Written Evidence
Letter from the Chairman to Rt
Hon Jack Straw MP, Secretary of State for Justice, dated 3 March
2009
We recently received a copy of the treaty between
UK and Libya signed on 17 November 2008 concerning the transfer
of sentenced prisoners (Cm 7540) and the associated explanatory
memorandum, signed by Rt Hon David Hanson MP. The explanatory
memorandum is dated 17 January and, as I understand it, ratification
may occur any time after 5 March once the period for parliamentary
scrutiny under the Ponsonby Rule has elapsed.
My Committee discussed the treaty at its meeting
last week and intends to send you some specific questions about
human rights safeguards. I hope we will be in a position to send
these questions next week. Depending on your reply, we may wish
to publish the correspondence or publish a short report. Either
way, we should be in a position to conclude our scrutiny of the
treaty by the end of April. I would be grateful if you could delay
ratification of the treaty until that time, to enable us to conclude
our work.
Letter from Rt Hon Jack Straw
MP to the Chairman, dated 12 March 2009
Thank you for your letter of 3 March in which you
sought an extension of the time allowed under the Ponsonby Rule
for consideration of the UK/Libya Prisoner Transfer Agreement.
I am keen to facilitate further discussion by the Joint Committee
on Human Rights but I am unable to consent to full extension requested.
I am however, willing to delay ratification until the House rises
for the Easter recess. This will give the Committee an additional
16 sitting days to consider the Treaty further.
I have not reached this decision lightly but the
delay that you request would mean delaying ratification of the
agreement until the end of April or possibly even later. Ratification
of the agreement by the United Kingdom has already been delayed
by six days due to February recess and delaying it further would
take us well into the second quarter of the calendar year. Furthermore,
delays in the ratification of this Treaty would have an impact
on three other treaties in the field of judicial cooperation which
are due to be ratified this month. Both the Foreign Secretary
and I believe that, in the interests of our judicial and wider
bilateral relations with Libya, it is important to ratify all
four as far as possible at the same time.
In May 2007, the then Prime Minister signed a Memorandum
of Understanding with Libya in which he committed the United Kingdom
to concluding with Libya a prisoner transfer agreement, an extradition
agreement, and agreements on mutual legal assistance and civil
and commercial law. As you have noted, all four agreements were
signed in London on 17 November 2008.
These four agreements from a package of legal instruments
in the field of judicial co-operation. It had been our intention
to exchange Instruments of Ratification on each element of the
package before the end of March. It is on this basis that both
the UK and Libya have been proceeding. Libya has already completed
its integral procedures and is ready to ratify. A delay beyond
early April is likely to lead to serious questions on the part
of Libya in regards to our willingness to conclude these agreements.
The UK Libya relationship is one of great importance. It has been
transformed since Libya's voluntary renunciation of Weapons of
Mass Destruction in 2003. The agreements are part of the UK Government's
continuing effort to work with Libya to engage constructively
with the international community.
I note your intention to provide me with questions
by the Committee this week. If you are able to do so this will
help me to ensure that you receive a full response to your questions
at the earliest opportunity.
Letter from the Chairman to Rt
Hon Jack Straw MP, dated 17 March 2009
Thank you for your letter of 12 March in which you
indicated that you are willing to delay ratification of this Treaty
until the House rises for the Easter recess and that you will
endeavour to ensure answers to my Committee's questions at the
earliest opportunity.
My Committee's main concerns about the Treaty relate
to the lack of human rights safeguards in the Treaty itself, the
value of such safeguards in any event in relation to Libya, and
the limited opportunity to challenge on human rights grounds a
decision to transfer.
As you will be aware, the Memorandum of Understanding
between the UK and Libya dated 18 October 2005 concerning the
provision of assurances in respect of persons subject to deportation
contains a number of detailed assurances concerning the protection
of the human rights of the deported person, including, for example,
that they will be afforded adequate accommodation, nourishment
and medical treatment, and treated in a humane and proper manner
in accordance with internationally accepted standards. The MOU
also provides for an independent monitoring body to monitor implementation
of the assurances.
In AS and another (Libya) v Secretary of State
for the Home Department the Special Immigration Appeals Commission
(SIAC) considered the reliability of these assurances and concluded
that there was a real risk that the individuals who were to be
deported in that case, on the ground that they were a threat to
national security, would be treated in a way which breached Article
3 ECHR notwithstanding the assurances contained in the MOU. SIAC
concluded, at para. 371 of its decision:
" … we think that there is a real risk
that that would happen. The need in this case to make a large
allowance for the unpredictable reaction, which in the short term
or occasionally diverges from the pragmatic path upon which the
Libyans are set means that we cannot eliminate the real risk which
we have identified. The fact that the direction of Libyan foreign
relations would largely remain the same does not remove the risk.
