overseas dependent on the prison and the postal authorities there. We envisage that it might take a period of several weeks for the withdrawal of consent to get from, for example, the civil rights centre in Riyadh or the Liberdad prison—so Orwellian a name—in Montevideo to Queen Anne's Gate. It would be wrong if the prisoner were debarred from withdrawing his consent by reason of the delays imposed by the administrative machinery and the postal authorities between those places and London. It may be fettering the imagination to postulate that any person in one of those institutions might prefer it to the delightful régime which the Minister provides in Gartree or Albany, but if that person does have such a bizarre preference there is no reason why he should not be indulged. Clause 6 allows for the revocation of a warrant, and in those circumstances it would be appropriate if that power could be exercised, seldom though it might be wanted. I beg to move.

Lord Elton

I hope I can reassure the noble Lord, Lord Avebury. His concern is that the Secretary of State, by issuing a warrant, might cause a prisoner to be whisked back to his welcoming but vindictive land because he was unaware that the prisoner had changed his heart on the matter. Subsection (3) of Clause 1 does not refer to the timing of notification of the withdrawal of consent to the Secretary of State. The validity of the warrant will therefore depend, among other things, upon the chronology of events. If the prisoner withdrew his consent at a point in time which preceded the issue of the Secretary of State's warrant, the warrant would, as a matter of law, be invalid, because one of the requirements for the issue of the warrant would not have been met. Even if notification of the 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, provided that it could be shown that consent was withdrawn before the time that the warrant was issued.

Lord Avebury

I am most grateful to the noble Lord for that clarification. I shall assume that everybody else will interpret the Bill as he does and that there is no doubt, as there was in the minds of those who advised us, about the matter being entirely clear. However, I am very happy to accept the assurances which the noble Lord has given to the Committee, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 16 to 18 not moved.]

The Deputy Chairman of Committees (The Earl of Listowel)

I should point out to the Committee that if Amendment No. 19 is agreed to, I cannot call Amendments Nos. 20 to 23.

[Amendment No. 19 not moved.]

Lord Mishcon moved Amendment No. 20: Page 2, line 23, after ("required") insert ("against his will").

The noble Lord said: It will be for the convenience of the Committee if we take Amendments Nos. 20 to 24 together.

Amendment No. 21: Page 2, line 23, after ("in") insert ("or confined to").

Amendment No. 22: Page 2, line 24, leave out ("institution") and insert ("place").

Amendment No. 23: Page 2, line 24, leave out ("either").

Amendment No. 24: Page 2, line 33, leave out subsection (5).

I refer the Committee to the present reading of subsection (4). The Committee will find that it relates to the person to whom the Bill applies. That person is somebody who is required to be detained in a prison, a hospital or any other institution, (a) by virtue of an order made in the course of the exercise by a court or tribunal in the United Kingdom, or in any country or territory outside the British Islands, of its criminal jurisdiction.

I do not need to go any further in order to make clear the principle of this amendment. It has been said more than once that this is a humanitarian measure. Therefore we have to be very careful not to except from these provisions people whom we ought to have in mind.

I have made clear to your Lordships that the present reading of the Bill is limited to criminal jurisdiction by tribunals and courts. I am thinking of British subjects, those intimately connected with this country, who are in places of detention abroad and who may not at present come within the compass of subsection (4). In some countries, prison sentences can be imposed for ordinary civil matters—indeed, for civil debts—and one is limited at the moment to the criminal jurisdiction of courts. Secondly, in some countries an individual has the right to imprison. It would necessarily, therefore, be a court or a tribunal. Thirdly, some countries have a code which we would call a penal code but which they put forward as a matter of religious, not criminal law. We must have very closely in mind in relation to British subjects those countries which exercise religious jurisdiction under which, as I have already said, terms of imprisonment can be invoked without there being anything which relates to criminal law jurisdiction. It is with that in mind that this amendment is moved.

Lord Elton

The effect of these amendments would be to broaden the scope of the Bill—I am not trying to make a drafting point to the noble Lord, nor am I certain whether he intends this—to embrace anybody who was detained by anybody else, for whatever reason. I appreciate that the noble Lord's intention is to embrace persons imprisoned for civil debt and people imprisoned under penal codes based on religious laws. But the amendment goes further. I take it that that is not his intention?

Lord Mishcon

The noble Lord is quite right.

Lord Elton

We have introduced this legislation because there is clearly a readiness now among many countries in the world to enter into arrangements for the repatriation of persons serving custodial sentences as a result of having been convicted of criminal offences. All international discussions of this issue have been about people convicted of criminal offences. We have no information to suggest that any country would be willing to contemplate the repatriation of persons imprisoned for civil debt, for instance. Even if one country was willing, we, and I suspect most other countries, would obviously have great difficulty in agreeing to such arrangements because of the added problems of recovering a debt once the person had left the country. During the negotiations on the Council of Europe Convention, several countries made it quite clear that they could not even contemplate agreeing to the transfer of prisoners against whom fines or other financial debts were outstanding. I hope noble Lords understand, as they did earlier, that in this legislation we cannot go outside the bounds of the convention.

On debt, therefore, I am afraid that there is nothing we can do. On religion, on the other hand, I am glad to say that it seems to us that there is nothing which needs to be done. The reason I say that is this: noble Lords are concerned about countries where the penal code is based on religious law. At least I take it that that is the case. It is our view that there would be no difficulty about regarding such codes as criminal jurisdictions for the purposes of the Bill. They would therefore fall within the terms of Clause 1(4) and the persons detained under them after conviction would be covered by the provisions of the Bill.

To recapitulate, we are not empowered by the convention, and would see great difficulties in doing so anyway, to apply these arrangements to people imprisoned for debt or for the non-payment of fines. But on criminal matters we see no difficulties because that is the intention of the convention and the Bill, and our strong advice is that for those purposes the fact that jurisdiction is based on religious rather than on what we would think of as legalistic or juristic considerations would in no way put that jurisdiction outside the application of the Bill.

Lord Melchett

That assurance is helpful, although it would be more helpful if the Minister could tell us where in the Bill is his authority for saying what he has just said. A number of us looking at the Bill thought that it was restricted to people convicted of criminal offences by a court or tribunal. There was a worry that a country might announce that it had no criminal code or crime which people could transgress against, because it had adopted some other system, and that the Government might be precluded by the terms of the Bill from entering into a transfer arrangement with such a country.

While I am on my feet, may I take up with the Minister a point which he has made twice: that the Bill cannot go beyond the Council of Europe convention. That, surely, is incorrect. What I hope the Minister means is that we must not put anything into the Bill which will prevent Her Majesty's Government from ratifying or implementing the Council of Europe convention. I thought that the Government's whole case for the Bill was based on the idea that we must allow in this Bill for bilateral treaties and other conventions which do go beyond the Council of Europe convention and which incorporate different provisions and allow for different arrangements we need to make.

As I understand it, the argument is for maximum flexiblity in this Bill, and this amendment would import that much more flexibility. After all, the Minister says that other countries cannot at the moment contemplate transferring prisoners who are in prison for civil debt. But might that not be a possibility in the future? Is it a possibility that the Government really want to rule out completely in terms of legislation, when they are prepared to incorporate flexibility in so many other provisions?

Lord Elton

To take the noble Lord's second point first, he is absolutely right—my concern is that we should do nothing that will inhibit the operation of the convention. Indeed, a doubt flickered in my mind when I uttered those words a second time. I thought that I might merely confuse if I sought to qualify them—but the noble Lord has just done that for me, and I am grateful.

On the noble Lord's first point, the Bill does not define what is a criminal jurisdiction; I understand that would be a matter for the courts. The advice I have is that there would be no doubt in the mind of the court that the kind of code of conduct and punishment to which the noble Lord referred is in effect a criminal jurisdiction, whatever the people in whose country it is applied may choose to call it.

Lord Mishcon

I have listened with the greatest care to what the noble Lord the Minister has said, but I am in a state of some little confusion in respect of his remarks on religious institutions imposing a term of imprisonment as a result of religious law. I thought that I caught the Minister correctly in his very recent observation when he said that it would be a matter for interpretation by the courts. If we were thinking in terms of the English courts, I would be perfectly happy—but all the examples anyone can think of relate to British subjects abroad who would not be receiving the benefit of a ruling by an English court, and nor would the English court's ruling avail them.

In those circumstances, while I should very much like to consider with my noble friends with whose names this amendment is associated our position before we reach Report stage, having regard to the Minister's reply—and although I personally can see some weight in what he said about civil debt—what would comfort me very much indeed is if the Minister can at least say that it will be an undertaking of the Government that in any agreements which they reach with countries abroad it will be made perfectly clear that our understanding and their understanding of a criminal jurisdiction encompass religious jurisdiction where imprisonment might result.

If we can have an undertaking that such will be made abundantly clear in any agreements ever entered into with any of the countries, that would at least give us some solace on this side, even if it is not made clear in the Bill. But to say that our courts might give a certain interpretation in regard to criminal jurisdiction completely overlooks what other courts in other countries might decide.

Lord Elton

The noble Lord will recognise that neither I nor Her Majesty's Government can do anything to bind a foreign government. When I refer to the courts, I mean the courts in their supervision of the conduct of our own Government and our own Home Secretary. Our own Home Secretary would be perfectly able to operate all the apparatus of this Bill—or Act, as it will be—in regard to a country operating what the noble Lord called a religious jurisdiction, free of the worry that a British court might find him ultra vires.

