Police and Justice Bill

moved Amendment No. 138: After Clause 48, insert the following new clause- ““Repatriation of prisoners TRANSFER OF PRISONER UNDER INTERNATIONAL ARRANGEMENTS NOT REQUIRING HIS CONSENT (1) Section 1 of the Repatriation of Prisoners Act 1984 (c. 47) (issue of warrant for transfer) is amended as follows. (2) In subsection (1), for paragraph (c) there is substituted- ““(c) in a case in which the terms of those arrangements provide for the prisoner to be transferred only with his consent, the prisoner's consent has been given,””. (3) In subsection (5), for the words from the beginning to ““was given”” there is substituted ““In such a case as is referred to in subsection (1)(c) above, the relevant Minister shall not issue a warrant under this Act unless he is satisfied that the prisoner's consent was given””. (4) The amendments to section 1 of the 1984 Act in subsections (2) and (3) do not have effect in relation to any case in which the relevant Minister under that section is the Scottish Ministers.”” The noble Baroness said: Amendments Nos. 138 and 155 refer to foreign national prisoners and repatriation. Although it is quite late, the noble Baroness, Lady Anelay, has several issues that she very much wants to have clarified, and it is therefore right for me to spend a little more time than I would otherwise spend at this late hour to ensure that those issues are covered and that we can have a proper debate. Foreign national prisoners currently make up approximately 12 per cent of the prisoner population. The Government believe that they should, wherever possible, serve their sentence in their own country. At present, the Repatriation of Prisoners Act 1984 requires three-way consent involving the sentencing state, the receiving state and the prisoner. That means that a prisoner can in effect veto a transfer properly agreed between the two Governments concerned by refusing to consent to the transfer, and the Government believe that this is no longer appropriate. The new clause amends the Repatriation of Prisoners Act by clarifying the circumstances in which a prisoner will be required to consent to a transfer before that transfer can take place. A prisoner will be required to consent to the transfer only if the relevant international agreement makes consent a prerequisite to the transfer. Amending the 1984 Act in this way will enable the United Kingdom to ratify and conclude prisoner transfer arrangements that do not require prisoner consent. The consent of both Governments involved will still be required in each case, so where prisoner consent is still required by the relevant international arrangement, Ministers must be satisfied that that consent has been given in accordance with the requirements of those arrangements before transfer can take place. The noble Baroness, Lady Anelay, has tabled an amendment that seeks to replace ““satisfied”” with, "““has reasonable grounds for believing””." The amendment would enable the Government to transfer a prisoner without having established beyond doubt that the prisoner had given consent in a case where the international arrangements require it to be given. We respectfully suggest that repatriating a prisoner in such circumstances without knowing for certain whether the requirement for consent had been satisfied would be inconsistent with those arrangements. Accordingly, I cannot commend the noble Baroness’s amendment to the House, but I am sure that she will say in the usual way that she was simply giving me an opportunity to make it clear that such iniquitous practice would not happen here, and I am happy to oblige her. The Repatriation of Prisoners Act came into force about 21 years ago. Since then, the international thinking and practice on prisoner transfer has moved on. Arrangements such as the additional protocol to the Council of Europe convention on the transfer of sentenced persons opened for signature in 1997, and provide for the transfer of prisoners without their consent where they are to be deported or otherwise removed at the end of their sentence. The EU is also considering a proposal for a framework decision on prisoner transfer between member states, which would enable prisoners to be transferred without consent if that framework decision were to be adopted in due course. This amendment will enable the United Kingdom to start negotiations with like-minded countries to put in place prisoner transfer agreements that do not require prisoner consent. The Government will also enter into discussions with those countries with which they already have an agreement with a view to removing the requirement for consent. Their intention would be to transfer those prisoners who have no links with the United Kingdom and those who, in any event, may face deportation at the end of the sentence. Often prisoners, such as drug offenders, will have entered the United Kingdom solely to commit a criminal offence. In those circumstances, the Government believe that it is right that the prisoner should serve his sentence in his own country where he can also receive support from family, friends and the community, aiding his chances of rehabilitation. Subject to the agreement of the Government of the receiving state, prisoners will be returned to their state of nationality or, if appropriate, to the state of residence. The Government will not seek to transfer those prisoners whose primary links are agreed to be with the United Kingdom and who are therefore unlikely to be removed at the end of the sentence, although each case will be considered on its individual merits. Those comments deal with the generality of the noble Baroness’s concerns, but she asked some additional, specific questions in relation, for example, to how many