The
Committee consisted of the following
Members:
Chairman:
Mr.
David
Marshall
†
Blunt,
Mr. Crispin
(Reigate)
(Con)
†
Browne,
Mr. Jeremy
(Taunton)
(LD)
†
Clappison,
Mr. James
(Hertsmere)
(Con)
†
Cunningham,
Tony
(Workington)
(Lab)
†
Dobbin,
Jim
(Heywood and Middleton)
(Lab/Co-op)
†
Garnier,
Mr. Edward
(Harborough)
(Con)
†
Hands,
Mr. Greg
(Hammersmith and Fulham)
(Con)
†
Hodgson,
Mrs. Sharon
(Gateshead, East and Washington, West)
(Lab)
†
Hughes,
Simon
(North Southwark and Bermondsey)
(LD)
†
Mactaggart,
Fiona
(Slough)
(Lab)
†
Sheridan,
Jim
(Paisley and Renfrewshire, North)
(Lab)
†
Sutcliffe,
Mr. Gerry
(Parliamentary Under-Secretary of State for the
Home
Department)
†
Vis,
Dr. Rudi
(Finchley and Golders Green)
(Lab)
Emily
Commander, Committee
Clerk
†
attended the Committee
European
Standing
Committee
Tuesday 20
February
2007
[Mr.
David Marshall
in the
Chair]
European Enforcement Order and the Transfer of Sentenced Persons
4.30
pm
The
Parliamentary Under-Secretary of State for the Home Department
(Mr. Gerry Sutcliffe):
Good afternoon,
Mr. Marshall, and good afternoon to the Committee. I hope
that this will be an interesting subject for discussion.
The draft framework decision on
the application of the principle of mutual recognition to judgments in
criminal matters imposing custodial sentences or measures involving
deprivation of liberty for the purpose of their enforcement in the
European Union has been under scrutiny by the European Scrutiny
Committee and the Select Committee on the European Union in the House
of Lords since February 2005. I am grateful for the attention that both
Committees have given to the initiative and for the opportunity to
debate its content today.
The United Kingdom has been
repatriating prisoners since 1985, when it ratified the Council of
Europe convention on the transfer of sentenced persons. The convention,
which has been ratified by more than 60 countries, is now more than 22
years old and reflects the time at which it was negotiated. At that
time, the number of foreign nationals imprisoned abroad was relatively
low and the convention simply provided a mechanism to enable those
prisoners who wanted to serve their sentences in their own country to
do so. Transfer under the convention is voluntary, and requires the
consent of both states involved as well as that of the prisoner
concerned.
Since the
inception of the convention, thinking on international prisoner
transfer has moved on. In 1997, the Council of Europe put in place an
additional protocol to the convention that dispensed with prisoner
consent in two areas: when the prisoner would otherwise be deported at
the end of the sentence or when the prisoner had fled. The protocol
established the principle of transfer without prisoner consent and 31
countries have signed up to its principles. The European Union prisoner
transfer agreement is intended to build on that foundation. It extends
the circumstances in which a prisoner can be transferred without his
consent and for the first time places an obligation on the receiving
state to accept back its own nationals. The Government believe that
those two principles, together with stringent time limits for dealing
with requests and arranging the transfer of a prisoner, create
significant added value over and above the existing prisoner transfer
arrangements.
The
Government firmly believe that where possible a prisoner should serve
his sentence in his own country. There are many benefits to that.
Transfer alleviates the
language, cultural and visiting difficulties experienced by prisoners
who are imprisoned abroad. It enables a prisoner to benefit from
offender behaviour programmes that are appropriate to the country in
which he or she will eventually reside, aiding successful
rehabilitation. Transfer during the sentence can also offer significant
public protection benefits. It ensures that the receiving state is
aware of the prisoner concerned and the circumstances of the offence
and that it can, where appropriate, also ensure that the prisoner is
supervised following release—options that are not available if a
prisoner is simply deported at the end of the sentence or if they
return voluntarily. For those reasons, the Government wanted to agree
the measure as soon as possible to enable the benefits to take
effect.
The
Government also believe that a prisoner should not be able to frustrate
a transfer that brings such advantages and that has been properly
agreed between states simply by withholding consent. The framework
decision is in line with the amended Repatriation of Prisoners Act
1984, which clarifies the circumstances in which a prisoner is required
to consent to transfer. Those changes were approved by Parliament and
the Government now intend to seek to renegotiate our existing prisoner
transfer agreements to provide for transfer without prisoner
consent.
I also wanted
to raise at this stage the fact that the Government participated in a
general approach at the Justice and Home Affairs Council last Thursday.
I am aware of the Committee’s concerns about the
Government’s participating in that way while the proposal is
still subject to parliamentary scrutiny. I acknowledge that, where
possible, scrutiny should be completed before participation in a
general approach. I regret that in this case it was not possible to
hold the debate prior to the Council and I want to reassure hon.
Members that we have the highest regard for the scrutiny process. At
the Council on Thursday the UK maintained its parliamentary scrutiny
and reserved its right to reopen debate if necessary.
The
Chairman:
We now have until half-past 5 for questions to
the Minister. I remind hon. Members that those questions should be
brief and asked one at a time, and that there is likely to be ample
opportunity for all hon. Members to ask several
questions.
Mr.
Edward Garnier (Harborough) (Con): May I preface the first
of a number of questions by welcoming you to the Committee,
Mr. Marshall?
Although it depends on what you
allow to me, Mr. Marshall, I am afraid that I have a number
of questions that I want the Minister to answer during the course of
the afternoon. The first concerns the list of offences under article 7
of the draft framework, which contains some obvious offences that would
attract serious and lengthy custodial sentences in this country. I
declare an interest as a Crown Court recorder who occasionally
sentences people to prison in courts here in London.