What no British court can do is to pronounce upon the vires of another government in another country. Plainly, I cannot undertake to specify what will be in an agreement with another country for precisely the same reason. I cannot bind foreign countries to agree that a specific area in which they seek to control the behaviour of their citizens is or is not relevant under the Act. All I can do is say that Her Majesty's Government will seek to find an agreement with other countries which gives the maximum benefit to the maximum number of British citizens who may wish later to avail themselves of the operation of the Act.

That implies that we shall do everything that we can, where it might prove necessary, to secure an explicit undertaking from the Government of a foreign country that they do indeed regard certain areas of conduct and punishment as being within the operation of their mirror of our Act for the purposes of either the bilateral arrangements we have or for the operation of the convention.

I hope that the noble Lord, Lord Mishcon, follows me. I am trying to say, "Yes" to everything the noble Lord has asked me so far as it is possible. But I cannot say, "Yes" in respect of what other countries will determine in their courts as to their law.

Lord Mishcon

It was precisely because of that difficulty that I did not want the Committee, any more than the Minister would want the Committee, to be under the impression from the Minister's remarks that we can dismiss this amendment because, without any doubt at all, if ever we entered into an agreement with another country it would be obvious—and they would have to agree to this—that, because of the wording of this Bill, religious convictions and sentences came under the banner of criminal jurisdiction.

It is valuable that the Minister has taken on board that at all times when negotiating an agreement with a foreign country it should be our aim to have religious matters so covered. On that basis, and so that I may at least consider the position with my noble friends who have associated themselves with this amendment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 21 to 25 not moved.]

5.18 p.m.

Lord Donaldson of Kingsbridge moved Amendment No. 26:

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 (5)(c) above prior to his giving his consent to the transfer, or
48
2. (b) the alleged involvement of the prisoner in any offence with which he is charged after his transfer was not known to the Secretary of State prior to the said transfer.

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

The noble Lord said: This, again, is rather a simple amendment. I shall probably be told that it is not necessary; still, I should like to be reassured on that point. We are trying to confirm the principle which the noble Lord himself laid down at Second Reading, when he said that it will be the prisoner who will be the ultimate judge. In other words, he said that the most important of the three decisions to be made is ultimately that of the prisoner. Before he can make up his mind, he must be sure that he understands the possibility of further charges when and if he is brought home.

This amendment suggests, in the simplest possible way, that a new subsection (5A) be inserted at the end of line 40 on page 2 of the Bill which simply writes this down. The exceptions are (a) and (b), which state that no charges will be brought in the United Kingdom unless:

1. "(a) notice of liability to be so charged has been given to the prisoner pursuant to subsection (5)(c) … or
2. (b) the alleged involvement of the prisoner in any offence with which he is charged after his transfer was not known to the Secretary of State".

In other words, anything that is known to the Secretary of State in the way of a charge or a further charge when he gets back must be disclosed to the prisoner. The new subsection (5B) maintains the right for civil cases to be brought against him without exception. He is, therefore, fully aware of that.

It is obviously very important that if a man is an habitual criminal and has committed an offence in a foreign country it is quite likely that there will be other charges which he would like to have taken into consideration at some stage or other. He must know what they are and must decide whether to come back and face them rather than stay where he is, where the charges cannot be brought against him. I do not think I can say anything more. It is a fairly clear issue. It is very desirable to put down in writing the obligation that this information should be given to the prisoner so that he can make up his mind properly. I beg to move.

Lord Elton

This amendment follows the lines of the speciality rule in extradition. I agree there is a need for such a rule in extradition arrangements where a country has asked for the extradition of a person to stand trial on specific charges, but the arrangements with which we are now concerned are very different. The prisoner will be seeking repatriation to this country for his own benefit, and that of his family, and his transfer will depend upon his consent. The prisoner himself should be well aware of any charges that could be brought against him for any past activities in this country. Therefore, there is no justification for placing an obligation on the Secretary of State to inform him of any outstanding charges. If any such charges did come to the notice of the Secretary of State when considering a repatriation request, I should add, in all fairness, that the prisoner would be informed. But to say that is not the same as to accept that there should be an obligation to notify the prisoner of such charges or of such liability to be charged.

Lord Donaldson of Kingsbridge

Is there the slightest difference in those two things? It seems to me that there is not. If anything which comes to the knowledge of the Secretary of State would be notified to the prisoner, what is the difference from saying that he has a duty to do so?

Lord Elton

I am anxious not to split hairs with the noble Lord, and I am always in danger of doing that. I think I should take advice on this, which I shall do. The principal difficulty may well prove to be what is meant in the Bill by the term "the Secretary of State". It may be that the Secretary of State is technically seized of information which is, for example, in the hands of a junior consular official or some outstation of the immigration department. It could be that the information does not come to hand in time to be of use. That would then put the Secretary of State in breach of the Act if the prisoner came back to this country and was charged, and it could be proved that the information was in the system but not in the head of my right honourable friend who has responsibility for these matters. I can see that the noble Lord is not much more satisfied with what I am saying than I am myself. I will look at this further.

Baroness Hornsby-Smith

Although I wholly agree with the principle of the amendment tabled by the noble Lord, Lord Donaldson of Kingsbridge, which is based on British judgment and logic, I think we have to appreciate that so many times in other countries people are taken to prison and for months are not charged. They are sometimes held in appalling conditions and their one desire is to get home. We have evidence that time and again the Foreign Office has asked what charges have been laid against a person but has been given a negative reply. In those circumstances, would it not militate against a man who is desperate to get out of the appalling conditions in which he finds himself and to get home at any price, if necessary throwing himself on the mercy of British justice and not that of the country in which he is being held?

Lord Donaldson of Kingsbridge

If I may reply to that across the Floor, this amendment is entirely concerned with charges which the prisoner will meet when he gets back to this country. It has nothing to do with the foreign country. If the foreign country has charges against him, presumably it will not agree to his transfer. It is simply the case of a man who has committed crimes in this country, and knows that he has because he has got away with some of them, and where other charges may be pending. He will want to know what will happen when he gets to this country and how many charges remain. In so far as the Secretary of State knows that, the noble Lord has already said that the Secretary of State will have a normal duty to inform the prisoner. In so far as he does not, the amendment, in (5A)(b), relieves him of any duty; so I think I am quite happy about that. I hope that the noble Lord will accept the amendment. We seem to be agreeing in such a tremendous way that something ought to materialise in the end.

Lord Melchett

It is worth stressing that many prisoners, in having to decide on whether to accept a transfer, will have some very difficult choices to make. Although they may find themselves in much better conditions if they return here to serve the remainder of their sentence, they will also return to face a sentence of a length which they can be fairly certain of, although I agree there are some uncertainties about parole. Nevertheless, they will have a fairly clear idea of how long they will spend in prison. However, in many other countries where people will be serving sentences there are irregular amnesties and people may be let out on the whim of an individual, and so on, so they will have to gamble, as it were, on the likelihood of getting a fairly early release from very bad conditions against serving a slightly longer sentence in better conditions. Obviously one of the factors that will be important to them is to know not only whether they will, on return, have to serve the remainder of the sentence for the offence of which they have been convicted abroad but also whether they will face further, perhaps serious, charges. These may be charges connected with the offence of which they have been convicted abroad and for which they may feel they have already been sufficiently sentenced. There are a number of situations one can see in which it would be important for the prisoner to have access to such information.

Like the noble Lord, Lord Donaldson, I hope that the Government will be able to see some way of meeting this amendment. I accept the need to protect the Secretary of State—and the amendment was drafted with this very much in mind—from simply being in ignorance of some charges, resulting in the police being unable to proceed. That was not the intention of the amendment as drafted. It may not completely and effectively meet that point, but I do not believe that it would be beyond the wit of the advisers of the noble Lord to draft an amendment which would meet that problem.

Lord Elton

I will read with care what the noble Lord, Lord Melchett, has said. I think that what he said went further than the amendment. The amendment is curtailed by (5A)(b). What the noble Lord seemed to want is for the Home Secretary to have to inquire of every police force in the United Kingdom whether the prisoner has a criminal record or is wanted for an unsolved crime, or whatever. That is something to which I could not commit him because it would be both extensive and expensive. I said some time ago that I would be looking at what has been said. I think I would be well advised to say nothing more and to do just that.

Lord Donaldson of Kingsbridge

On that I am grateful and quite content to withdraw the amendment. I hope that the near agreement—we seem to be very close—will produce something on which we can entirely agree at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

5.30 p.m.

Clause 2 [Tranfers out of the United Kingdom]:

[Amendments Nos. 27 to 38 not moved.]

On Question, Whether Clause 2 shall stand part of the Bill?

Lord Mishcon

I am hoping that the noble Lord the Minister will be good enough at least to listen to the point that I wish to make on the Question, Whether Clause 2 shall stand part of the Bill? It is of some concern to the National Association for Mental Health. I shall well understand it if he cannot give me a reply now but I would ask him whether he will, with his usual courtesy, write to me so that I can, in turn, assure the association that the matter has been given proper attention.

The point was raised on Second Reading by my noble friend Lord Ennals. He mentioned Section 86 of the Mental Health Act 1983, where there was already a power vested in the Secretary of State to transfer abroad alien patients—I believe that is the term used in the section—including those under a hospital order. But before the Secretary of State could do that he had to have the approval of the Mental Health Review Tribunal.