There are no domestic changes, institutions or considerations
which would assist. Above all the risk is not reduced sufficiently
by the monitoring system because it is at these times that its
limitations would be most evident and felt. We have to bear in
mind that the monitoring system is intended to deter and check
on potential breaches which can occur quite quickly, and to alert
the UK's diplomats to the problem rapidly. The diplomatic pressure
which the UK could bring to bear and the responses adverse to
Libya's interests which it could deploy, would not be engaged
if the monitoring were ineffective to report on possible abuse.
We do not therefore have the confidence which we need to have,
for the return of the Appellants not to breach the UK's international
obligations. In short there is too much scope for something to
go wrong, and too little in place to deter ill-treatment or to
bring breaches of the MOU to the UK's attention."
The Court of Appeal upheld SIAC's decision ([2008]
EWCA Civ 289) and we understand that the Government has not appealed
against the Court of Appeal's decision.
The Treaty on the Transfer of Prisoners does not
contain even those human rights safeguards contained in the MOU
which the UK courts have found to be insufficient to remove the
real risk of torture of those it was sought to deport on national
security grounds.
We are also concerned about the adequacy of the recourse
to a court for a prisoner who wishes to challenge on human rights
grounds the decision to transfer them. A prisoner who a court
recommends for deportation at the time of sentencing has a right
of appeal against the recommendation for deportation. However,
a prisoner who the Secretary of State subsequently decides to
deport, while they are serving their sentence, has no right of
appeal against that decision, only the right to apply for judicial
review. Although the judicial scrutiny given to decisions which
affect human rights on judicial review is more intensive under
the Human Rights Act, it is still inferior to a full right of
appeal on the merits of the decision to deport, to an appellate
court, with full fact finding powers and the power to substitute
its own decision on the merits if it disagrees with the Secretary
of State's decision. There is also no right of appeal against
a decision of the Secretary of State to transfer a prisoner to
Libya under the Treaty, only a right to challenge that decision
by way of judicial review.
In the light of the above, we would be grateful to
receive your answers to the following questions:
Q1: How many Libyan nationals are currently detained
in UK prisons?
Q2: How many of those have been convicted of terrorism-related
offences?
Q3: What do you consider to be the relevance of
the judgments of SIAC and the Court of Appeal that the assurances
contained in the MOU with Libya did not remove the real risk that
the deportees in that case would be subjected to treatment contrary
to Article 3 ECHR?
Q4: Why does the Treaty on Prisoner Transfer not
include any human rights safeguards concerning matters such as
treatment, conditions and independent monitoring?
Q5: What is the justification for not providing
a full right of appeal on human rights grounds to a prisoner whom
the Secretary of State decides to transfer under the Treaty?
Q6: Why do the conditions for transfer in Article
3 of the Treaty not include that "they would otherwise be
deported at the end of their sentence", which is one of the
preconditions of transfer without consent under Article 3 of the
Additional Protocol to the European Convention on the Transfer
of Sentenced Persons?
I would be grateful if you could respond at the earliest
opportunity in order to enable us to report to Parliament prior
to ratification if we think it appropriate.
Letter from Rt Hon Jack Straw
MP to the Chairman, dated 27 March 2009
Thank you for your letter of 17 March in relation
to the Prisoner Transfer Agreement (PTA) which has been signed
between the United Kingdom and Libya. The letter contains a number
of specific questions in relation to the PTA, principally concerned
with the issue of safeguards for transferred prisoners. I address
those questions below but it may help if, perhaps, at the outset,
I state that the UK Government is mindful of its human rights
obligations and we would not proceed with the compulsory transfer
of any serving prisoner unless we were satisfied that such a transfer
would be compliant with our obligations such as under Articles
3 and 8 of the European Convention on Human Rights (ECHR).
As your Committee is aware, the Police and Justice
Act 2006 removed the requirement in the Repatriation of Prisoners
Act 1984 for the consent of a prisoner to transfer in each case.
The Government has made it clear, including in answers to parliamentary
questions, that, wherever possible, it will seek to negotiate
bilateral prisoner transfer arrangements on this basis. The PTA
with Libya will be the first "no consent" PTA to be
ratified. Active negotiation of the PTA commenced in June 2007
and the initial text was based closely on the model agreement
used for previous prisoner transfer agreements; which was in turn
drawn from the European Convention for the Transfer of Sentenced
Persons of 1983. Only slight amendments were made to the text
to remove the requirement for prisoner consent. Since that time,
a new model agreement has been developed which takes more explicit
account of the different nature of "no consent" transfers.
It is our intention that, if any compulsory transfer of prisoners
are sought under this PTA, the safeguards spelled out in the new
model will be applied. In any event, the UK's obligations under
the European Convention on Human Rights and the Human Rights Act
will of course apply in relation to any transfer under this PTA.
Under all existing prisoner transfer agreements to
which the UK is party, applications for transfer are considered
on a case-by-case basis. This principle will continue under the
PTA with Libya, but in addition to the normal procedures where
will also be an assessment of compatibility of transfer with Article
3 of the ECHR which will include seeking advice as to the current
state of Libyan prisons. A prisoner would be advised of the Government's
intention to transfer and would be invited to make written representations.
