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Baroness Anelay of St Johns moved Amendment No. 65:

The noble Baroness said: My Lords, in moving Amendment No. 65, I shall speak also to Amendment No. 67. We now turn to a different issue: the transfer of prisoners in order that they can help in criminal investigations in participating countries overseas. I have grouped the amendments so that we can deal with the case of a prisoner in the UK being transferred abroad and with the case of a prisoner overseas being transferred here to give evidence.

We are told that the new power is unlikely to be used frequently. I accept that it could be useful if a prisoner who is helping a UK investigation might be able to identify a site or take part in an identification parade. The clause says that, if the Secretary of State has an agreement with the competent authority of a participating country, he can issue a warrant that will make it possible to transfer a prisoner to a participating country. So far, so good, but, in Committee, I raised the

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issue of the consent to the transfer given by the prisoner or by someone with the authority to act on his behalf, if he is incapable of making a decision for himself.

The problem is that the Bill states that once the warrant has been issued, that is it—the consent cannot be withdrawn. I am aware that the Law Society is opposed on principle to a provision that makes the giving of consent an irrevocable act. My approach has been more commonplace and practical.

My amendments today are slightly different. They are tabled in an attempt to determine whether my objective of fairness and practicality can be met within the Government's reasonable objective—which I fully support—of ensuring that prisoners should give evidence when it is material to a criminal investigation.

I understand that Clause 47 builds upon existing legislation in the 1990 Act. However, I believe that the Bill gives the opportunity to plug the loophole in the original legislation at a time when we are introducing, as the noble Lord, Lord Bassam, said in Grand Committee,

    "some slightly different arrangements".—[Official Report, 27/1/03; col. GC 151.]

The loophole to which I am referring is that consent cannot be revoked.

What happens if the inability of the prisoner to act on his own behalf develops after consent has been given? What if he remains capable of giving consent but, having given it, becomes seriously physically ill? In Grand Committee, the Minister's response (at col. GC 151 of the Official Report of 27th January 2003) was to offer assurance that a decision to make the transfer was done only after extensive consultation with all parties.

Surely the point is that consent may be given at a time when the person involved is well and able to participate. Trouble may develop later. The Minister admitted in Grand Committee that between the giving of consent by the prisoner and his transfer,

    "there will inevitably be some period of delay, perhaps a matter of weeks or a month at the most".—[Official Report, 27/1/03; col. GC 155.]

That is time enough in which physical and/or mental problems could set in.

The Minister said that unfit prisoners would not be made to travel even though there is no protection in the Bill, but then admitted that if mental problems developed,

    "it is extremely unlikely that any pressure would be put on that person to continue his journey".—[Official Report, 27/1/03; col. GC 154.]

"Extremely unlikely" still leaves the possibility that pressure would be put on him to continue his journey.

Surely the argument should be that the provisions on the face of the Bill make it clear how proper procedures should be in place to ensure that the right decisions are taken in the right way at the right time. That is what I have sought to do in tabling the amendments. They are simple. I have given the Secretary of State the right to decide. The amendments say that consent cannot be withdrawn once the warrant has been issued, except with the permission of the Secretary of State. That solves

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the problem. If he decides not to transfer the prisoner, the opportunity is not only there, but it is actually a legal one for him.

I hope that seems reasonable. It is definitely a probing amendment to find a practical solution. I recognise, too, that there may be circumstances in which the Secretary of State may decide that it is so vital to investigation that the prisoner should be transferred and give evidence even though he or she is ill. I do not discount that—where a prisoner's evidence is so vital. I beg to move.

Lord Goodhart: My Lords, I support the amendments. They seem eminently sensible. It would be wrong to give the prisoner an absolute right to change his or her mind without giving any reason. That would encourage trouble-making. It seems that there are cases where there may be a genuine change of circumstances—illness or a number of other causes—which occur after the prisoner gave his or her original consent to transfer. It is plainly right that there should be a safety valve which would enable the consent to be withdrawn. Requiring the approval of the Secretary of State is a reasonable way of achieving that. There are alternatives, such as acquiring the approval of the court. However, I should be happy with the consent of the Secretary of State who would be bound to act reasonably in deciding whether to give that consent.

Lord Bassam of Brighton: My Lords, on the face of it, the amendment appears entirely reasonable. I appreciate that the noble Baroness, Lady Anelay, has gone some way to change her approach, but what we should focus on is how this is to work in practice. I hope that my remarks will persuade both the noble Baroness and the noble Lord, Lord Goodhart, that as the practical application of the provision works through—we should bear in mind that this will not be a frequent event—the care with which such transfers will be conducted means that the procedure will work well and to the benefit of all.

Having listened to the remarks of the noble Baroness and the noble Lord, I think that we are all agreed that, once granted, prisoners should not be able to withdraw consent for the practical reason that withdrawal of consent after a warrant has been issued might invalidate the warrant, so that the prisoner could not be held in legal custody. The noble Lord, Lord Goodhart, made the important point, which lends support to our position, that if we were to allow for consent to be withdrawn after a warrant had been issued, it would play fast and loose with the process and could give rise to future mischief.

We also agree that a prisoner who has given consent to be transferred should not be transferred if, between the time of giving consent and the date of the actual transfer, he becomes ill and unfit to travel. Other exceptional circumstances might arise where, even when the prisoner has consented, it might not be appropriate for him to travel, such as in the event of a national emergency in the destination country.

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However, we do not agree that it is necessary to provide for the prisoner to withdraw his consent in such circumstances.

I wish to repeat a point that I made in Committee; that is, the UK authorities would not transfer a prisoner if he were not medically fit to travel. A prisoner would not be transferred even if he insisted that he was well enough, if a doctor did not agree. That is an important point. Not only would it not be in the interests of the prisoner to be transferred when unfit to travel, I would argue that it would not be in the interests of the investigators. What use would an unwell prisoner be if he was incapable of helping with an investigation because it was clear that he could not give coherent responses due to a medical condition?

We take the view that there is no need to provide for the possibility of withdrawal of consent by the prisoner, even with the permission of the Secretary of State—kindly granted by the noble Baroness in her amendment. In the event that a prisoner becomes unfit to travel, the transfer will be suspended or cancelled. It is worth remembering that the warrant is generally issued at the very end of the process; that is, just prior to the transfer taking place.

The clauses reflect the terms used in Sections 5 and 6 of the 1990 Act. Those provisions have served us well. The provision regarding consent reflects exactly the position under that Act. The provisions have worked well so far and we will approach these matters sensitively. I have given an assurance on the health and fitness of the prisoner and his ability to travel. I have also reminded noble Lords that the issuing of the warrant is important and will in almost every case take place at the end of the process. Furthermore, I repeat that we are referring here to only a small number of cases in any given year.

That is the position. I hope that, having heard what I have said, the noble Baroness, Lady Anelay, will feel able to withdraw her amendment.

Baroness Anelay of St Johns: My Lords, I said that it was a probing amendment. I am grateful to the Minister for his response and for making it clear that the Government do not intend that people should travel if they are incapacitated.

I still believe that the situation is unsatisfactory in that there is not clarity about the issue of consent, but I do not intend to take the matter further. Both in Committee and on Report we have had helpful indications from the Government and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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