In exercising the power that will be given under this Bill in regard to those who are so afflicted, the Secretary of State does not have to obtain the consent of the patient. The concern is expressed in this way. Clarification is sought as to the type of advice the Home Secretary would require before exercising his powers under this Bill. Will independent advice as to the patient's current needs and state of health, of exactly the same sort as that which would be provided by the tribunal under the Mental Health Act 1983, be taken into consideration? The concern is obviously that the mental patient should not suffer as a result of the transfer. The evidence as to the suffering could be obtained only from some medical source. The anxiety relates to whether that guidance will be sought—and I am sure that it will—and the nature of it. Perhaps an assurance can be given now. If, however, I have caught the Minister unaware—and I have not given him any notice of this point—I shall well understand it and would appreciate a letter from him.

Lord Elton

I am most grateful to the noble Lord for bringing to my attention this concern, of which I was not, in fact, aware. He will recall that under his Amendment No. 7 we agreed that people who suffered from this sort of mental disability would need to be spoken for by somebody who did not so suffer and who could speak in their interest. As far as I am aware, that is the extent of the protection within the Bill.

The noble Lord has asked for an assurance that certain steps, which on the face of them would appear to be perfectly reasonable, should be undertaken. I think that I ought in common prudence to examine the question and take advice on it. It may be that something more, less or slightly different from what the noble Lord wants might be required; but I see that there is an anxiety there which should be addressed.

Clause 2 agreed to.

Clause 3 [Transfer into the United Kingdom]:

[Amendments Nos. 39 to 43 not moved.]

The Deputy Chairman of Committees (Lord Nugent of Guildford)

The Question is, Whether Clause 3 shall stand part of the Bill?

Lord Mishcon

Again, I should like to raise a point on the Question, Whether the clause shall stand part of the Bill? Clause 3 deals with transfers out of the United Kingdom. The noble Lord the Minister may remember the anxiety expressed in some quarters about what would happen if a terrorist was convicted and sentenced for terrorism in this country and we had entered into an agreement with a country which might favour the type of terrorism for which that person was responsible or the so-called cause of terrorism that that person advocated. The fear was that a sentence might prove absolutely nugatory because, on a transfer abroad, for all we know and in spite of provisions in the agreement there might be almost nursing-home treatment, if not a hero's welcome.

We have gone a long way in our legislation in regard to terrorism—some of which your Lordships' House is now considering—to make this a very serious matter. Before we leave Clause 3, I should like the noble Lord's assurance that what he said on Second Reading about the Secretary of State's attitude on matters of that kind can be taken in a very concrete form by this Committee. Otherwise, we might have to consider at Report stage putting in an exception in the case of convictions for terrorism. This is a matter that must be very present in our minds at the moment. I say that with the deepest of regret. But we should be lacking in our duty if we pass Clause 3 without having some kind of statement on this matter from the Secretary of State via the Minister.

Lord Donaldson of Kingsbridge

Before the Minister replies, may I point out that we have an amendment in the name of the noble Lord, Lord Mishcon, on Clause 3 which I believe we should take before we discuss whether the clause shall stand part of the Bill?

The Deputy Chairman of Committees

I thank the noble Lord, Lord Donaldson of Kingsbridge.

Lord Mishcon moved Amendment No. 44:

Page 5, line 7, leave out subsection (2) and insert— ("(2) Unless prohibited by the international arrangement in accordance with which the prisoner is transferred, a provision contained in a warrant by virtue of subsection (1)(c) above—

1. (a) shall be no more severe than could have been contained in an order made as mentioned in paragraph (a) or, as the case may be, paragraph (b) of subsection (2) above in respect of the type of conduct which resulted in the detention giving rise to the transfer; and
2. (b) shall make full allowance for the period already spent in custody by the prisoner (including time so spent prior to and during his trial) in respect of the conduct which resulted in the detention giving rise to transfer.")

The noble Lord said: I am always obliged to the noble Lord, Lord Donaldson of Kingsbridge, for his interventions. I sometimes find them helpful, but not always.

Lord Donaldson of Kingsbridge

It is always a pleasure for me.

Lord Mishcon

It is absolutely true that I have down a further amendment to Clause 3, and it is more suitable that I move it before raising the other matter. We have at least given the noble Lord the Minister an opportunity to consider what I have said when we come to consider whether Clause 3 shall stand part of the Bill. I hope not to repeat it word for word.

I do not know whether your Lordships will remember, but I can well recollect an amused smile on the Minister's face as on Second Reading we came to Clause 3(2) of the Bill. I must confess that if ever I wanted to choose, out of fairly contemporary legislation, an example of words that are almost impossible to comprehend I should have a go at Clause 3(2). It reads: Subject to section 4(2) and (3) below, a provision shall not be contained by virtue of subsection (1) (c) above in a warrant under this Act unless it is a provision for or with respect to the detention of a person in a prison, a hospital or any other institution which, at the time the warrant is issued, may be contained in an order made—

1. (a) 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. (b) otherwise than by a court but for the purpose of giving effect to an order made as mentioned in paragraph (a) above".

The Opposition are prepared to award a prize—I shall not indicate what—to any noble Lord on the Government side of the Committee, including those on the Front Bench, who can take your Lordships through that and explain exactly what it means in five minutes flat! That is a bit of an unfair point for me to make. When the noble Lord the Minister came across this provision, he said: That is a passage in the Bill which I find difficult to follow, and I hope that those words are helpful".—(Official Report, 21/12/83; col. 754.] "Those words" were the preceding words. I have read them and I understand them, which is something that I cannot say about the provision, but I must confess that I do not really find them very helpful.

I looked at the Notes on Clauses to this Bill, which, most courteously, have been supplied and which are very helpful. They indicate—and this is very serious—that this clause empowers the Secretary of State to imprison someone for a time in excess of the United Kingdom maximum if he finds it necessary. That is an extraordinary power to give. I think your Lordships' Committee is satisfied that one must unfortunately look with some amount of consent at the position that we will imprison here somebody who has been imprisoned abroad for an offence which is not known to our own criminal law. In other words, we have got to swallow the fact—because it may be for the good of a British subject—that if you are sentenced in Saudi Arabia, for example, to a long term of imprisonment because you have been found to be in possession of a bottle of whisky, if we had an agreement with Saudi Arabia, what we would have to do is precisely what is envisaged by this Bill and accept such a person into our prisons in order to finish that sentence. Some of us, I remember, debated the matter on Second Reading when we were looking at the possible agreement with South Africa and what that might mean. I can remember the noble Lord, Lord Melchett, and the noble Lord the Minister convincing me against what I had said from this Front Bench, that this would be very probably in the interests of the person concerned, and in those circumstances we would have to stomach it.

This I can swallow. If there is an international agreement which specifies that the balance of the sentence has to be served in accordance with the sentence of that other country, and that sentence happens to exceed the maximum laid down in our criminal law, your Lordships' Committee will have to swallow that one. But what I cannot swallow—and I hope the Committee will not swallow—is where that is not in the agreement, there is some power vested in the Secretary of State to increase the sentence or to impose a sentence in this country which exceeds the maximum sentence in this country which is imposed for that particular offence. If my interpretation—not of this subsection, which I cannot interpret for your Lordships—of the Notes on Clauses is right, then the first part of this amendment is quite obviously necessary.

It may very well be that I should have split these amendments into two; but if I may turn to paragraph (b) of this amendment, this merely makes statutory, puts into the Bill, the statement of intent which I have seen in the explanatory paragraph 2 of the schedule in the Notes on Clauses. It is vital because of the statement in the Bill and in the explanatory notes that the starting date for calculation of remission, and thus the earliest date of release, will be the date of delivery of the prisoner to a prison or other institution in the United Kingdom. I am making the full allowance for the time spent abroad. The Secretary of State should surely be mindful of the fact that under United Kingdom law every day actually served effectively counts as a day and a half as a diminution of the sentence imposed by reason of the arrangements for remission. In giving full effect to time spent abroad, obviously the Secretary of State should make similar allowance.

I believe that I can best bring this home to your Lordships by giving an example. Say that a person had been sentenced to 12 years abroad and is to be transferred to the United Kingdom after serving four years abroad. The calculation by the Secretary of State for the purposes of the warrant should surely be as follows: take the total sentence of 12 years; deduct the time already served—four years—you get a balance remaining to be served of eight years. Give the credit for remission and time served abroad—two years—take the two years from the eight years and you get the balance to be served in the United Kingdom, which is six years.

The net result of that would be to put such a prisoner in exactly the same position as a prisoner sentenced in the United Kingdom. Unless full allowance is made in this way, a prisoner could serve longer than is justifiable. The prisoner would have served four years abroad and have to serve a further five and a third years in the United Kingdom before becoming eligible for final release, which would mean a total of nine and a third years of a 12 year sentence instead of the eight year period which would be just.

The Home Office has stated that the system of release on parole will take care of such inequities and disparities. We cannot accept that a prisoners' fate should be left to a further exercise of discretion, and one has to have in mind some of the recent pronouncements which have worried quite a few of us on the whole question of release on parole so far as Her Majesty's Government are concerned. Prisoners transferred to the United Kingdom will be dealt with by the domestic system of parole. Many of them would suffer unduly from restrictions on it, and their burden would then be double. I beg to move.

5.47 p.m.

Lord Donaldson of Kingsbridge

There is one thing which I think the noble Lord has not taken into account, which is that, in relation to by bilateral agreements, you have got to get the best bilateral agreement that you can, and if you are dealing, for example, with South Africa, I doubt very much whether they would agree that somebody who had committed what they call a racial crime and we call ordinary behaviour, should be released when they get here. Until you get a series of different bilateral agreements to consider, I do not think you ought to start laying down things in the Bill to prevent the Secretary of State taking advantage of such things. My own view is that this should be up to the prisoner to choose. Would he rather come here and serve a sentence under conditions he is aware of, which, in British law he would not be liable to, or would he rather go on serving it there? I think it is perfectly clear that he should be given that decision, and in most cases he would choose to come here to be decently treated.