The one offence that puzzles me
in respect of foreign national prisoners is robbery. I see that
organised or armed robbery is in the list. However, disorganised
robbery—that is, street muggings, which are committed by quite a
number of foreign nationals in Oxford street and other crowded parts of
the capital—appears not to
be listed. A huge number of foreign nationals are sent to prison for
that sort of offence because they are not susceptible to community
punishment. What does the Minister have to say about
that?
Mr.
Sutcliffe:
Not a great deal. One of the reasons why the 32
offences have been agreed is that there is mutual recognition of them.
We are trying to avoid a single European legal system that would
sentence uniformly. There is a recognition that individual
jurisdictions have their own criminal laws. The offences listed are
those for which it is obvious that there can be mutual recognition. The
list is not exhaustive, but it sets out the recognised
offences.
The
Chairman:
Mr. Garnier, you raised with me the
number of questions and the order in which they are to be taken. Most
Chairmen prefer to go from Member to Member. On the other hand, I
understand your desire to question thematically, so I shall allow you
two more, after which I shall take other people’s. You will, of
course, have the opportunity to come back in after other
Members.
Mr.
Garnier:
Thank you, Mr.
Marshall.
The
Chairman:
Please keep your questions
brief.
Mr.
Garnier:
My last question was lengthy and the answer did
not address it; I shall try to ask my next one rather more succinctly.
Which will be the lead Department in deciding which foreign prisoners
should be sent abroad? Will it be the Department for Constitutional
Affairs or the Home
Office?
Mr.
Sutcliffe:
The Home
Office.
Mr.
Garnier:
Who in that Department will liaise with the
sentencing courts, the Prison Service and the probation
service?
Mr.
Sutcliffe:
Procedures are in place and I see no difference
in those processes. Clearly, when an agreement is reached and the
enforcement is made for the arrangement, if an arrangement is reached,
those processes will have to be updated. However, the existing
procedures are in
place.
Mr.
Jeremy Browne (Taunton) (LD): At present, the number of
prisoners from other European Union states in British prisons is three
times greater than the number of British citizens in prisons elsewhere
in the European Union. Why is that the case? Was it factored into the
Minister’s considerations when the Home Office predicted the
numbers from new EU entrant states who would live and work in the
United Kingdom? What effect does he think the measures will have on
that imbalance?
Mr.
Sutcliffe:
I am not aware that that was factored in when
we considered the widening of the European Union. However, as I tried
to say in my opening remarks, the Government think that it would be a
reasonable step to try to send back foreign national prisoners to
their countries; they could serve their sentences in far more harmonious
conditions, given the difficulties affecting prisoners and prison
visitors. I understand that there are 2,432 nationals from other EU
member states in our
prisons.
Dr.
Rudi Vis (Finchley and Golders Green) (Lab): The order
uses these words:
“for
the purpose of their enforcement in the European
Union”.
A number of
nation states are associated with the European Union; I have Turkey
particularly in mind. Could it not be
included?
Mr.
Sutcliffe:
Thirty-one countries have ratified the
agreement so far. I am not aware of any discussions with the Turks on
this matter; if there have been, I shall write to my hon. Friend and
explain the
circumstances.
Mr.
James Clappison (Hertsmere) (Con): Mr.
Marshall, I associate myself with my hon. and learned Friend’s
remarks: it is a pleasure to serve under your chairmanship this
afternoon.
I
appreciate the courtesy and concern that the Minister has shown the
Committee, and his concern about European scrutiny. The problems with
scrutiny as far as this issue is concerned are not the responsibility
of this Minister. I shall make remarks on that later, if I may,
Mr.
Marshall—
The
Chairman:
Briefly,
please.
Mr.
Clappison:
Certainly. I have a brief question about
scrutiny. The Minister told us that the issue has been the subject of
general agreement. Under the relevant Cabinet Office guidelines on how
Ministers should proceed after general agreement has been given, would
the Government be prepared to reopen negotiations on any question
raised in this Committee or are they, as I suspect, precluded from
doing so by that Cabinet Office
guidance?
Mr.
Sutcliffe:
I said in my opening remarks that we reserved
our right to reopen the debate if necessary, but the
Government’s position was to get a good agreement quickly, if
possible. Three processes are involved in reaching an agreement in the
European Union: a general approach, a political agreement and then
adoption. Therefore, there are still a number of processes to go on
this issue. It is important that we try to get something working
quickly that is beneficial to our country and other member
states.
Mr.
Greg Hands (Hammersmith and Fulham) (Con): I join
colleagues in welcoming you to the Chair, Mr. Marshall. The
letter from the Chairman of the European Scrutiny Committee to the
Under-Secretary of State for the Home Department, the hon. Member for
Enfield, North (Joan Ryan), which is on page 111 of our pack, deals
with Poland’s objections to signing the document. Will the
Minister outline what those concerns are or were and whether the UK
agrees with them?
Mr.
Sutcliffe:
I am afraid that I do not have that information
to hand. Thirty-one countries have ratified the agreement so far, but
more work clearly needs to be done to get other member states to be
supportive. I would be happy to answer more fully if the hon. Gentleman
points me in more detail towards the letter that he is talking
about.
Mr.
Browne:
Pursuant to that question, does the Minister agree
that one reason for Poland’s objections could be that it has an
even more prisoners per head of population than the UK? Is it not
unable to accommodate any more prisoners at present and keen to offload
as many as it can on to other nation states? Might that not have been
one of the motivations behind its position in the
negotiations?
Mr.
Sutcliffe:
As I understand it, Poland had concerns about
its ability to deal with the matter, but it has agreed to look at it
again. That goes back to the point that I tried to raise earlier: this
is a framework agreement, which builds on the past, and we are trying
to encourage member states to understand why it is important to
repatriate prisoners to home countries. Clearly, some still have
concerns.
Mr.
Garnier:
What is the estimated annual cost of the
programme for the British taxpayer?
Mr.
Sutcliffe:
Again, I do not have the figures to hand and I
shall write to the hon. and learned Gentleman. There will, however, be
a saving in terms of extra on-costs to prisoners and their families.
