Absolutely. As somebody who has been a Minister on and off for nearly 20 years, I am a fully-paid subscriber to ministerial accountability and responsibility to this House and the other place. I am not a Minister who will, if this happens again, pass responsibility on to civil servants.
On the question of the language, I apologise again for the quality of the memorandum on this occasion. As I said a moment ago, the Home Office has put in place robust processes to improve the quality of material put before the scrutiny committee, and again, this includes personal oversight by the Ministers, with a named civil servant within the apartment accountable for the development of these draft instruments. As I said a moment ago, the buck stops with Ministers.
In the example given by my noble friend Lord Hodgson, he would not be a prisoner in the UK, therefore the temporary transfer provisions simply would not apply. They apply only if the person is a prisoner in the UK. The Secretary of State then has to be satisfied, first, that the prisoner consents, and secondly, that no alternative means of providing evidence exists. In the evidence given by Stephen Jones on 12 September, we read:
“Baroness O’Loan: What if the prisoner refuses to go? … Stephen Jones: If the prisoner refuses to consent to the transfer taking place, then it will not happen”.
I hope that reassures my noble friend that he can go and watch his favourite football team in Bucharest and be an innocent witness to an exchange which may result in a crime being committed. He can come back to this country confident that he will not have to go back there under the provisions of the EIO.
The noble Baroness, Lady Ludford, and the noble Lord, Lord Rosser, raised the question of what will happen if a prisoner is not returned. First, the temporary transfer of persons held in custody for the purpose of investigation has already been possible for a number of years under the existing mutual legal assistance system, which the EIO replaced, so this order is not introducing a new provision. However, the UK central authority’s records suggest that the numbers for transferring prisoners held under custody are extremely low. We are aware of one instance of this happening in the past five years. The prisoner is normally able to give evidence in person through court or through video telephone conferencing, and it would have to be authorised by a Minister.
Under the directive, a country receiving a prisoner under an EIO must return the prisoner back to the executing state. However, I accept that the point is not explicit in legislation, which I think was the point raised by the noble Baroness, Lady Ludford. As with other matters relating to EU law, the Court of Justice of the European Union will be competent to give a view, in this instance on the application of the directive,
and in particular on the interpretation of Article 22.1, which we consider makes it clear that a prisoner has to be sent back to the executing state—the UK—within the period stipulated by the executing state. Such an interpretive ruling would be binding on the member concerned.