Lord Mishcon

I said before that some interventions of my noble friend, Lord Donaldson, were most helpful. His previous one was, and this one quite obviously does not come within that description. I thought I had made it clear—and I apologise to your Lordships as well as to the noble Lord, Lord Donaldson, if I did not make it clear: it must be my fault—that if an international arrangement made it obligatory upon the United Kingdom and therefore the Secretary of State to impose a balance of a sentence which would exceed the maximum in this country if the offence had been committed here, I immediately conceded that the Secretary of State would have no alternative. My complaint was that that was not a limitation that was put upon the Secretary of State's power, and the bare fact would appear to be—if the explanatory notes are right—that, irrespective of the international agreement making him do this, he could do it himself.

Lord Avebury

The noble Lord, Lord Mishcon, has referred to the problem of remission. This is extremely important because prisoners will want to know exactly where they stand before deciding whether to take advantage of the transfer arrangements. As I understand it, the period which a prisoner has served in a country overseas, if it is a party to the convention, will be governed by the remission arrangements in that country. In other words, to take Lord Mishcon's question about the person who was sentenced to 12 years' imprisonment and has served four years' imprisonment in an overseas country, then he will not necessarily attract the additional one third towards the sentence which would be appropriate in the case of a sentence being served in the United Kingdom. As I understand it, it will depend entirely on what the remission arrangements are in France, Germany or wherever it is he happens to be serving his sentence. Then the balance of the sentence will have remission applied to it according to the United Kingdom rules once he has been transferred. Perhaps the Minister can correct me if that is wrong. I think that it is an important point that we should try to understand.

Similarly, if a person is transferred from the United Kingdom to a country overseas in the circumstances of the sentence which the noble Lord. Lord Mishcon, postulates—he has been given 12 years and has done four here—then he will attract another two years towards the completion of his sentence by reason of the remission arrangements that apply in the United Kingdom, and those would have to be enforced in the receiving country to which he goes if it is a party to the Council of Europe Convention. As I also understand it, it would be the intention of the Government to see that wherever possible the bilateral arrangements that we enter into with other countries follow the same pattern, though that may not be feasible in every case.

I think that what the noble Lord, Lord Mishcon, says is perfectly true. One would never have read into subsection (2) the meaning which is ascribed to it, according to his description, and it is absolutely vital that we try to redraft the clause in a way which will make clear its meaning and certainly bring out the points about both the maximum sentence and the applicability of remission arrangements as between one country and another.

Lord Elton

I entirely understand the difficulty which noble Lords have in unravelling the provisions of Clause 3(2). I greatly wish that they were clearer, and the dissatisfaction of Members of your Lordships' Committee with the obscurity of what we have found necessary to insert is noted. But whether in fact it will prove as easy to improve the drafting as one always thinks it will is quite another matter and I shall not give an undertaking on that.

However, having said that. I also perfectly understand the anxiety of noble Lords who succeed in unravelling the provisions of Clause 3(2) and find the breadth of discretion which they give to the Secretary of State in drawing up the terms of a sentence contained in the warrant. The warrant is the vehicle in which the translation of the sentence awarded by a foreign court into British custodial terms is conveyed, and noble Lords have noted that the Secretary of State is not restricted as to how he may achieve that translation or the length of sentence that may result. That is a difficulty to which we have addressed ourselves, and in view of your Lordships' concern we are prepared to address ourselves to it further, if your Lordships give us the opportunity to do so.

However, I must point out that, while we may be able to improve on what we have at present, I very much doubt whether we shall attain 100 per cent. of what your Lordships and indeed Her Majesty's Government would like to see in its place. There are two reasons for this. One is that some British people may well wish to be transferred home to serve sentences for acts of which they have been convicted which would not have constituted offences at all if they had been committed at home. The noble Lord, Lord Donaldson, has ably directed the Committee's attention to that point. Recently we have been discussing the applicability of the Bill to religious laws in foreign countries, and the Committee can well imagine the kind of thing that I mean. For that reason we cannot hope exactly to parallel the intention of subsection (2)(a) of the amendment.

We must also take care to remember that the transfers will not be automatic. The agreement of the foreign government will be required, and there is bound to be an element of negotiation involved. We must not create circumstances under which such a government would refuse to transfer on grounds of inadequacy of sentence, even if the aspiring transferee would have been quite happy to have settled for slightly more than would be normal in British jurisprudence in order that he might serve the sentence in a British, rather than a foreign, gaol. The noble Lord, Lord Donaldson, has addressed himself to that point, too.

I ought also to say, I think, that I cannot see a British Home Secretary deliberately and unnecessarily awarding sentences above those which British courts would award under any circumstances, except where it was imperative to get a British subject out of a foreign penal system. Nonetheless, if the noble Lord will stay his hand, we will try to see whether we cannot reduce the discretion to recognisable bounds and to something which the noble Lord, Lord Mishcon, could swallow (to use his words).

I should now like to turn to the second leg of the amendment. The noble Lord, Lord Avebury, is right in saying that the terms for remission will vary according to the individual country and the individual agreement. But having said that, we will also consider what guidance, if any, we can effectively put into the Bill on matters of remission.

Lord Mishcon

I am most grateful to the noble Lord the Minister for what he has said in regard principally to the first leg of the amendment. As I indicated, the two legs of the amendment should have been separated, and I apologise to the Committee for that. I shall wait with great interest to see what the Government put forward as a result of this amendment being tabled. In regard to the second leg of the amendment, I am again certainly grateful to the noble Lord for the consideration that he proposes to give to it. Therefore in that respect, too, I await what he has to say. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 45, 46 and 47 not moved.]

On Question, Whether Clause 3 shall stand part of the Bill?

5.56 p.m.

Lord Mishcon

I have been caught out, and rightly so, for having earlier made a speech that ought to be made at this stage. Having committed that sin, let me not commit the dual sin of repeating a speech and boring Members of your Lordships' Committee with it. I am sure that the noble Lord the Minister and the Members of the Committee listened to what I had to say earlier. As your Lordships will remember, it concerned the question of terrorists who are convicted and sentenced here and what may happen in the circumstances which I previously adumbrated.

The Deputy Chairman of Committees

The Question is that Clause 3 shall stand part of the Bill. As many as are of that opinion will say—

Lord Elton

Having been addressed twice, I think I ought to reply at least once. On the general question, I was careful to say earlier that we were not proposing to create categories of offence, but to look at each case on its merits. I shall read with very great care what the noble Lord has said because it concerns a matter of great interest to myself and the Government, and indeed to all your Lordships—the question of the advisability or otherwise of returning people to a hero's welcome for deeds which we believe to be a crime against humanity—and I should expect to be able to reply to the noble Lord in reassuring terms.

There is one point in that context that I should in any case like to put on the record at this stage. Prisoner transfer arrangements which the United Kingdom enters into under the proposed legislation will provide for the repatriation of individual prisoners under the conditions provided in the arrangements. So far as the United Kingdom is concerned, there is no question of these arrangements providing for the exchange of one prisoner for another. We must guard against the possibility that British nationals overseas might be unjustly arrested with a view to trading them for prisoners in the United Kingdom. British nationals could thus be put at risk if the United Kingdom were to contemplate exchanging prisoners. Therefore the British Government will accept the repatriation of individual prisoners only in accordance with the merits of each prisoner's case and the conditions provided in the relevant prisoner transfer arrangement with the country concerned.

That addresses a segment of the area of the noble Lord's concern, which, I recognise, goes wider. I should rather respond to it after reflection, if the noble Lord will be content in that regard, and I am sure that he can manufacture an opportunity for me to do so.

Lord Avebury

In answer to an earlier intervention of mine the Minister said that there was nothing in the Bill about the treatment of special categories of prisoner and that during the course of our proceedings he had said nothing about the singling out of special categories. But what he has now said in response to the noble Lord, Lord Mishcon, makes me feel a little anxious, because in regard to terrorists he said that we must guard against those individuals being treated as though they were heroes when they were welcomed back to their countries of origin. That is of course an argument which applies to terrorists in general and means that one does not examine a particular prisoner. One says to oneself that if anyone who has committed an offence that falls into this class is sent back home it is possible that when he lands in Dublin, or Dun Laoghaire, there will be a large reception committee to cheer him on as he goes to the Irish prison, and that therefore this would render it undesirable that anybody who is an Irish citizen and who has committed an offence of a particular kind should ever be repatriated to his country of origin. I think it is better that we should be clear exactly where we stand.

I hesitated to raise this point originally, but now that the Minister has mentioned it I think it is as well that we should know exactly where we stand. After all, as my noble friend Lord Donaldson of Kingsbridge pointed out, we do have quite a few people who are convicted of what are known as IRA types of offences in the prisons of Great Britain. Some consideration will have to be given as to whether those who were originally domiciled in the Republic of Ireland should be allowed to go back there. It has always been the policy of Her Majesty's Government—as the noble Lord the Minister will confirm—that we are not even prepared to allow them to go back to the Six Counties, let alone the Republic, even where there are very strong family ties in favour of them doing so, and possibly compassionate grounds. The noble Lord the Minister will remember one particular case where a prisoner's father was extremely ill and dying of cancer, and yet it was still not the policy of Her Majesty's Government to allow that person to go back and see his father before he died.