That relates to things such as visiting and the basic things that we
would expect prisoners in the UK to receive. However, this is not a
cost-saving exercise; it is about doing the right thing in terms of the
treatment of prisoners.
Mr.
Clappison:
For offences other than the 32 listed, the
Government have the option to require dual criminality. Do they propose
to exercise that option?
Mr.
Sutcliffe:
Again, we have to be clear about the issues
affecting dual criminality, which was a major concern to members of the
European Scrutiny Committee in the Commons. The definition of dual
criminality, in particular, was a concern. We need to look at the issue
and we are prepared to investigate it further to ensure that there is a
common understanding of the offences. As I said, 32 offences have been
agreed, and we need to look further at what can be done in
future.
Mr.
Garnier:
I think that we all know the definition of dual
criminality, but my hon. Friend the Member for Hertsmere is concerned
about the offences that come within it. What, however, would happen to
a British offender who was sentenced abroad to a term of imprisonment?
Under the proposed procedure, he would be sent back to this country
against his will. What is the Home Office’s view on
that?
Mr.
Sutcliffe:
The spirit of the agreement is that we would
take that individual back and that it should not be up to an individual
prisoner to frustrate that
transfer. Clearly, that is the change that has been sought in the
agreement, so that person would come back to the
UK.
Jim
Sheridan (Paisley and Renfrewshire, North) (Lab): Does the
Minister agree that it is deeply offensive to the Polish people to
suggest that the only reason they are coming to this country is that
the prisons are full in Poland?
Mr.
Sutcliffe:
If that was the intention of the remark, it
would be deeply offensive, but I do not think that it
was.
Mr.
Garnier:
In answering a different question, the Minister
mentioned savings. What is the estimated annual saving to the British
prison service from exporting foreign
prisoners?
Mr.
Sutcliffe:
As I said, the basis of the proposal was not
cost. I am sure that those figures are available, and I shall write to
the hon. and learned Gentleman in due
course.
Simon
Hughes (North Southwark and Bermondsey) (LD): Is there any
distinction in the proposals between the treatment of somebody who has
permanent residence in a foreign country, although they remain a UK
national—or vice versa—and somebody with less than full
residential
rights?
Mr.
Sutcliffe:
The important distinction is about where that
person resided prior to the offence and what their residential
qualification is. In the agreement that we are trying to pursue, we are
saying that a receiving state should not be able to prevent somebody
from arriving or being received, unless there are good grounds for
doing so. Even though a person was a member of the community and was
born in the country, if they resided elsewhere, that would be a reason
for not accepting
them.
Mr.
Crispin Blunt (Reigate) (Con): The Minister has expressed
his regret on the scrutiny issue and will have noted the opinion of the
Chairman of the European Scrutiny Committee, which is that because the
debate and the general approach took place before the debate in this
Committee, the members of that Committee
“will regard such participation as
being in breach of the spirit of the scrutiny reserve
resolution.”
The Minister
has made clear his regret to the Committee. Are we entitled to conclude
that the reason why that has happened is the pressure on the
Department, and therefore its inability to bring forward such a debate
for Parliament in a timely manner, or is there another reason for the
unsatisfactory state of affairs?
Mr.
Sutcliffe:
As I have said, I regret the circumstances and
apologise to the Committee. However, that would not stop us from
reopening the issue, if the Committee or the Government felt that that
was appropriate. The decision has nothing to do with the alleged
stresses and strains in the Department.
The issue was about diaries and the ability to get the meeting in place.
Offers were made to try to put the Committee in place, but it could not
be accommodated in the schedule.
Mr.
Clappison:
Is the Minister aware that his handsome offer
of an apology is welcome? It is the first apology that has been
forthcoming in correspondence with Ministers on the vexed question of
scrutiny. Will he confirm that the Government were warned as long ago
as 29 November 2006, which I think is the date of the letter from the
European Scrutiny Committee to which my hon. Friend the Member for
Reigate has adverted? The European Scrutiny Committee thought that
there were important issues that were worthy of debate in this
Committee. Since then the Government have participated in two European
Council meetings, at the second of which they reached a general
agreement. Is the Minister saying that it was not possible to organise
a parliamentary debate at any time between 29 November and 16
February, so that the House could give its
opinion?
Mr.
Sutcliffe:
I have already apologised to the Committee. I
understand that the issue was about diaries, but if I am wrong, I shall
write to Committee members. I think that there was an attempt to try to
have the debate before the various meetings that were held, but that
did not happen. We regret that, and I apologise to the
Committee.
Mr.
Garnier:
Who would be the designated competent authority
in this
country?
Mr.
Sutcliffe:
I assume that that would be the Home
Office.
Mr.
Garnier:
Let me try again. As the Minister knows, under
the convention a state has to appoint a designated competent authority.
The Association of Chief Police Officers is the competent authority for
receiving records of foreign criminals about whom information is given
to this country. “The Home Office” is a very wide
term.
Mr.
Sutcliffe:
The answer is the Home Office—I
was right—but within the Home Office, it is the National
Offender Management Service.
Simon
Hughes:
Is there a timetable in the provisions, so that
where a foreign national was convicted in the UK and sent to prison,
and the intention was for them to be returned to their own country,
there would be a guaranteed maximum time in which a provisional
decision to send them could be made, the family or the prisoner could
make any representations that it would be inappropriate to do so, for
the reasons that we have discussed, and the final decision could be
taken? Any such proposal should have a fixed, maximum time limit, so
that there is some certainty about the time in which the transfer will
happen.
Mr.
Sutcliffe:
In the discussions there is a process, but
there is no appeals mechanism as the hon. Gentleman has set out, so
there will be no determination of an
appeal. There will be an opportunity for a judicial review of a
decision, but there will be no appeals
process.
Fiona
Mactaggart (Slough) (Lab): Can foreign national prisoners
in this country take part in rehabilitative activities towards the end
of a prison sentence in open prisons and so on? Should we take account
of that issue when considering whether prisoners should serve their
sentences in the countries in which they will live after their
completion?