transfers per year the Government are expecting. It is not possible to estimate the number of prisoners who may be transferred without consent. That will depend on our ability to negotiate new and revised prisoner transfer agreements. The provision is part of a package of proposals aimed at increasing the number of foreign national prisoners who return to their own country to continue serving their sentence. The noble Baroness wants to know where some of those prisoners come from and, in particular, whether Jamaicans form the largest group in the United Kingdom, which they do. Negotiations on the prisoner transfer agreement between the United Kingdom and Jamaica are now at an advanced stage. I have the happy task of involving myself in those negotiations and we await their outcome. The noble Baroness is also interested to know whether the Government expect to make any savings on the expenditure of maintaining prisoners within the prison estate in the United Kingdom. Removing prisoners at an early stage of their sentence will free up prison places. That is important at a time when the Prison Service is facing considerable pressure on its accommodation. The extent of savings in prison places is of course similarly difficult to estimate. The savings will be dependent, once again, on the agreements that the Government are able to put in place and the stage in the sentence when a prisoner is transferred. This is not a scheme in the normal understanding of the word because it does not introduce any freestanding power to remove prisoners without first obtaining their consent. The amendment simply clarifies the domestic law provision on whether in future prison consent is required before a transfer can take place. As I tried to explain earlier, the option of negotiating agreements with other states without this as a provision is not available to us. We were also asked how we would know whether foreign prisoners qualified for transfer. The recorded nationality of a prisoner is self-declared, but work is in hand to improve the quality of the data. Once an international agreement without consent is in place, prison governors will be asked to identify all those within their custody from the countries concerned. I say in passing, since it is late at night, that if the noble Baroness’s party opposite was more amenable to identity cards and their effect, we would be greatly assisted in identifying exactly who people are, where they come from and, obviously, where they could happily go back to. That is a matter on which the noble Baroness may want to reflect with her colleagues opposite. I have tried to deal with sending prisoners home, which could of course be to their country of nationality or where they have a right to reside. I was asked about the impact of the European free movement law upon this proposal. A prisoner’s rights under the European Free Movement Directive are not affected by these changes. The Government will seek to transfer those prisoners who have no links with the United Kingdom and those who would in any case be deported at the end of their sentence. Those who have a right to reside in the United Kingdom are unlikely to be transferred unless, of course, they have lost or would otherwise lose the right of residence. The noble Baroness also wanted to know whether the process would be hampered by the prisoner’s right to appeal or human rights and asylum legislation. The amendment will not have any effect on the obligation of the United Kingdom Government to comply with their international obligations. Consequently, prisoners affected by a decision to repatriate without consent will be able to seek judicial review of the decision if implementing it would risk infringing the ECHR, the refugee convention or another tenet of international or public law. The Government will robustly defend any decision properly taken. I was asked whether prisoners detained under mental health legislation would be excluded from the process, and if so, how. A decision has not yet been made on that. To be eligible for transfer, the relevant international arrangement would need to specifically cover those detained under mental health legislation. This is an enabling provision which will be effected in the way I have described. The noble Baroness asked whether prisoners who had previously been granted indefinite leave to remain in the UK but who were removed under this process would be able to return the UK once they had completed their sentence overseas, and if not, why not. In those circumstances, if prisoners had not already lost their indefinite leave to remain by reason of their criminality, we would not be looking to transfer them. If leave had been removed, they would not be able to return and would be on the warnings index. So it depends on the decision we make about that. The last question—the noble Baroness will tell me if I have not covered any of them—was how the new scheme would impact on those subject to the early release scheme. The amendment has no impact on the removal of foreign national prisoners under the early removal scheme. If a prisoner is transferred under a prisoner transfer agreement, the United Kingdom release arrangements cease to apply on transfer. If a prisoner remains in England and Wales at the point in a sentence at which he becomes eligible for early removal, then he will be considered for removal under the scheme in the normal way. I believe that I have dealt with all the questions and the noble Baroness will be delighted to know that if she has any further questions I will be happy to deal with them now or to write to her and place a copy in the Library. I hope that I have dealt with the questions that were likely to excite the noble Lord, Lord Dholakia, too. I beg to move.