We shall have to address our minds to this. Are we to make a blanket rule which excludes these Irish prisoners in the United Kingdom from the possibility of benefiting under the terms of the Bill because of the danger that they might be received in the way that the noble Lord describes on their return to Ireland? Or do we consider the cases on their own merits, by disregarding the perception of the offences in the country of origin and the way in which the return of a particular individual on his repatriation, would be received? The two approaches are fundamentally contradictory. If you look at the man's offence and the terms of the Convention of the Transfer of Sentenced Persons, you reach one conclusion. If you look at the PR effect, if you like, of the person's arrival back in the country of origin, then you may reach quite another. That is a consideration which does not find its way into the Bill. I hope, on reflection, that the noble Lord the Minister will exclude it from the consideration of cases on their own merits which he spoke about almost in the same breath.

It is very important, from my point of view, that we should clear this up as soon as possible, so that we can decide whether to do anything about it when we come to Report stage.

Lord Donaldson of Kingsbridge

If I may comment on what my noble friend said, over Eire, the rule is perfectly simple: there is, or will be, an agreement that sentences would be served over there that would have been served here, and there is no way round that. If a certain number of people—who certainly would not be supported by the Irish Government—cheer, too bad. In relation to Northern Ireland, that is part of Great Britain, and the Home Secretary does what he likes.

Lord Mishcon

I was comforted by what the noble Lord the Minister said, and I would not interfere in any way at all with the reflection that he wishes to give to this matter. I was, of course, not limiting myself by any manner of means to a consideration of terrorists coming from Ireland. This is, unfortunately, a modern scourge, and it is not just terrorists from Ireland who have committed crimes upon our soil. There is an ambassador of a certain country who will suffer for the rest of his life from a most dreadful injury as a result of a crime perpetrated over here. It was that general sort of consideration that I had in mind.

Lord Elton

If I can reply to the noble Lord, Lord Avebury, I did take care to say that I thought it was unwise to create categories of offence within the Bill, and I also took care to say that I was aware of the difficulties of, for instance—I may have left out the words "for instance"—returning somebody to a hero's welcome for something which we thought was a crime against humanity.

The Committee will recall that at Second Reading I did in fact go into this issue in some detail. In column 758 of Hansard. I said: Terrorists are criminals and are dealt with in the same way as other criminals in accordance with the seriousness of their crimes. I have already declared that the Secretary of State will not normally withhold his consent to the transfer of a particular prisoner unless he considers there are compelling reasons of public policy for so doing. Considerations of public policy might lead to a decision to refuse the transfer of any prisoner who had been convicted of particularly horrific crimes and who might be regarded as undeserving of any degree of public sympathy; for instance, in the case of a murderer, a particularly ruthless and unprincipled drug trafficker, or someone who had killed or maimed in the name of some political cause or committed other acts of a terrorist nature. Each case"— I said, and I repeat— will be dealt with on its merits taking due account of all relevant facts, including the considerations I have mentioned". [Official Report, 21/12/83; col. 758.) I do not think it is possible to be clearer or, indeed, to go any further than that.

Clause 3 agreed to.

Clause 4 [Temporary return]:

[Amendments Nos. 48 to 50 not moved.]

Lord Donaldson of Kingsbridge moved Amendment No. 51: Page 6, line 14, leave out ("may")

The noble Lord said: May I also speak to Amendments Nos. 52, 53. 54 and 56?

Amendment No. 52: Page 6, line 17, after ("(a)") insert ("may")

Amendment No. 53: Page 6, line 22, after ("(b) insert ("shall")

Amendment No. 54: Page 6, line 22, leave out ("for how") and insert ("that").

Amendment No. 56: Page 6, line 25, at end insert ("as part of the time served by the prisoner in detention in the United Kingdom.")

This is an elaborate way of altering Clause 4(2)(b) to read: shall provide that any period during which the prisoner is, by virtue of the later warrant, out of that part of the United Kingdom is to be treated for the purposes of the provisions contained in the earlier warrant as part of the time served by the prisoner in detention in the United Kingdom".

It is very near the point we were discussing before, that in so far as the prisoner is out of this country and detained, that period shall count towards his total sentence. I beg to move.

Lord Elton

As drafted, Clause 4(2) refers to warrants issued for the temporary transfer out of the United Kingdom of prisoners previously brought into the United Kingdom under another warrant under this Bill. The part of the warrants to which it is addressed is that part described in Clause 3(1)(c) which specifies the terms or provisions under which the prisoner is to be held. Clause 4(2)(a) provides that this warrant can be drawn up so as to repeat the provision made in the original warrant or to provide for those provisions to revive on the prisoner's return.

The language used is made a little more elaborate by meeting the need to provide for cases where such a prisoner may first be held in one part of the United Kingdom and, after his temporary absence abroad, be held in another perhaps nearer his home. It could well be that he might be held in the first instance temporarily in England, and in the second, more permanently, in Scotland. The way the Bill is drafted makes it possible to accomplish his removal from one jurisdiction to another whilst not affecting the length of his sentence.

Clause 4(2)(b) makes it possible for the temporary transfer warrant also to specify the way in which detention abroad shall be treated as regards counting towards the earliest date of release and so on. Both Clauses 4(2)(a) and 4(2)(b) are drafted in permissive terms. The effect of the noble Lord's amendment is to leave 4(2)(a) permissive but to make 4(2)(b) mandatory, so the warrant must provide in all cases that the whole of the time the prisoner is out of this country shall count towards his release date. I am sorry for the long preamble. I found it entirely necessary to say that in order to get to the point I have reached, and I hope it, will be helpful to the Committee.

I can quite see the justice which the noble Lord is seeking to do; or rather the injustice which he is seeking to prevent. The earliest date of release clock should not be stopped while foreign judicial proceedings drag their weary way to completion. Her Majesty's Government have every intention that the clock should indeed continue to run while the prisoner is detained in custody on temporary transfer abroad, and I should like that duly noted. What the noble Lord has perhaps overlooked is that the offender in question may not spent all of his time abroad in custody under those arrangements. He may be bailed or conditionally released or he may simply have escaped. The noble Lord's amendment would then have the effect of keeping the clock running even while the prisoner was at liberty, and it would do so regardless of whether that liberty was lawful or not.

In such cases the Secretary of State must not be forced to reduce the effective length of sentence by the length of time spent at liberty, without any discretion as to the circumstances. I do not suppose that, on reflection, the noble Lord would actually wish to deny him that discretion, since it would seem to defeat justice entirely. Perhaps therefore he would be satisfied with my assurance that under the Bill it is intended that the clock shall run while the person is properly held under the arrangements made between the countries.

Lord Melchett

I do not think that that is good enough. Why cannot the Bill say that the time during which the prisoner is out of the country and in custody will count towards the period? That would meet the noble Lord's point that if he is out of the country and bailed or escapes, it should not be counted as imprisonment. The great danger, of which I think the noble Lord is aware, is that if elements of discretion are left in the Bill, for which there are no discernable reasons whatever, people are bound to start worrying and imputing even rather bad motives to the Government. The noble Lord has made a perfectly simple point and it could be perfectly simply incorporated in the legislation.

Lord Donaldson of Kingsbridge

I think that it is covered at the beginning of subsection (2) where it says: Where the prisoner is required, when that warrant is issued, to be detained". Does that not do it?

Lord Elton

I think that it does not, but for reasons which do not immediately spring to mind. In other words, I have more sympathy with what the noble Lord is now trying to achieve, which is slightly different fromwhat, on the face of the amendment, he was trying to achieve. If your Lordships will bear with me, I will probe the matter further. It may be that we can do something. I would not want your Lordships to leap to the conclusion that we will do something, but we are well disposed to looking at the matter.

Lord Donaldson of Kingsbridge

I am grateful and happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 52, to 57 not moved.]

Clause 4 agreed to.

Clause 5 [Operation of warrant and retaking prisioners]:

[Amendments Nos. 58 to 65 not moved.]

Clause 5 agreed to.

Clause 6 [Revocation etc. of warrants]:

Lord Avebury moved Amendment No. 66:

Page 8, line 7, at end insert— ("Provided that nothing in this subsection shall empower the Secretary of State to issue a new warrant containing provisions less favourable than those in the original warrant unless—

1. (i) the terms of the original warrant expressly reserve the right so to do; and
2. (ii) the less favourable provisions are inserted to give effect to a specific requirement of the international arrangements in accordance with which the original transfer took place.")

The noble Lord said: This clause provides that the Secretary of State may revoke a warrant and reissue it with new provisions. One can understand that a power of this kind is necessary so that where the sentencing state, for instance, grants a free pardon, the prisoner is then released forthwith. But we should like to be assured that it could only be used to increase the length of time that a person spends in custody where this is specifically permitted by some clause in the international agreement in question, and where the original warrant allows for such an increase. That is what the amendment is designed to secure. I beg to move.

Lord Elton

There should be only very occasional need for the Secretary of State to issue a new warrant imposing a longer term of detention. We can therefore agree in principle with the aim of the amendment. I hope that the noble Lord is seized of what I am saying. I regret that one can never be absolutely satisfied with anybody else's drafting. The term "less favourable" in this case seems to us a little imprecise. If the noble Lord would consider withdrawing the amendment, I would undertake to consider how to introduce a Government amendment on similar lines at the next stage.

Lord Avebury

I am of course delighted to do so, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.13 p.m.

Lord Avebury moved Amendment No. 67: Page 8, line 26, at end insert ("except where such a defect relates to erroneous material information given to the prisoner prior to his consenting to the transfer.")

