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Amendments Nos. 116 to 120 replicate those tabled in Committee by the hon. Members for Somerton and Frome (Mr. Heath) and for Enfield, Southgate. We had
a great deal of discussion on amendment No. 116, but I was not persuaded of its merits in Committee and I am not persuaded of its merits now.
Amendments Nos. 206 and 209 will remove the power for a court to deal with a wilful and persistent breach of a youth rehabilitation order by imposing a youth rehabilitation order with intensive supervision and surveillance or custody. It is essential to preserve the credibility of the YRO as a robust and meaningful community sentence.
The hon. Member for Somerton and Frome referred to new clauses 40 and 42, which seek to place further restrictions on the use of custody. Again, although I tried to adopt a spirit of co-operation, I cannot accept them and do not believe that they are necessary. There are sufficient safeguards in the Bill on providing a YRO with intensive supervision and surveillance or intensive fostering requirements as alternatives to custody, and in section 152 of the Criminal Justice Act 2003 there are provisions in respect of limiting the use of custody. For similar reasons, I am also unable to accept new clause 42, which would raise the custody threshold to an unacceptably high level that may put the public at significant risk.
The hon. Gentleman also referred to amendments Nos. 210 and 213 in seeking to determine whether it would be appropriate to extend the youth conditional caution to 10 to 15-year-olds. Again, there is a glimpse of light for him at the end of the tunnel on this matter, in that, as I explained in Committee, I have not ruled out considering extending conditional cautions to 10 to 15-year-olds. I want to look at the matter in more detail so I am unable to bring forward such proposals at the moment, but I hope that he will take me at my word when I say that we are looking at that in a serious and effective way.
The hon. Gentleman also referred to amendments Nos. l96 to 200, which focused on legal representation for young people. I understand that a number of safeguards may already be in place to ensure that a youth will be granted publicly funded representation where necessary. I do not wish to extend the scope because it would damage and sideline the interest of justice test under the Access to Justice Act 1999. I am sure that the hon. Gentleman will recall my letter to him of 27 October, which was a copy of a letter to the hon. Member for Macclesfield (Sir Nicholas Winterton) who was a Chairman of the Committee, in which I said that since 2 October 2006, defendants appearing before magistrates and youth courts have also been required to pass a financial eligibility test in order to qualify for publicly funded representation. I also stressed that the passporting provisions on age would be extended from 1 November 2007, which means that all defendants under the age of 18 will now be exempt from the means test. I hope that that helped the hon. Member for Somerton and Frome then and today.
I have tried to answer some of the brief points in the discussion. I hope that the Government’s new clauses and amendments will be accepted and that hon. Members will understand the points that I have made in response to their concerns.
Clause read a Second time, and added to the Bill.
‘(1) Part 3 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (mandatory and discretionary referral of young offenders) is amended as follows.
(2) After section 27A (as inserted by section (Referral orders: power to revoke a referral order) above) insert—
“27B Extension of period for which young offender contract has effect
(1) This section applies where at any time—
(a) a youth offender contract has taken effect under section 23 above for a period which is less than twelve months;
(b) that period has not ended; and
(c) having regard to circumstances which have arisen since the contract took effect, it appears to the youth offender panel to be in the interests of justice for the length of that period to be extended.
(2) The panel may refer the offender back to the appropriate court requesting it to extend the length of that period.
(3) The requested period of extension must not exceed three months.”
(3) In Schedule 1 (youth offender panels: further court proceedings), after Part 1 insert—
9ZB (1) This Part of this Schedule applies where a youth offender panel refers an offender back to the appropriate court under section 27B of this Act with a view to the court extending the period for which the offender’s youth offender contract has effect.
(2) For the purposes of this Part of this Schedule and that section the appropriate court is—
(a) in the case of an offender aged under 18 at the time when (in pursuance of the referral back) the offender first appears before the court, a youth court acting in the local justice area in which it appears to the youth offender panel that the offender resides or will reside; and
(b) otherwise, a magistrates’ court (other than a youth court) acting in that area.
Mode of referral back to court
9ZC The panel shall make the referral by sending a report to the appropriate court explaining why the offender is being referred back to it.
9ZD (1) If it appears to the appropriate court that it would be in the interests of justice to do so having regard to circumstances which have arisen since the contract took effect, the court may make an order extending the length of the period for which the contract has effect.
(2) An order under sub-paragraph (1) above—
(a) must not extend that period by more than three months; and
(b) must not so extend that period as to cause it to exceed twelve months.
(3) In deciding whether to make an order under sub-paragraph (1) above, the court shall have regard to the extent of the offender’s compliance with the terms of the contract.