Mr.
Sutcliffe:
My hon. Friend has raised an important
and—given her experience—relevant point. One key reason
why we are involved in the scheme is to try to ensure that those
programmes are in place in the home country. However, there are
provisions in our system to try to support and rehabilitate offenders,
wherever they are
from.
Mr.
Browne:
Will the Minister clarify the position on people
who hold dual nationality in two separate EU member
states?
Mr.
Sutcliffe:
It would be for the two states to agree on the
receiving state’s view about dual nationality. We already hold
prison transfer agreements with non-EU states for people who hold dual
passports.
Mr.
Blunt:
My point is a slightly disjointed way of returning
to scrutiny. The Minister was kind enough to indicate that there was a
problem with diaries. Will he confirm either that the diary problem was
his or that there was another
problem?
Mr.
Sutcliffe:
The hon. Member for Hertsmere has said that I
was not the appropriate Minister to be involved in such decisions. I
can give only my view of the reasons why the Committee will not discuss
the matter, and I understand that they related to diary
commitments.
Mr.
Blunt:
Was that the Minister’s
diary?
Mr.
Sutcliffe:
Diary commitments for Committees as well as for
Ministers.
Simon
Hughes:
If I may return to the question of a timetable, I
understand from the Minister’s earlier reply that there is no
formal appeals system. However, once such a decision has been taken, is
there a maximum time in which it will be implemented? The reason why I
ask is that there would be uncertainty about cost and an undermining of
the process if the UK authorities decided, for example, to send back an
Estonian prisoner to Estonia, but because of delays at the other end,
with people saying “We are not ready to receive them
yet,” the decision was either never implemented or implemented
so late as to be almost meaningless due to the length of the
sentence.
Mr.
Sutcliffe:
Time scales will be set out in the agreement to
ensure that that does not happen.
Mr.
Garnier:
The convention allows the offender who is about
to be transferred to present reasons why he should not be transferred.
Is the decision about whether he will be transferred administrative and
made by officials, or is it made by a court? If it is made by a court,
what assessment has the Minister’s Department made about the
cost of legal
representation?
Mr.
Sutcliffe:
NOMS will make the decision, which it will
refer to Ministers to make the final decision, so no court costs will
be incurred.
Mr.
Clappison:
Without necessarily adopting the following
concerns, I note that the prison organisation, Prisoners Abroad, has
expressed some concerns about transfer without consent. Ministers have
suggested that those concerns have been addressed. Will the Minister
tell us whether Prisoners Abroad remains concerned about the provisions
and objects to
them?
Mr.
Sutcliffe:
There will be concern if there is any
substantial change from the arrangements whereby the prisoner has to
agree to the transfer. I fully understand where Prisoners Abroad is
coming from, but in my view, its concerns have been addressed in the
discussions about the agreement. Whether those concerns have been
addressed to its satisfaction, only it can
say.
Mr.
Garnier:
These decisions are now to be made by NOMS. Are
they to be made in
public?
Mr.
Sutcliffe:
We would always hope to be transparent in
expressing how decisions are taken; we were the first Government to
introduce freedom of information. The system will be as it is now:
recommendations will be made, but Ministers will make the final
decision. The issues that the hon. Member for North Southwark and
Bermondsey raised about appeal mechanisms and whether the right
decision was made would be in the public domain for people to
challenge.
Simon
Hughes:
Will there be any differentiation of adults and
prisoners who are not over 18, but are in adult prison estates and are
therefore not youth offenders?
Given
that courts currently have the power to order the deportation of
foreign nationals, if this system were introduced, would the
implication be that there was no necessity for such decisions to be the
job of the judge? In every case involving a foreign European Union
national, deportation would effectively be considered as a matter of
course and they would be deported back to a prison in their own
country.
Mr.
Sutcliffe:
I am not sure whether I follow the logic of
that point. There is no distinction in terms of adults or youths. The
issue would not be deportation, but transfer of prisoners. As this is
an important point, however, I shall write to the hon. Gentleman and
set out clearly what the arrangement would
be.
Simon
Hughes:
I am not trying to catch the Minster out, but I
should point out that the other linked issue is that when people come
into this country with conditional leave, the conditions that they are
given state that their ability to stay here will depend on their
not breaking the law or committing a serious offence. They are warned
that if they are likely to commit a serious offence, their leave can be
revoked. EU citizens have full rights to be here all the time and have
full leave, but for those who do not have full leave, can the Minister
clarify whether, as part of the process when people arrive, there is a
clear obligation on the authorities to say, “If you break the
law, you may risk going back to prison at home and in any event you
will have effectively revoked your right to
stay”?
Mr.
Sutcliffe:
I will set out the position for the hon.
Gentleman, because given the freedom of movement, it is important to
state what the process is. I shall ensure that members of the Committee
will receive a copy of the
correspondence.
Mr.
Hands:
On page 119 of the document pack, there is a letter
from the Minister’s colleague, Baroness Scotland, which returns
us to the question of dual criminalities. Why did she specifically
refer to the offence of holocaust denial—it is an offence in
many EU countries—as an issue that comes to light in the event
of dual
criminality?
Mr.
Sutcliffe:
As the letter states, the Government have not
made a decision in relation to article 7 and the proposition that dual
criminality is not required in certain cases. That was something that
the European Scrutiny Committee asked about, and I stand by the letter
sent by Baroness Scotland to its
members.
Jim
Sheridan:
My hon. Friend will be aware of what some
thought was the aggressive tone of questioning from the Opposition, but
will he confirm that migrant workers coming to this country will be
treated exactly the same in legal terms, will not be discriminated
against and, if they become prisoners, will be treated in the same way
as every other prisoner in this
country?
Mr.