The noble Lord said: This is a probing amendment. Let us suppose a person consents to a transfer on the basis that, having been sentenced to 30 years' imprisonment abroad and having served 16 years before the warrant, he is going to be detained then for another four years in the United Kingdom, but the authorities then discover that it should have been 14 years and that the four years specified in the warrant was a misprint: could they then reissue the warrant and, if so, does the noble Lord the Minister consider that that is entirely fair if the person has made up his mind to accept the transfer on the basis of that information that was given wrongly, although in good faith? I beg to move.

Lord Elton

The noble Lord may be a little surprised to learn that, on the whole, we feel that an amendment on the general lines he proposes would be reasonable in view of the wide discretion which the Secretary of State will have to vary or revoke transfer warrants. We should prefer to consider the precise form further, and we would wish to consider it in conjunction with the amendment I have already undertaken to consider requiring particular information to be given prior to consent. Both objectives may perhaps be achieved with a single amendment.

Lord Avebury

Once again I am extraordinarily grateful to the Minister, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clause 7 [Expenses]:

Lord Avebury moved Amendment No. 68: Page 8, line 31, leave out ("shall") and insert ("may")

The noble Lord said: I beg to move Amendment No. 68. and I should also like to speak to Amendments Nos. 69 and 71:

Amendment No. 69: Page 8, line 31, leave out ("either before or")

Amendment No. 71: Page 8, line 34, leave out ("or persons acting on his behalf')

These amendments concern the arrangements in Clause 7 by which the Secretary of State recovers the costs of repatriating British citizens from overseas prisons. We noted what the Minister said on Second Reading about the anomaly that would arise if the prisoners about whom we are concerned here were repatriated at public expense when tourists who are stranded overseas have to reimburse the cost which is incurred in meeting their fares.

However, the destitute tourist who is coming back here is returning to freedom and to at least the possibility of earning money out of which he could make the payments towards those transport costs. But the prisoner, about whom we are talking, is returning, by definition, to a further period of imprisonment —maybe several more years in custody—and during that time, as I understand it, the payment which is sought to be levied on him, if he is not able to meet it out of his capital, will be subject to interest at commercial rates, which will pile up during the remainder of the sentence.

We are not saying in this group of amendments that nobody should ever be asked to contribute anything towards the costs of repatriation, but it may be that some prisoners could afford to do so. However, we make this permissive. The Secretary of State is not obliged to recover the money from the prisoner or his relatives in every case, because after the word "arrangements" in this subsection, there appears in the Bill, as it stands, the qualifying phrase, "(if any)".

We think that there is not probably any real difference between us and the Minister on the need for the power, but it becomes clearer that the Secretary of State does have the option if the word "may" is used instead of the word "shall" at the beginning of the clause. I take the point that the noble and learned Lord, Lord Denning, made earlier on this subject.

Secondly, we do not like the notion of using the issue of the warrant as a means of extracting the money from the prisoner or his relatives. I know that the noble Lord has given an assurance on an earlier amendment that that was not the intention, but it certainly appears to be the intention if we look at the clause as it stands. If the Secretary of State has the right to demand payment before the warrant is issued—as he does in the Bill as it stands—then he could, as it were, hold the prisoner, or patient or his relatives to ransom and say that he will not issue the warrant until the money is lodged with him for the purpose of paying the fare.

Thirdly, it seems to us wrong to let the Secretary of State exert pressure on the relatives to pay these costs, as the clause seems to envisage. We need to have a more thorough explanation than we have heard so far from the Minister of how that will work. If the transfer is not dependent on payment being received or promised—and I do not see how it could be as there is nothing in the treaty on this matter—then the payment will not be very easy to collect, because the relatives will be entitled to say that if the Council of Europe develops the repatriation scheme (and this was a matter of discussion extending over a great many years and there was never any question of a prisoner or his relatives being asked to pay at that time), then they are under no moral obligation to meet any request that the Secretaryof State makes. As I see it, nor are they under any legal obligation, though no doubt the Minister will correct me if I am wrong.

Therefore, I think that we need a pretty thorough explanation of how the demands will be levied on the prisoner or his relatives, and exactly what powers the Secretary of State has to compel them to make these payments, either before he issues the warrant or before the person is transferred back to this country. I beg to move.

Lord Elton

Clause 7 deals with expenses incurred through the operation of the machinery set up by the Bill. Those expenses may be fairly considerable because they may involve somebody travelling halfway across the world to bring someone else back in conditions of security, and perhaps staying overnight in secure conditions on the way back. I ought to make it clear, as the Bill itself makes it clear, that the Secretary of State will not be in a position to recover the expenses of any escorts; he is concerned only with the expenses of the prisoner himself.

Clause 7(2) provides for the recovery of those expenses by the Secretary of State from the prisoner or those acting for him. Those arrangements can, under the Bill as drafted, be made either before or after the warrant is issued, and the amendment at which we are looking at the moment would mean that they could only be made after the issue of the warrant. However, the noble Lord has actually addressed a wider group of amendments than I expected him to take at this stage. I am quite seized of the noble Lord's anxiety. He does not wish British prisoners to languish in foreign gaols or, for that matter, foreign prisoners to be held in British gaols unnecessarily while negotiations are carried out about who shall pay for their journeys and how much they shall pay.

I can say that it is not our intention that they shall languish in foreign gaols merely because the prisoner cannot guarantee being able to repay the cost of his fare and has no relatives or friends willing to help him out. But we must take all reasonable steps to ensure that where the prisoner does have the means, or will have access to funds on his return, the fare is paid either by him or by somebody for him. To send somebody across Europe may be expensive, and I have to remind the noble Lord—it has already been mentioned once—that British citizens stranded innocently abroad with their families have to pay back, and have to undertake to pay back, any sums necessary to get them home. If the noble Lord's amendment sought simply to ensure that any convict with a reasonable case could get a free ticket home, then I think your Lordships would have little patience with it.

I understand that the noble Lord is seeking an assurance that the Secretary of State will not use these circumstances to leave people languishing abroad. That is an undertaking that I can give. It is very difficult to be more precise, because if the prisoner is genuinely broke and genuinely ought to come home under the arrangements, then we shall genuinely bring him back. What I cannot tell the noble Lord at this stage is precisely the means that we shall take to assure ourselves of the fact that he is broke. I can only say that they will be interpreted in a humane way, but a way which would prevent the exploitation of the system which is proper for returning holidaymakers, so that the holidaymakers themselves do not suffer from it because they have to repay and the prisoner does not.

Lord Melchett

We are dealing with people who are in rather different circumstances than stranded holidaymakers. Some of these are being kept in quite appalling conditions, maybe at very great risk to their health or personal safety. I am sure that the noble Lord does not need reminding of the quite appalling problems which face some British citizens in prisons in some countries overseas. There is a very genuine concern at the combination of the Government's interest in recovering expenses with their very wide discretionary powers, not just at one stage but at two stages (and we have already discussed those powers in this connection); that is, as to whether they will agree to a transfer and then avoid carrying the transfer through even if it has been agreed to by all the parties. There is concern that that provision is there so that the Government can try to get the money from the prisoner, or from dependants of the prisoner in this country, before the transfer takes place.

The noble Lord has given a very clear undertaking that that will not be done. But, as he knows, that sort of undertaking, while given in Parliament, will not necessarily be carried into effect as transfers take place in increasing numbers over many years under successive Governments, Ministers, and so on. I should have thought that, if that is the Government's intention (as I am sure it is, and as the noble Lord has said), it would be possible to include in the Bill something to the effect that the inability of a prisoner or of a prisoner's relatives or advisers in this country to meet the costs will not be available as a reason for the Secretary of State to exercise the discretion to prevent the transfer going ahead. That would completely answer the worries which a number of us have on this point.

Lord Donaldson of Kingsbridge

I should like to support the noble Lord, Lord Melchett. The argument is fairly obvious and does not need infinite repetition. But when the prisoner is asked whether he agrees to be repatriated, we do not want him to be told that unless he can pay a certain percentage of the cost he will not be. That is what we do not want. What the noble Lord, Lord Melchett, has added might deal with the matter. Most of us think that this is wrong as it stands, but there are a splendid couple of words in line 33 which say: shall … make such arrangements (if any)". To some extent I think that that reduces the force of "must" to "may", anyway.

Lord Elton

I should have referred to those splendid words, as the noble Lord calls them, had I known that these amendments would be taken as a group, and not reserved some of my fire for a later stage. Let us be clear about what we are trying to do. We are trying to identify people who, under the terms of an international agreement or convention, qualify to be repatriated, in this case to this country. That is a quite separate exercise from discovering whether or not they can pay for their ticket.

I am anxious not to tie the hands of the Secretary of State as to when the arrangements for making repayment. if there is to be repayment, should be embarked upon. One approach suggested in the group of amendments is that the Home Secretary should not seek to make those arrangements before the warrant had been agreed to. That would simply slow things up. I sympathise with what noble Lords are trying to do, and I shall look carefully at what the noble Lord, Lord Melchett, has suggested, because I think it slightly escaped me while he was delivering it.

However, we cannot say that nobody shall pay for their ticket home because that would evidently be unjust and would outrage many people who have had to pay back for honest journeys. Nor can we say that everybody will pay for their ticket home, because we may be dealing with people who have very large Swiss bank accounts or very wealthy uncles, aunts, brothers, sisters, children or parents, or who have very large stables of horses waiting for them to gamble with when they come out. So as we cannot say "nobody" and as we cannot say "everybody", I suppose that we could say that "most" people should; but that is not legislative language and the difficulty is to express what we mean.