(4) The court may not make an order under sub-paragraph (1) above unless—
(a) the offender is present before it; and
(b) the contract has effect at the time of the order.
9ZE The following paragraphs of Part 1 of this Schedule apply for the purposes of this Part of this Schedule as they apply for the purposes of that Part—
(a) paragraph 3 (bringing the offender before the court);
(b) paragraph 4 (detention and remand of arrested offender); and
(c) paragraph 9ZA (power to adjourn hearing and remand offender).”’.— [Mr. Hanson.]
Brought up, read the First and Second time, and added to the Bill.
‘In section 2(1) of the Repatriation of Prisoners Act 1984 (c. 47) (transfer out of the UK), for subsection (1) substitute—
“(1) The effect of a warrant under section 1 providing for the transfer of the prisoner out of the United Kingdom shall be to authorise—
(a) the taking of the prisoner to any place in any part of the United Kingdom, his delivery at a place of departure from the United Kingdom into the custody of an appropriate person and his removal by that person from the United Kingdom to a place outside the United Kingdom; or
(b) the taking of the prisoner to any place in any part of the United Kingdom, his removal from the United Kingdom and his delivery, at the place of arrival from the United Kingdom, into the custody of an appropriate person.
(1A) In subsection (1) “appropriate person” means a person representing the appropriate authority of the country or territory to which the prisoner is to be transferred.”’.— [Mr. Hanson.]
Brought up, and read the First time.
Mr. Hanson: I beg to move, That the clause be read a Second time.
Madam Deputy Speaker: With this it will be convenient to discuss the following: Government new clause 22— Issue of warrant transferring responsibility for detention and release of an offender to or from the relevant Minister.
Government new clause 23— Powers to arrest and detain persons believed to fall within section 4A(3) of the Repatriation of Prisoners Act 1984.
Government new clause 24— Amendments relating to Scotland.
Government amendments Nos. 144 to 155.
6.30 pm
Mr. Hanson:
The Government have previously announced their intention to ratify the additional protocol to the Council of Europe convention on the transfer of sentenced persons. The protocol provides for the transfer of prisoners subject to a deportation order to the state to which they would ultimately be deported for the purpose of the continued enforcement of the sentence there. The prisoners’ consent is not required. The protocol also provides for the transfer of
responsibility for the enforcement of a sentence when a serving prisoner has fled from one jurisdiction to another to avoid the consequences of imprisonment.
The United Kingdom has sufficient legislation in place to enable a prisoner to be transferred without his consent when a deportation order has been issued. However, existing legislation is not sufficient to provide for the transfer of responsibility for the continued enforcement of a sentence when no physical transfer of the prisoner takes place. The new clauses in this group and the related consequential amendments seek to rectify that omission and pave the way for the ratification of the additional protocol. I commend them to the House.
Mr. Garnier: The Minister did not tell us that the amendment paper contains brand new additions to the Bill. They have not been discussed in Committee, but just plonked into the amendment paper in the past few days. They go from page 252 to 260. Hon. Members may or may not think that the provisions are more or less uncontroversial, but they are not negligible additions to the Bill.
Bob Spink (Castle Point) (Con): I have been reading the relevant parts of the amendment paper and I find them absolutely impenetrable. In some of the text, there is confusion between the relevant Minister and the appropriate authority. New clause 22(6)(b) refers to:
“the relevant Minister...having regard to any close ties which that person has with the United Kingdom.”
We do not want such ties to override the interests of the UK in ensuring that undesirable or even dangerous people do not come to and stay in this country. Will my hon. and learned Friend consider that point carefully before we decide whether to accept those amendments, which have been dropped on us?
Mr. Garnier: It is good of my hon. Friend to invite me to consider that issue; I have been having a careful look at it for a few hours, as I have been sitting in the Chamber. He picks up a perfectly legitimate concern; we do not really know, and the Minister did not tell us, what the definition of
“close ties...with the United Kingdom”
might be. One is immediately brought in mind of the Chindamo case. Although the teenager who murdered the headmaster Philip Lawrence is not a British citizen, the courts have held that he has, for one reason or another, close ties with this country and therefore is not susceptible to deportation. I do not want to argue the merits or demerits of that particular court decision, but it illustrates the point that my hon. Friend draws to our attention. I do not propose to have a vote on these new clauses, not because I do not think it proper to do so, but simply because there is not time.
Jeremy Corbyn (Islington, North) (Lab):
Like the hon. and learned Gentleman, I am slightly confused by the volume of amendments that have been put before us. From his studies, is he aware of any danger that may be implicit in the amendments of undermining international treaty obligations such as conventions on torture or other such obligations, in the same way as protocol agreements between the British Government
and some of the Governments in north Africa and the middle east have undermined the conventions on torture?