Sutcliffe:
I wholeheartedly agree with my hon. Friend. The
economic prosperity of the country depends on legal migrant workers
coming to the UK and participating in our economy, and those people
will be treated in the same way as anybody else. It is important that
people’s human rights are also considered and that we are
consistent in the application of human rights
legislation.
Mr.
Clappison:
When do the Government expect to reach a
decision on the question of dual
criminality?
Mr.
Sutcliffe:
When we can reach agreement with member states.
There are 32 states in place and it seems that the earliest opportunity
for an agreement to come into force would be in
2009.
Mr.
Hands:
On dual criminality and specifically on holocaust
denial, when the letter to which I have referred was written, David
Irving was detained in an Austrian jail. He has since been released.
Has the Minister thought through the implications of allowing those who
have been convicted of holocaust denial in other EU countries to be
returned to the UK where it is obviously not an offence, but where
there would be a strong public interest in why that person had been
returned?
Mr.
Sutcliffe:
That is clearly an important point that we
should take into consideration. That was the tone of Baroness
Scotland’s letter. The hon. Gentleman is right; the judgment
came after the letter, and we need to look at the implications of what
went on and how we deal with the issue. I am interested to see that
Conservative politicians want a Europe-wide legal system to ensure dual
criminality and a consistency of offences. We have been able to agree
on 32 offences. More are outstanding, one of which the hon. Gentleman
has just raised, and we are considering how best to move
forward.
Mr.
Garnier:
I advise the Minister not to clutch at straws; I
would not clutch at that one right now. In the event of a dispute over
someone’s place of residence or the question whether he has been
resident in an EU state for five years, who will resolve the
matter?
Mr.
Sutcliffe:
As we have the agreement, the presumption is
that the member state would receive the prisoner and that there would
not be any disputes. Clearly, a dispute about residence and so on would
be a reason for the decision not to be taken. I am sure that there
would be an ability within the process to resolve the matter through
the European procedures that are in
place.
Simon
Hughes:
I apologise if the Minister has already dealt with
this point, but I do not think that he has. A foreign prisoner who is
convicted here, for example, may be given a 10-year sentence. Under the
present regime, that will probably mean that he serves five years in
custody and five years on licence while serving the sentence out in the
community. In his home country, however, he may have to spend two
thirds or three quarters of the sentence in custody. Does such a
differential requirement for serving a period inside as opposed to on
some form of licence count as a factor in the
consideration?
Mr.
Sutcliffe:
No. That would not be the intention, because it
would undermine the basis of trying to reach this type of agreement. We
would end up with a situation in which prisoners tried to shop around
for the best result.
Mr.
Garnier:
If a British national serving his sentence in a
foreign jurisdiction does not agree to his being transferred back to
Britain to serve his sentence, does he have a right of access to the
British courts or only to the system in the sentencing
country?
Mr.
Sutcliffe:
I think that it would be the system in the
sentencing country, but if that is not the case, I shall ensure that
the hon. and learned Gentleman finds out. Indeed, I now find that it is
the case that it would be the sentencing
state.
Mr.
Garnier:
I want to return to a question that the hon.
Member for Slough asked the Minister a moment ago, because I am not
entirely sure that I understood the response. Once the system comes
into operation, we shall have to build up a practice of understanding
the abilities of overseas jurisdictions to provide social
rehabilitation courses for foreign nationals sent back to those
countries. What plans has the Minister set in motion to ensure a proper
assessment of the ability of receiving countries to provide education,
training, drug rehabilitation and other forms of rehabilitation that
fit within the definition of “social
rehabilitation”?
Mr.
Sutcliffe:
Again, it is rather strange that the
Conservative party, which has opposed Europe for many years, is now
trying to get standardisation in the treatment of prisoners throughout
Europe. We are trying to ensure through European discussions that the
proper considerations are in place in relation to the issues we talked
about. We discussed ways of ensuring that, when prisoners are
transferred, part of the transfer is to the benefit of rehabilitation
programmes. That is part of the process of rebuilding lives with regard
to family ties and other issues. If there are language difficulties, it
is better for a prisoner to serve their sentence in their own nation.
We have also said that we will consider all the conventions in order to
ensure that adequate protections and support mechanisms for prisoners
are in place, but we believe that this framework agreement is a good
thing and we hope that the Committee
agrees.
Simon
Hughes:
There is a Council of Europe convention, which
obviously covers more than the EU countries. What things would this
agreement allow that are not currently allowed in relation to Council
of Europe countries that are also EU countries? Given that that
convention covers more countries, is it not a sufficient basis on which
to proceed, without going down the road that is
proposed?
Mr.
Sutcliffe:
We see this as a progressive move in the sense
of trying to rehabilitate and support prisoners, and I hope that
Committee members share our view. More than 60 countries were involved
in the initial agreement and 32 have agreed the principles of what we
are trying to do. We are trying to explain to the countries that are
not involved the rationale of how transferral without consent should
operate. Clearly, the countries that are not signed up to the measure
will be dealing with the existing procedures, which involve voluntary
arrangements. We are trying to convince other states that this measure
needs to go
forward.
Jim
Sheridan:
Does my hon. Friend agree that the fundamental
principle of prison rehabilitation in this country is to prevent people
from reoffending, regardless of their gender, race and religion? Does
he also agree that it would be inappropriate for either indigenous
people or migrant workers to exploit their term in prison by writing
books and making money from
it?
Mr.
Sutcliffe:
I think that I agree with the thrust of what my
hon. Friend says. He will know that we are considering rewards for book
publications and a variety of other issues relating to prisoners, and
we are out to consultation on that. I agree that we need to ensure that
rehabilitation is the key to what we are trying to achieve. I hope that
Committee members will take the opportunity next week to support the
Offender Management Bill, which will give us the opportunity to deal
with the rehabilitation of offenders in the
UK.
Mr.