It is possible that I may have missed something in what the noble Lord, Lord Melchett. said, which might get round that difficulty. Other noble Lords might find a way round that difficulty at a later stage. At present. I do not see a way round it. Therefore, I can go no further than say what it is we intend. If it were possible to express what we mean more clearly in statutory language, there would be no objection to doing it.

Lord Melchett

Let me put one thought in the noble Lord's mind. If anyone has stables full of horses or, indeed, any other considerable assets in this country, once he returns it should not be beyond the wit of the Government to recover the expenses from him. I do not regard that as a major difficulty. On the other hand, the worry is that some people who have very genuine difficulties in meeting the bill will be told that before they can be transferred they must meet it in some way. As there is the real risk that people will be threatened by the Government saying, "You find the money and then you will get transferred" we need it met in some way in the Bill.

Lord Elton

No Government. however ingenious, would be able to find the means of getting the money back if the power to do so is not in the Bill.

Lord Avebury

I am still none the wiser on the powers of the Minister. It says that the Minister may make such arrangements. It does not say how he is going to compel the prisoner, or these hypothetical uncles or aunts, to make the payments if they are not prepared to do so. The Minister has already said that he is not going to hold up the issue of the warrant, so that there is no bargaining power there if he goes to the prisoner and says, "You have these resources in the United Kingdom so you are well able to pay the cost." In those circumstances, everybody would agree that it is only reasonable that the prisoner should pay if he has these assets in the United Kingdom.

But what the Minister has said is first that there is no question of pressure being brought to bear on him before the issue of the warrant. Secondly, there has to be some kind of assessment of his ability to pay from an examination of assets at his disposal in the United Kingdom, or whatever, although I should think that there would be few people after several years in Bangkok or Montevideo who would be able to pay, as the Minister says, the substantial amount of money required to bring them back home.

Therefore, the Minister makes some sort of assessment of means and asks the person whether he voluntarily will agree to pay something which, if he had been a tourist, the Government would have had the power to compel him to pay. And the Government say, "Don't you think it is unreasonable that you should be brought back home at public expense when the tourist would have to pay, and would have been obliged to pay by law? Even though we have not got power to make you do this, won't you contribute to the Exchequer to see that there is not this unfair difference between you and the tourist?" The prisoner will obviously say. "Why should I if the Minister has no power to compel me?"

Similarly if you go to the rich uncles and aunts there would be even less inclination for them to stump up. I cannot see much point in having this clause in the Bill unless there is a power in the Secretary of State to compel an unwilling contributor to stump up towards his fare. Nothing the Minister said gave me any indication that such a power is in the Bill.

Lord Elton

The noble Lord has put his finger on a difficulty to which I do not have an immediate answer. Everything he says suggested that I ought not to have made the restrained noises I did in reassuring your Lordships that nobody would ever be faced with staying abroad unless they paid for their ticket to come home. I shall certainly look at what I have said with a view to whether I have said the right thing at the same time as I look at the whole question that the noble Lord raised.

Lord Avebury

I thought that there must be something that I had spotted, although it was not immediately apparent on the face of Clause 7, that in the last resort the Minister would have the power to recover these charges. But I now see it is only a request which is going to be made to the prisoner and/or to the persons acting on his behalf, which the Minister has clarified could be his relatives. We have probably gone as far as we can in this discussion this evening. In the meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 60 to 74 not moved.]

Clause 7 agreed to.

Clause 8 [Interpretation and certificates]:

[Amendment No. 75 not moved.]

6.35 p.m.

Lord Elton moved Amendment No. 76: Page 9, line 8, leave out ("the criminal jurisdiction of a court or tribunal") and insert ("criminal jurisdiction, in relation to a court or tribunal in a country or territory outside the British Islands,").

The noble Lord said: This is my solitary appearance on the positive side, as it were. This is essentially a drafting amendment, the purpose of which is to remove any misunderstanding that might arise about the possible application of subsection (2) of Clause 8 to any jurisdiction in the United Kingdom. There is in fact no such jurisdiction to which it is intended to apply. The amendment makes it clear that the subsection applies only to any jurisdictions of the sort described which may exist outside the British islands. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 8, as amended, shall stand part of the Bill?

Lord Somers

I cannot see anywhere in the Bill where the Secretary of State is defined. I presume that it is the Home Secretary, but I wonder whether it ought to be put down in black and white in the Bill.

Lord Elton

For reasons which entirely escape me, apparently it never is. The noble Lord is right in supposing that it is the Home Secretary. Apparently those who come to legislation are gifted with insight which I do not always have and know who the Secretary of State referred to is. If we were to name him I think we should be in breach of a convention. It occurs to me that if the Secretary of State for the Home Office happened to be in bed with 'flu, or abroad, it would have to be another Secretary of State anyway, and that is probably the reason.

Clause 8, as amended, agreed to.

Lord Donaldson of Kingsbridge moved Amendment No. 77:

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: This is an obvious thing to ask for. This is an entirely new field. We have never done any of it before and Parliament should hear how it is going. Among other things, Parliament would like to know how much money is recovered, which we were discussing in the previous amendment. Without further argument I think that this is a desirable amendment to the Bill as a whole, and I hope it can he accepted.

Lord Elton

It is quite unusual to include in new legislation a permanent statutory requirement for the presentation of an annual report for the purposes of monitoring the operation of that legislation. Any necessary monitoring is usually facilitated by the maintenance of relevant statistics and in certain cases by monitoring a research study after a few years' operation. We certainly intend to record a fair amount of factual information about the operation of prisoner repatriation arrangements, and this will be available as necessary for the purpose of answering specific inquiries.

Given your Lordships' interest, those inquiries will doubtless be numerous and may well emanate from your Lordships in person. It seems to me that Members' questions directed at individual cases together with annual statistics duly published provide a better means of monitoring the working of this Bill than what is now proposed, particularly as once we have cleared the initial backlog the traffic each year is likely to be small. I inquired as to the likely traffic and I understand it is expected to be two, three or four cases a year. I wonder whether the noble Lord would be content to write, or to get somebody else to write, on each occasion or at the end of each year. I would be happier with that than with setting up the machinery of an annual report.

Lord Donaldson of Kingsbridge

If the noble Lord is correct in his estimate it would be ridiculous to ask for more; but I should like to ask that the question of expenditure recovered and all of the problems about that be included in these statistics, and I look forward to writing to the noble Lord year after year on this question.

Lord Melchett

I am not sure that this is something that can he dismissed quite as easily as the noble Lord, Lord Elton, suggested. It may be a small number of cases, as the noble Lord suggests, but that will be after a considerable period of time. I do not know whether he would be prepared to give us an estimate of when he expects the backlog to be completed. My impression is that it is going to be a considerable number of years.

Even when that backlog has been cleared we are still dealing with the exercise of considerable ministerial discretion leading to people being placed in prison and deprived of their liberty in this country after a process which does not begin to resemble the trial, with the rules of natural justice applied, the publicity, and so on, which we expect in this country before somebody is incarcerated against their will. In those circumstances, it behoves the Government, and those of us who support the Bill, as I do very strongly, to see whether there are not ways to make the exercise of this enormous discretion and great power, without the normal checks and balances which our judicial system provides, more open and more subject to public scrutiny than will otherwise be the case. For the Secretary of State to have to report, even if only one case a year, to say how the discretion had been exercised, in what circumstances and with what consequences for the individual, does not seem to be too onerous a burden. I hope the Minister will pause and reflect on the great powers we are giving to Secretaries of State for many years to come. After all, a judge has to give a judgment in open court. Judges are subject to being reported by the press, to being criticised, to being appealed against; a number of safeguards, to say nothing of the other rules of natural justice which apply in those circumstances, all of which are completely swept aside by the Bill—for good reason, I accept: nevertheless, swept aside they are.

The noble Lord has gone a long way to meeting a number of the amendments this evening. If he can fulfil at Report stage the undertakings he has given, he will have gone a long way to improving the Bill. We are still left with enormous discretion in ministerial hands and in circumstances quite unknown previously in this country. I do not think that. in those circumstances, a brief annual report to Parliament is too much to ask for.

Lord Mishcon

I rise to make a few quick points on something which has been well ventilated. I promise to make them as fresh points.

The first is that quite obviously if the numbers are few the report could be a couple of pages and therefore will not cause any damage to anybody. The second point I make is rather more material. Parliament will have no way at all of finding out how this matter is working, not only in relation to the use of the discretion by the Secretary of State—which my noble friend Lord Melchett and others have already mentioned—but more particularly how it is working out from the point of view of mutuality among the various nations with whom we will have these agreements. That is tremendously important. We ought to know whether our treatment in regard to prisoners of other nations in this country—which I am sure we will carry out with great fairness under the Bill—is being properly reciprocated by other nations; whether difficulties are being encountered which Parliament would want to look in to, either by revising the Act or by some other means in relation to the convention that already exists.

It would be sensible if the noble Lord the Minister would consider this. I can see his point in saying that we have here an Act of Parliament which will be on the statute book for many years and that this will impose an obligation to do this every year. It could easily be done, but, because this is an innovative measure, it could be an annual report, for example, for the first five or 10 years of its operation and then could be renewable or otherwise by an order made in Parliament. I should have thought that that would be a way of overcoming the perpetuity rule, if I may put it that way, which might otherwise be in the Bill. We ought to be able to see the mutuality of this and how it is working out internationally and otherwise, quite apart from the statistics and the fees and charges that may have been collected.

Lord Avebury

We are not only talking about the cases, surely, where an applicant has successfully requested the Secretary of State to transfer him either to or from this country. We are talking about the total universe of applications made by individuals who are otherwise suitably qualified under the terms of the treaty. In other words, they have more than six months left to serve, they have exhausted their rights of appeal, and so on.