These representations would be taken into account when determining
whether or not transfers should proceed. Any decision to proceed
would have to be compatible with the Government's obligations
under the Human Rights Act and with ECHR and would be subject
to judicial review.
Moving on to the Committee's specific questions:
Q1: How many Libyan nationals are currently detained
in UK prisons?
As at 31/12/08 there were 26 Libyans in UK prisons,
of whom 25 were in England and Wales and one in Scotland.
Q2: How many of those have been convicted of terrorism-related
offences?
One prisoner only has been convicted of a terrorism-related
offence.
Q3: What do you consider to be the relevance of
the judgments of SIAC and the Court of Appeal that the assurances
contained in the MOU with Libya did not remove the real risk that
the deportees in that case would be subjected to treatment contrary
to Article 3 ECHR?
The judgments in question reflected the particular
circumstances of the individuals concerned who were found to be
threats to Libya's national security. The decision has no direct
relevance to prisoner transfers. Decisions to transfer a particular
prisoner under this PTA will likewise fall to be decided on the
basis of the particular circumstances of the proposed transfer.
In proposing the transfer of any prisoner under this PTA HMG shall
of course act consistently with its obligations under ECHR and
the Human Rights Act.
Q4: Why does the Treaty on Prisoner Transfer not
include any human rights safeguards concerning matters such as
treatment, conditions and independent monitoring?
Although this PTA provides for transfer without the
prisoner's consent it does not require either party to seek or
agree to the transfer of any particular individual prisoner. As
outlined above, any compulsory transfer of a prisoner under this
PTA would be subject to an Article 3 ECHR assessment and would
have to be compatible with our international obligations. Where
it is thought appropriate and necessary in any individual case,
the Government will seek assurances about the conditions and treatment
that the prisoner will receive in Libya and if satisfactory assurances
cannot be reached, the Government will not proceed with the transfer.
Q5: What is the justification for not providing
a full right of appeal on human rights grounds to a prisoner whom
the Secretary of State decides to transfer under the Treaty?
Where transfer is sought on a compulsory basis a
prisoner will be able to seek judicial review of the decision
made by the Secretary of State or the Scottish Ministers. Such
a review would have regard to the prisoner's human rights and
the weight given to them by the decision maker. Given that prisoners
already have the right to seek judicial review a formal appeal
proves is not considered necessary.
Q6: Why do the conditions for transfer in Article
3 of the Treaty not include that "they would otherwise be
deported at the end of their sentence," which is one of the
preconditions of transfer without consent under Article 3 of the
Additional Protocol to the European Convention on the Transfer
of Sentenced Persons?
As outlined above, the text of this first "no
consent" PTA was drawn from the standard model previously
used for voluntary transfers. The UK Government would not consider
for compulsory transfer under this PTA any prisoner who would
not be subject to deportation at the end of their sentence. Indeed
it will be part of the process of transferring the prisoner to
seek a deportation order if one is not already in place prior
to the consideration of transfer. This order would be subject
to appeal in the normal way.
Email from Mr Peter J. Sullivan
Sr, dated 13 March 2009
Please know that I am an American citizen and I lost
a very dear friend of mine, Mike Doyle, in the terrorist bombing
of Pan Am flight 103 over Lockerbie. Frequently, I pray for Mike
and the other 269 victims that they may rest in peace and that
their families may find peace and forgiveness. I assure you that
both are elusive and difficult.
I am very fortunate that the Crown Office keeps me,
and others, informed about the progress of Mr. Megrahi's appeal
as well as the prisoner transfer agreement (PTA). Please accept
my apologies for not understanding the British legal system, but
I presume that this Committee has influence over the PTA and its
ratification.
If that is true, then I would like to strongly recommend
that the PTA not be ratified. I could present at least 270 compelling
arguments as to why Mr Megrahi should not be considered for this
release program as well.
More simply, Mr Megrahi was accused, tried and convicted
in an unbiased court with fair criminal justice rules and procedures.
Despite his poor, and perhaps declining health, he should not
be released to be in the aid and comfort of his family until he
is able to return the 270 victims of Pan Am 103 to their families.
Since I do not believe that he will be able to accomplish that,
he should, in my view, remain in Scottish prison, with adequate
health care, food, shelter and religious freedom while his appeal
process proceeds. By all measures, that is a more favourable fate
than the fate that he bestowed on the victims of his heinous crime
and mass murder four days before Christmas in 1988.
Please understand the gravity of his offence and
do not yield to any exogenous pressures that may be influencing
this process. Mr Megrahi is a murderer and should complete his
sentence of life in prison until his demise. At that point, his
remains can be transferred to his family and his soul can be judged
by the ultimate authority and judge, hopefully with kindness and
compassion, for his sake.
Thank you for your consideration of my thoughts and
comments.
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