Garnier:
I want to return to the point about NOMS decision
making, because only when the Minister reviews the decision is he
susceptible to judicial review himself, so that is the only time when
an outside body—that is, a court—can have an overview of
what he has been doing. Clearly, the Home Office will be represented at
the administrative court for the judicial review. What assessment has
he made of the cost of providing representation to the applicant for
judicial review, who in most cases will be the offender who is the
subject of the removal
order?
Mr.
Sutcliffe:
Again, I am not aware that any costs associated
with that issue have been calculated, but if they have been, I will
ensure that the hon. and learned Gentleman knows and I will write to
the
Committee.
Mr.
Garnier:
This convention deals with the 31
members of the agreement, which obviously takes it beyond the European
Union by a few countries, but it appears from this morning’s
newspapers that the Republic of Ireland is to be outside any
deportation arrangements that we may have. Can the Minister confirm
that?
Mr.
Sutcliffe:
There is a unique relationship with Ireland, as
the hon. and learned Gentleman knows, and we will continue to review
how our two systems work. With regard to the agreement, we are talking
about the 27 European Union countries
only.
Mr.
Browne:
This point has been touched on in earlier
questions. Will the Minister enlighten the Committee as to whether the
United Kingdom Government made any concessions to the Polish Government
to secure their acceptance of this package of
measures?
Mr.
Sutcliffe:
As I have said, the Poles agreed the
principles. There was an issue about the time scale in relation to the
Poles, but I am not aware of any concession. The hon. Gentleman will
know that in European committees—as a former Employment
Minister, I have had many happy occasions in Brussels and Strasbourg
talking about the working time directive—there are discussions
about how agreements are reached. The Poles agreed with the measure in
principle, but had a concern about the time scale, and we were prepared
to support their position on the time
scale.
Mr.
Clappison:
Would it be open to a foreign prisoner who was
to be transferred from the UK to bring an action under the Human Rights
Act 1998? What effect would bringing such an action have on his
transfer? Would it go ahead or be delayed?
Mr.
Sutcliffe:
There is always the opportunity for people to
take a case to the European Court, and it would be up to that Court to
decide on whether the case was relevant. Alternatively, the competent
authorities would decide. The transfers would go ahead. Things would
depend on what the competent authorities thought about the prospects of
the case, but we would try to ensure that discussions took place. If
there was a problem, a delay could occur. We would not want a
frustration of the arrangements by prisoners or by agents of those
prisoners.
Mr.
Garnier:
I want to get clear in my mind a point
about social rehabilitation. I fully accept that it is easier for an
overseas offender to serve out his prison sentence close to his family
and in a prison whose first language is his own. My concern relates to
the fact that so many of the prisoners in this country are in prison
because of a connection with illegal drugs. Foreign prisoners will go
back to their home countries where they will be close to their family
and where they will be able to speak their own language as the first
language. Are those social rehabilitation factors that trump the
absence of any drug rehabilitation courses in that particular country
of a standard that we would think necessary for prisoners in our own
country?
Mr.
Sutcliffe:
We would clearly want to see what was in the
best interests of the individual. That would be the first port of call.
The transfer arrangements that have been negotiated give opportunities
for transfers to take place. I have mentioned how social
responsibilities on family ties, language and other things could be
fulfilled by prisoners serving out
sentences.
The hon.
and learned Gentleman chided the Government during consideration of the
Offender Management Bill for not treating the issue of drugs seriously
in terms of the UK approach. I am pleased to hear that he has changed
his tune and that he thinks that we are leading the way in drug
rehabilitation. Supporting the prisoners would be a matter for the
receiving state. The basis of these European agreements is raising
standards and ensuring that people have an opportunity for
rehabilitation.
Jim
Sheridan:
Much reference has been made to Polish workers.
Is my hon. Friend in a position to give us an idea, either today or
later in writing, of how many Polish workers are in prison in the UK
compared with the number of Polish people who are working in the UK? He
might take the opportunity to remind the Committee that more Polish
workers have been killed in the UK by indigenous people than those of
any other nationality in Europe.
Mr.
Sutcliffe:
I am able to help my hon. Friend now. As of 31
December 2006, some 278 Polish nationals were held in prison in England
and Wales, and he will be pleased to learn that only nine Poles were
held in Scotland. We do not have the figure for Northern Ireland. I
agree that legal migrant workers, particularly Polish people, bring a
great benefit to the UK. If my response does not satisfy him, my
Department will write to him in greater
detail.
Mr.
Clappison:
Let us turn around the example that my hon. and
learned Friend the Member for Harborough gave a moment ago and consider
the case of a British prisoner serving a sentence in a foreign prison.
If they had substantial and deep-rooted family connections in that
country—I believe it is known as the issuing country for these
purposes—would it be open to that prisoner to make
representations about serving the sentence in the issuing country
rather than being transferred back to the UK, given that all his family
and connections would be in that country?
Mr.
Sutcliffe:
That would be a consideration. I would expect
some consideration of how such individuals see their place of
residence, rather than just sending them back because they are
nationals of the other country. We would expect discussion to take
place. We would seek the opinion of the prisoner about where he or she
thought their residence was, but we would not allow that to frustrate
us in trying to achieve the transfer. Yes, we would be moving away from
a voluntary position, but we would seek the opinion of the prisoners on
the
issue.
Mr.
Garnier:
On social rehabilitation, will the assessment
made by NOMS of the suitability of the receiving country’s
criminal justice system be based on reports from our embassies or high
commissions in the intended receiving country? Will it be specific to
the case before the decision maker, or will evidence about the
programmes and other facilities available for social rehabilitation be
gained through some other external and non-official means? And to what
extent will the facts as found by the decision maker be disputable by
the offender whose fate is in
question?
Mr.
Sutcliffe:
We are talking about a framework agreement,
which will not come into operation until 2009 at the earliest. I have
told the Committee about the need further to discuss the processes that
will have to be put in place. I would expect us to consult other member
states about what rehabilitation programmes should be in place and how
people would fare under those programmes, which is one reason why we
need a framework
agreement.
Jim
Sheridan:
On social rehabilitation, has my right hon.