What one would like to know in an annual report of this kind is what is the total number of applications that have been made by suitably qualified persons, both in our prisons and in countries overseas where British citizens are held in custody and what was the fate of those applications in each of the countries. If one takes that as the subject of the annual report, which my noble friend Lord Donaldson of Kingsbridge is asking for, that must be a great deal more than two or three cases such as mentioned by the Minister. Speaking from memory, we have 3,600-odd citizens of foreign countries in the prisons of Great Britain. That comes from the figures which the noble Lord, Lord Elton, is good enough to give me on 30th April every year, so my figures relate to 1983.

Lord Elton

That reveals a very admirable process for checking how these things work.

Lord Avebury

Yes, that is an overall figure, which the noble Lord gives me of the number of persons who are citizens of Commonwealth and foreign countries respectively in our prisons as at that date, 30th April each year. I think the Minister said that there were about 800 British prisoners in overseas prisons at any one time. It is unbelievable that we could be thinking in terms of only two or three cases from that universe of applicants who are suitably qualified. I should have thought that the report would be a slightly more weighty document than the noble Lord originally had in mind.

Some of those people may turn out to be excluded for one reason or another and they will not all be transferred. What my noble friend and others would like to know is how many applications there are in any one year from foreigners of various nationalities in our prisons to be repatriated to their countries and from British prisoners in Thailand, Turkey or wherever to come back here. In the case of each country or each nationality in our prisons, what percentage or how many of those were successful? There will still be the individual cases that we take up with the noble Lord the Minister, or with the Foreign Office as the case may be, and we would continue to do that just as we do now.

It will be of interest to your Lordships and to the people of the country as a whole to know how these arrangements are working; whether on balance we have more British prisoners coming back to this country than foreigners going back to their homeland and in what circumstances refusals are meted out, if any. One would like to be able to monitor all sorts of questions of a statistical nature as well as being able to follow individual cases. I hope that on reflection the noble Lord will agree that my noble friend's suggestion has some merit.

Lord Donaldson of Kingsbridge

I do not propose to divide the Committee on this, but we have shown that we want to be told by the noble Lord the Minister, at the next stage or possibly in the final speech on the Question, That this Bill do now pass, what sort of statistics will be kept regularly, so that at least we know how to get hold of them. I should be content with that, rather than laying a report before Parliament if the amount of information is small. If, after a year or two, it becomes complicated, we shall ask for something more. As long as the noble Lord will make some sort of accurate response to what we can expect to know at the end of the first, second and third years about how this is working, I should be happy to withdraw the amendment.

Lord Elton

I should be perfectly happy to come back with proposals about what to put in the annual statistics, and that seems to me to be quite reasonable.

Lord Donaldson of Kingsbridge

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Short title, commencement and extent]:

[Amendment No. 78 not moved.]

Clause 9 agreed to.

In the Schedule [Operation of certain enactments in relation to the prisoner]:

[Amendments Nos. 79 to 92 not moved.]

6.49 p.m.

Lord Avebury moved Amendment No. 93: Page 12, line 1, at end insert ("except where the offence is not an offence in the United Kingdom").

The noble Lord said: The purpose of this amendment is to ensure that where a person has been convicted overseas for conduct that is not an offence in the United Kingdom he would not have to suffer the additional indignity or disadvantage of having the period that he spent in custody here entered on his record. I beg to move.

Lord Elton

This amendment may be based on a misunderstanding of the Rehabilitation of Offenders Act 1974 and the equivalent Northern Ireland order. As I understand it, the aim of the amendment is to ensure that a conviction overseas for behaviour which would not constitute a criminal offence in the United Kingdom is not included in the person's criminal record in this country.

Lord Avebury

But it is.

Lord Elton

The noble Lord assures us that that is so. In that case, I fear the amendment would not achieve the desired effect. It would however create confusion as to the appropriate rehabilitation period for the conviction in such a case. The rehabilitation of offenders legislation does not affect the maintenance of criminal records; it is concerned with a person's right in law to have convictions disregarded for most purposes after a period of time, which is governed by the sentence imposed.

The legislation does not apply to sentences of imprisonment exceeding 30 months. It does apply to convictions by or before courts outside the United Kingdom. Simply to avoid doubt as to whether it is, on the one hand, a sentence originally pronounced or, on the other, that part of it which remains to be served in the United Kingdom following the transfer—I regret that I have read out half a sentence which I had not intended to read out so if your Lordships feel a sense of similarity when I now start again, the first part of the sentence is the part that I did mean to read out. The purpose of paragraph 6 of the Schedule is to provide that the length of the term specified in the transfer warrant to be served in the United Kingdom following repatriation should not affect the operation of the Rehabilitation of Offenders Act 1974 and the Northern Irish Order of 1978. Those enactments both apply to convictions outside the United Kingdom and it would be wrong for repatriation under the provisions of this Bill to interfere with this normal operation. For example, a prisoner sentenced to three years' imprisonment in, say, France would not be eligible for rehabilitation under the 1974 Act or the 1978 order, which excludes from rehabilitation sentences in excess of 30 months. If he were repatriated to the United Kingdom after serving one year of his sentence, one of the relevant provisions in the warrant would be liability to serve a further term of two years. The effect of paragraph 6 in that case would be that for the purposes of the rehabilitation legislation there could be no doubt but that the outstanding term of two years would be disregarded and the original sentence of three years would continue to be material. I do not doubt that the noble Lord will wish to read that, as I shall.

Lord Avebury

I am afraid that this is not the right place for me to be pressing the point on the Minister; but he correctly divined the purpose of the amendment, that whereas something is not an offence in the United Kingdom, it should not appear on the criminal record of the person being repatriated. It may well be that what is needed here is an amendment to the Rehabilitation of Offenders Act. which could be dealt with in other legislation. I will obviously need to study the rather complicated remarks of the Minister and to think about how this can best be tackled before we come back to it on Report stage. I beg leave to withdraw the amendment.

Amendment by leave, withdrawn.

[Amendments Nos. 94 and 95 not moved.]

Lord Avebury moved amendment No. 96: Page 12, line 25, leave out ("the relevant provisions take effect") and insert ("he was convicted in the country from which he is being transferred.").

The noble Lord said: Paragraph 7 of the schedule deals with the disqualification of a person from membership of another place, and says that for the purpose of the Representation of the People Act 1981 it is the date of the original sentence that matters and not the date on the transfer warrant. Paragraph 8, on the other hand, to which this amendment applies, dates the disqualification for possession of a firearm in Northern Ireland from the date of the transfer. It may well be that a period of disqualification from the date of conviction of more than eight years is justifiable. If that is so, however, it would apply to all persons convicted of serious offences either at home or abroad. In general, the effect of a sentence in an overseas country ought to be the same as a sentence in the United Kingdom whether for the purposes of the Representation of the People Act, the Rehabilitation of Offenders Act or the firearms legislation in Northern Ireland. I beg to move.

Lord Mishcon

In supporting what my noble friend has just said, I should like to pay my tribute—and I imagine that others would want to join with me—to the fact that we have received a great deal of assistance from the National Council for the Welfare of Prisoners Abroad. They have raised many points and given us a lot of data, upon which we have brought amendments before your Lordships this afternoon.

Lord Elton

In congratulating the noble Lord, Lord Avebury, on the closeness with which he has read the provisions of this Bill, I have to say that the reason why the effective date for disqualification under the Northern Ireland Firearms Order is the effective date of the Secretary of State's warrant is because the Northern Ireland order does not apply to convictions outside the United Kingdom and therefore can only apply to a sentence served within the United Kingdom.

This differs with good reason from the approach in paragraph 7 of the schedule. In that case the date of conviction in the sentencing state applies because Section I of the Representation of the People Act 1981 applies to persons convicted of offences in the United Kingdom or elsewhere: so there is no actual inconsistency of treatment here in the Bill. The difference is simply a reflection of differences of approach which were adopted in two completely different and unconnected existing statutes. I hope therefore that the noble Lord will feel that his amendment is not appropriate.

Lord Avebury

In thanking the Minister for that reply, may I also take the opportunity of echoing what was said by the noble Lord, Lord Mishcon, and paying my respects to the National Council for the Welfare of Prisoners Abroad, not only for the advice they have given us on this Bill but also for the invaluable work they have done over the years in trying to help prisoners abroad, in promoting the cause of prisoner transfer treaties and in looking after the interests of individuals who may have nobody else to assist them and who are serving very long sentences in harsh conditions in overseas countries. On a vestigial budget, they do a fantastic job and their work in advising your Lordships on this Bill has been an extremely good example of the effectiveness of a small pressure group. I am most grateful to the noble Lord for his remarks on this amendment and for the courteous and helpful way in which he has received the points we have made during the course of the Committee stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule agreed to.

Lord Elton

I always like to take a moment, appropriate or otherwise, to thank noble Lords for their patience and courtesy. I hope they will agree that the Government have been anything but inflexible on this. How well I shall perform when I come back with all my promised returns remains to be seen, but the effort will be genuine. I am grateful to noble Lords for the ideas they have given to Her Majesty's Government and also to the organisation standing behind them, which they have been kind enough to mention.

Lord Donaldson of Kingsbridge

May I say how agreeable it is for once to find myself agreeing very largely with the noble Lord on the Front Bench.

Lord Mishcon

May I merely say one sentence: I hope the reasonableness of the noble Lord the Minister is but a precedent for things to come.

House resumed: Bill reported with an amendment.