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Lord Filkin: My understanding is that it would be an order made under the negative procedure, allowing any Member to pray against it, therefore enabling debate on the order to take place as is the House's custom.

Viscount Bridgeman: I thank the Minister. I gather that it is open to the House to question the political aspects of what the Delegated Powers Committee has pronounced. We feel strongly about the affirmative procedure in this context. I shall read carefully the Minister's reply, but we may have to reiterate the point on Report.

Lord Filkin: I have made an incorrect statement to the Committee. If the noble Viscount, Lord Bridgeman, was enquiring about scrutiny of an amendment to the protocol, as opposed to the discretionary order-making powers provided by the current Bill and protocol, I was referring to the latter. If he was referring to the European Union changing the protocol within the terms I described, the exact same form of scrutiny would apply as when a new European Union agreement is made—currently under the third pillar. In other words, the document is deposited and is open for inspection by either scrutiny committee of this House and another place, or both. That would enable scrutiny to be discharged through a debate in this House. Members of another place could request a debate on the matter should they so wish. I hope that my answer is sufficient. If I can add anything, I shall be pleased to write to the noble Viscount on reflection.

Viscount Bridgeman: I am most grateful to the Minister for his explanation. In those circumstances, I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendments Nos. 113B and 113C not moved.]

Clause 46, as amended, agreed to.

Lord Skelmersdale: I remind the Committee that Hansard is not writing down every syllable that Members utter. It depends entirely on the sound recording system picking up what is said in a distant part of the Palace of Westminster. I urge one or two people, who speak very lightly, to bear that thought in mind.

[Amendment No. 113D not moved.]

5.30 p.m.

Clause 47 [Transfer of UK prisoner to assist investigation abroad]:

Baroness Anelay of St Johns moved Amendment No. 113E:

    Page 26, line 35, leave out "competent" and insert "relevant judicial"

The noble Baroness said: In moving the amendment, I should like to thank the Law Society for its briefing on this matter.

We now turn away from banking provisions and towards the transfer of United Kingdom prisoners in order that they can help in investigations overseas in participating countries. The Explanatory Notes tell us that this new power is unlikely to be used frequently, but that it could be used, and useful, where a prisoner who is helping a UK investigation might be able to identify a site or take part in an identification parade.

Clause 47 tells us that if the Secretary of State has an agreement with the competent authority in a participating country, then he can issue a warrant which will make it possible to transfer a prisoner to that participating country. I have tabled the amendment to ask two main questions. First, what is a "competent authority"? That is not specifically stated in the definitions clause, Clause 52.

Secondly, why does this provision bypass the judicial authorities? Earlier, in a different context, the noble Lord, Lord Goodhart, raised the point about the desirability of bypassing judicial authorities. Why do the Government think it appropriate that there should be no judicial oversight of the issuing of such warrants? Surely one could argue that the advantage of judicial oversight would be that it would help ensure a level of independent scrutiny to prevent any unnecessary or inappropriate requests being made. I beg to move.

Lord Bassam of Brighton: I am grateful to the noble Baroness, Lady Anelay, for her interpretation of her amendment. I think that I can satisfy her on those points.

The amendment is not acceptable to us because in transfer cases the "competent" authority might not in fact be a judicial authority in either one or both of the countries involved. If a prisoner is transferred from the United Kingdom, the request will be made by a prosecuting authority such as Customs and Excise or the CPS, and perhaps usually at the request of the

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police. Those are not judicial authorities but are what are commonly described in these circumstances as "competent" authorities. If a prisoner is transferred to the UK, the request and practical arrangements will be handled by the UK Central Authority and, typically, by the Prison Service, which liaises with the prison, so that there is no involvement of a judicial authority.

So while the authority at the requesting end of the process may be a "judicial authority", it may well be a different, non-judicial authority at the executing end. For that reason, it would not be appropriate to refer only to judicial authorities. We would not expect a judicial authority to make the arrangements for the transfer of prisoners in the UK. In our view, that is quite properly the responsibility of the police and Prison Service, who have the relevant experience and necessary expertise to ensure that all arrangements for the secure transfer of the prisoner run smoothly. So in our view there is no need for the independent judicial authority to be involved.

For those reasons, and because of the way in which we see the provision working—probably much as it does now—we believe that the amendment is inappropriate.

Baroness Anelay of St Johns: I am grateful to the Minister for his response. In obtaining clarity on this Bill, I sometimes seem to take one step forward but two steps back. There was certainly considerable progress in what the Minister told the Committee, but I am still not completely happy with the picture of what a "competent" authority might be in these new circumstances. I certainly may wish to return to these matters at a later stage. For now, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 114:

    Page 27, line 14, at end insert "and if before making the statement the person making it was offered access to advice on the legal consequences of a transfer for the prisoner and has either received such advice or has refused to request it"

The noble Lord said: The amendment is based on a proposal by Justice. As usual, I declare an interest in that organisation as one of the vice-chairs of its council.

This power could have significant consequences for a prisoner who agrees to the transfer. Under Clause 47(4), a warrant may be issued to transfer a prisoner abroad only if the prisoner or some appropriate person on behalf of the prisoner has in writing consented to the transfer being made. That is all very well as far as it goes, and of course we welcome the fact that it is a voluntary transfer. Once given, however, that consent is irrevocable. It is an important safeguard to ensure that that consent has been given freely on the basis of adequate information. A transfer of prisoners can have a significant impact on the rights of the persons concerned. Consent to the transfer should be based on full knowledge of the legal implications.

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While, obviously, a person cannot be compelled to accept the offer of advice, we believe that it should be a requirement on the face of the Bill that there should at least be an offer of legal advice to the prisoner regarding the possible consequences for him or her of the transfer, so that the consent can be given on the basis of full knowledge of the legal consequences by the person giving the consent. I beg to move.

Lord Bassam of Brighton: The Government certainly appreciate the motives behind the amendment. Its primary intention is clearly to protect prisoners, and to add an additional layer of protection for prisoners, by ensuring that they are offered legal advice before they consent to transfer. However, we consider that the clause already contains more than adequate safeguards for the prisoner. We therefore contend that the amendment is unnecessary. It might help if I explained roughly how we expect the arrangements to work.

Clause 47 builds on existing provisions in Section 5 of the 1990 Act, which enables the UK to transfer a prisoner to another country to assist that country's investigations. Clause 47 introduces slightly different arrangements, enabling the UK to request that a prisoner held here be transferred overseas to assist with our own investigations, should such a situation arise. In a way, these new transfers should be much more straightforward for the prisoner. He or she will be transferred at the request of the UK authorities, rather than at the request of a foreign authority whose procedures would not necessarily be familiar to our Prison Service.

The clause does not introduce anything fundamentally new or innovative; it merely extends existing practices. In relation to the existing procedures under the 1990 Act, prisoners are free to seek legal advice in relation to transfers before they consent to them. It is, however, not automatically provided, and to do so would place an unnecessary burden on prisons.

The Government do not see merit in having a special arrangement for these new types of procedure, which differ from those in the 1990 Act. Transfers take place only after extensive contact between all the relevant parties—the competent authorities in both countries, the central authorities and the prisoner—to ensure that all concerned parties are content with the arrangements. I think that the noble Lord, Lord Goodhart, himself observed that the arrangements are voluntary and have to be conducted with the consent of the prisoner. Those are both important aspects of the issue.

Prisoner transfers are organised with close co-operation between the United Kingdom Central Authority, the Prison Service, the prison where the prisoner is held, the police and the overseas authorities. That close co-operation should help

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ensure that the prisoners' rights are properly protected and that they have a full understanding of their position.

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