Friend or his Department carried out any assessment of the cost to
society if social rehabilitation does not take
place?
Mr.
Sutcliffe:
Again, my hon. Friend has made a pertinent
point—he has also promoted me, which is good. The whole purpose
of the arrangements is to ensure that punishments are put in place for
people— putting them in prison—but there is an element of
social rehabilitation, which is true of all
cases.
The hon. and
learned Member for Harborough will know from his role as a judge that
there are two elements to sentencing. One is to offer up
people’s debts to society, and the other is to rehabilitate them
back into society—the cost of not doing so is tremendous. He
will know that the cost of a prison place in the United Kingdom for an
adult prisoner is £40,000. He will know also that the United
Kingdom puts more people in prison per head of population than most of
our European counterparts, which is a key consideration. In the context
of today’s discussion, we think it perfectly reasonable to enter
into a framework agreement that will give us the opportunity to allow
prisoners to serve their sentences in their home
country.
Mr.
Clappison:
If those concerned want to make representations
about where they are to serve their sentences, do they make them to the
issuing state—the state in which they were convicted, which may
want to
send them back to their own country—or to the executing state of
which they are nationals, even though they may have some connections
with the issuing
state?
Mr.
Sutcliffe:
It would be the issuing
state.
The
Chairman:
If there are no more questions, we will now
proceed to debate the
motion.
Motion
made, and Question proposed,
That the Committee takes note
of European Union Document No. 13080/06, Draft Council Framework
Decision on the application of the principle of mutual recognition to
judgments in criminal matters imposing custodial sentences or measures
involving deprivation of liberty for the purpose of their enforcement
in the European Union; and supports the Government’s intention
to secure adoption of this agreement.—[Mr.
Sutcliffe.]
5.19
pm
Mr.
Garnier:
From our point of view and as a matter of
principle, we support the transfer of foreign prisoners back to their
home country whenever possible, provided that it can be done in a
humane way. It is clearly right, no matter how appalling their
offences, that prisoners should be treated as human beings. If they can
be properly punished and rehabilitated, and if society in this country
and in the country of the person concerned can be assured that public
protection will be provided by the custody arrangements under the
convention, my party and I would support that
approach.
This short
examination session has shown that it is the huge amount of detail that
will make our adherence to the convention work or not. The Minister
kindly said that he would write to us about this, that and the other,
but I would like Ministers occasionally to come to Committees and to
present themselves for scrutiny before the House of Commons when the
details of the matter have been set out in advance of the scrutiny. I
do not blame the Minister personally—he is as much a victim of
our system as the rest of us—but he is the nearest we can get to
someone who is allegedly accountable to the public, through us, for the
policy and the conduct of the Government. Nice bloke that he is, it is
bad luck for him that he is here. That is the way we must do it, but I
earnestly hope that we can find a better way of dealing with such
matters—I have had discussions about this with you,
Mr. Marshall, in previous Committees—because this is
not a satisfactory way of scrutinising our adherence to European
directives or conventions.
None the less, it strikes me
that an important underlying issue is that, just as in other European
Scrutiny Committees that we have attended and in relation to the
promotion of British legislation by the Minister’s Department,
there is too much vagueness and insufficient detail, so the public do
not know, as a result of listening to this or other Standing
Committees, what will come out at the end. For example, the Minister
has mentioned the Offender Management Bill, which is essentially a Bill
to allow the Home Secretary to make rules and regulations. The public
do not know, because we have not seen the draft regulations or the
various protocols and other relevant documents that will flesh out the
statute, what will
occur in due course. The Minister has said, fairly, that he would write
to us, and we look forward to the flood of mail in the next few
days.
I plead with
those who run these matters—it is certainly not the Opposition
and I doubt whether it is the Liberal Democrats—to enable us to
look at the procedures of this sort of Committee to ensure that all
Members of Parliament, who do our best for our constituents whether we
are Ministers or shadow Ministers, can feel confident that our job in
legislating and making arrangements that glue us to treaties or
conventions inside or outside the European Union are transparent,
comprehensive and comprehensible. I am not convinced that that is the
case at the moment.
As
I have said, as a matter of principle—subject to learning a lot
more about the detail of what is entailed, particularly in relation to
the rehabilitation of offenders when they are returned to their home
state, and whether social rehabilitation means something different in
European Union language from what it might mean to someone involved in
the criminal justice system in this country—Conservative Members
are content to let this procedure, whatever it is, proceed. I am
grateful for the attendance of my hon. Friends and other hon.
Members.
5.24
pm
Mr.
Browne:
I shall be brief. With your forgiveness,
Mr. Marshall, I want to clarify a misunderstanding with the
hon. Member for Paisley and Renfrewshire that arose during
questions.
5.24
pm
Sitting
suspended for a Division in the
House.
5.39
pm
On
resuming—
Mr.
Browne:
I was saying that I want to clarify the
misconception that the hon. Member for Paisley and Renfrewshire, North
had about a question that I asked earlier. On the whole, Polish people
in the UK make a substantial contribution to our economy. They have
considerable skills and fill labour shortages both in my constituency
and across the country. Were they to withdraw their labour, it would
make life for the indigenous population of this country very
difficult.
It
is a cause for celebration that many Polish people enjoy living and
working here and contributing to our national prosperity and
well-being. It is particularly interesting—I shall not digress
beyond this, Mr. Marshall—to look at the country that
hosted the signing of the Warsaw pact and to think that, for someone of
my age, the Polish population were potential opponents in a third world
war, yet my contemporaries from that country are now working alongside
us agreeably.
The
point that I sought to make was that the Polish Government have
expressed concern about the statistic, which is often bandied about,
that the UK has the highest number of people in prison per head of
population of any country in Europe. However, that is not
true—it is the highest in western Europe. In Poland, the prison
population per capita is even higher
than ours. The per prisoner cost in the United Kingdom is
£40,000, and I suspect that it is lower in Poland. There are
substantial implications for the Polish Government in agreeing to the
measure, not only in terms of cost but because their prisons are full.