Mr. Garnier: The conventions on torture to which this country is party exist, and we should comply with them irrespective of legislation that this Government may or may not thrust upon us. Unless a measure such as that which we are considering expressly dissociates this country from a convention, that convention should be adhered to. The memorandums of understanding that the Government have entered into with the Hashemite Kingdom of Jordan, Libya and, possibly, Syria—I am not quite sure, but a number of middle eastern countries are involved—have proved to be rather ineffective, as they have not necessarily been accepted as workable by the courts when they have been tested. I may be corrected on that; I am sure that the hon. Gentleman has followed the detail of their progress more closely than I have.
It is important that these measures are properly understood as regards the transfer of foreign national prisoners from our prisons back to their home states. We have 11,300 or so foreign national prisoners in our prisons; from our point of view, that is 11,300 places that should be freed up for use by English, or British, prisoners who can be imprisoned closer to their families, homes, jobs and communities, while the foreign national prisoners can be imprisoned closer to their families and so on. The problem that we face is that the Government, while arranging for these people to go to prison, have failed to make proper arrangements for their repatriation once they have completed their sentences. As a result, the Government have had to re-role HMP Canterbury and HMP Bulwood Hall as being dedicated entirely to the purpose of dealing with foreign national prisoners awaiting deportation, some of whom have been waiting well beyond their official release date. That is yet another example of the incompetence of this Government’s management of the prison estate.
The hon. Member for Islington, North (Jeremy Corbyn) will be concerned particularly about matters such as unlawful rendition—the taking of individuals from one jurisdiction to another, some of whom may have come via this jurisdiction on their way to Guantanamo Bay and other interesting places. The new clauses do not deal precisely with that issue, but they remind us that it is an important one to bear in mind, and one that we should keep a careful eye on.
The Minister told us that the new clauses are designed to bring us into compliance with other existing international obligations. We do not have time to discover from him in any detail what those international obligations are and where they are to be found, so on this occasion we will just have to take his word for it. In normal circumstances, I would be happy to take his word without question, but I enter a note of scepticism into my voice because these new clauses have been sprung on us in the past few days.
It is a pity that some other aspects have not been available for further discussion, such as new clause 11, which deals with extradition. We had a brief debate about it in Committee, but unfortunately it has not
been selected for discussion this afternoon. None the less, I urge hon. and right hon. Members who are concerned about the unbalanced arrangements we have with the United States of America to look at new clause 11.
That having been said, I bring my remarks to an end. I remind the House of my complaint about the way in which the Bill has been constructed. This is yet another example of the cack-handed legislative doodling that the Government seem to have entered into. I trust that at some stage the House of Lords will have the opportunity to deconstruct the Bill and turn it into something resembling a proper Act of Parliament.
David Howarth: I would simply like to add my own concern about the late tabling of such lengthy and complex provisions. I accept what the Minister says about the need to bring this country into line with its international obligations, and the Government are obviously taking the opportunity to do so, but I echo the concern of the hon. Member for Islington, North (Jeremy Corbyn) about the relationship between this Bill and other international obligations. I should like the Minister to put it on the record that it is not the Government’s intention to supersede any other international obligations. The provisions should be implemented subject to those other obligations.
I shall mention only two other matters. First, I would like to respond to the point made by the hon. Member for Castle Point (Bob Spink) and remind the House that we are dealing with international obligations where reciprocity is the order of the day. It is impossible for this country to give itself rights and powers in such a field that it is unwilling to allow other countries to have. When the hon. Gentleman talks about the treatment of British citizens abroad and their being brought back to this country and raises the question of connection, he has to admit that other countries will apply the same rule about citizenship and connection. Such an arrangement has to have the best rules for all countries. It is unreasonable to expect this country to be given special privilege in international law, which is a theme that I might have expanded upon at great length were there an opportunity to do so.
My other point concerns why it is necessary for there to be a provision in proposed new section 4C(6) in new clause 122 that specifically says that there is no
“right of appeal on the relevant person against provisions contained”
in previous subsections. I have two things to say about that. First, if there is no right of appeal, there will presumably still be a right to judicial review. The other, rather more obvious point is that, if it is necessary to say that there is no right of appeal every time someone is mentioned in legislation and no mechanism is set up to provide for appeals, the implication is that there is a right of appeal when such wording does not appear. It is not entirely obvious why a right of appeal has been withdrawn in this Bill.
Subject to a response to those queries, and to the protest about the amount of time allowed for proper scrutiny of the provisions, I see no great objection to them.
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