As I understand it, there is a waiting list to get into prison once one
has been convicted of an offence in Poland. Understandably, the Polish
Government have concerns about increasing demand for prison places,
when they are struggling to satisfy the existing demand on their
limited places.
On the
substance of the document, there is considerable detail that will need
to be better understood over time. Of course, as people become
increasingly mobile, they may not necessarily feel an overwhelming
affinity with one European Union state over another. For example, many
UK nationals live in Spain and other EU countries, and many people have
married people from other countries. Some prisoners may nominally be
British citizens, but they may regard themselves as citizens of the
country in which they committed the offence that got them into prison,
rather than of
Britain.
There
are all kinds of issues of that sort, but, leaving them momentarily to
one side, my party welcomes the broad principles of the measure for
three reasons, which I shall summarise. First, we agree with comments
made by others that the rehabilitation of prisoners is more likely to
be effective if it is undertaken in the host country, particularly if
the prisoner speaks the language that is widely used in the prison.
Secondly, we believe that the rehabilitation of prisoners is more
likely to be effective if the prisoner is kept in a prison that is
close to his or her family. That principle broadly applies to most
cases in the United Kingdom at present, and there is no reason to think
that it would not be effective on an EU-wide basis as well. Thirdly,
for the reasons that I have touched upon, as things stand—there
is no guarantee that this will be the case in the future—it
seems that the measure would be of financial benefit to the British
taxpayer, although I suspect that the benefits would be marginal. There
is no reason to believe that there would be an additional burden on the
British taxpayer.
For
all those reasons, we regard the measure as a step in the right
direction. We congratulate the Government on their achievement in
taking the negotiations to this stage and wish them well in trying to
ensure that any anomalies that arise can be ironed out and improved
over
time.
5.43
pm
Mr.
Clappison:
I wish to speak briefly not on the merits of
the measure but on the process of scrutiny in which we have been
engaged. One must do that if we are to do justice to the role of this
House in scrutinising
legislation.
Scrutiny
must mean debating legislation and doing so at an appropriate time. The
public would think that we had taken leave of our senses if we started
to organise debates on legislation after it had come into effect, but
that is what I fear has broadly happened in this case. The Government
have already agreed at a European Council to the general approach that
is being taken in the legislation, and it is clear that only in limited
circumstances, which do not seem to apply in this case,
will a general approach be reopened once the Government have agreed it.
Therefore, this is a fait accompli—the decision has already been
reached. We are in these splendid surroundings solemnly debating and
asking questions, but the decision has already been
taken.
Even on the
Government’s view of the European scrutiny process, which is not
universally accepted, the spirit of the scrutiny reserve resolution has
been breached. It has been breached big time, because the Government
have driven a coach and horses through the process and through the
spirit of the scrutiny reserve resolution, as can be seen by the paper
that we have received from the European Scrutiny Committee, which set
out the Committee’s concerns quite some time ago. I believe,
too, that that can be seen in subsequent correspondence between that
Committee and the Government, about which more will be heard later, I
suspect.
Notwithstanding
the four warnings that the Government were given by the European
Scrutiny Committee that the matter should be debated in Parliament
before a general acceptance is reached, they have gone ahead and agreed
to it. Working on the Government’s own guidelines, that is the
end of scrutiny in this House for all intents and purposes. That is
what has happened in the scrutiny process, and we would be fulfilling
less than our role if we did not draw that to the attention of the
House. I exempt this Minister from the criticism, because he has been
very courteous to the Committee. He is, I think, the first Minister to
apologise for what has taken place. No doubt other Ministers will hear
more about the subject later.
5.46
pm
Mr.
Hands:
May I say first that I share the concerns of my
hon. Friends about the scrutiny timetable and about the seeming
inability to get answers on a lot of the detail of the proposal? I echo
the positive comments of the hon. Member for Taunton about the
contribution of Polish citizens to this country. My constituency has
probably the largest percentage of Polish residents of anywhere in the
country.
There is only
one matter that I want to raise. We are talking about not only
prisoners, legal practitioners and those working in the prison system,
but the
important consideration of the rights of victims. As I understand it,
Britain does a reasonably good job, although certainly not a perfect
one, of informing victims when an assailant—in other words, a
criminal—is about to be released or has been released. I am
looking for reassurance that the same regime will be in place in the
event that an assailant is released from a prison in Bulgaria, Romania
or, equally, western Europe. I am not at all convinced that that would
be the case, and I am looking for reassurance that the rights of
victims under the proposals will be exactly the same as they were
previously when an assailant was held in a UK
prison.
5.48
pm
Mr.
Sutcliffe:
I thank you, Mr. Marshall, the
officials and the Committee secretariat for organising the scrutiny of
this important measure. I broadly welcome the agreement that has been
reached that the measure is sensible and appropriate, and I am grateful
to the Committee for recognising that fact. I acknowledge the concerns
of the hon. Member for Hertsmere about the scrutiny process. He has
strongly made his points about how he feels about that.
On dealing with victims and the
issues that affect them, I am grateful for the support of the hon. and
learned Member for Harborough and Victim Support for the victim care
units that we have introduced. I certainly intend that the issues
relating to victims will be considered in the detail that will
necessarily flow from the agreement. Again, we will look to the
agreement to ensure that it delivers what we want it to, which is the
consideration of rehabilitation. While the punitive element should be
in place, so should rehabilitation. I am grateful to the Committee and
acknowledge the support from all
parties.
Question
put and agreed to.
Resolved,
That
the Committee takes note of European Union Document No. 13080/06, Draft
Council Framework Decision on the application of the principle of
mutual recognition to judgments in criminal matters imposing custodial
sentences or measures involving deprivation of liberty for the purpose
of their enforcement in the European Union; and supports the
Government’s intention to secure adoption of this
agreement.
Committee
rose at eleven minutes to Six
o’clock.
