Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2023

Motion to Approve

Moved by

That the draft Order laid before the House on 16 October be approved.

My Lords, I first thank my noble friend Lord Hunt of Wirral and the Secondary Legislation Scrutiny Committee and their staff for the expedited consideration of this draft instrument and for their report. I apologise that the Explanatory Memorandum which accompanied the order was not as full as the committee considered appropriate. I hope to deal with the points raised very briefly in a moment.

On 17 October last, I repeated the Statement made by my right honourable friend the Lord Chancellor about several measures to reduce pressure on the prison estate, including a presumption against shorter sentences. Today’s instrument deals with one of those measures relating to foreign national offenders. At present, foreign national offenders can be deported no earlier than 12 months before the end of their minimum custodial period under the early release scheme, or ERS. This order increases that period from 12 months to 18 months. All such prisoners must however serve a minimum of half their sentence. We have around 10,000 foreign national offenders in prison at the moment, but over 3,000 of those are on remand. That leaves around 6,500, and this order brings within scope of the early release scheme a further 300 annually. That was the figure that was missing from the Explanatory Memorandum, and indeed the noble Lord, Lord Ponsonby, asked me that very question in the debate following my Statement.

Therefore, we have an additional 300 prisoners within scope. That may not seem a very large number, but as the Secondary Legislation Scrutiny Committee points out, in circumstances where available prison capacity is very tight and often less than 1,000 free spaces, that is a non-negligible contribution to the problem. However, it is quite difficult to say how quickly and in what number prisoners will be deported, because that depends on consideration of individual cases, on Home Office caseworker capacity—hence the need to consult the Home Office when asked the question—and on the number of appeals. None the less, it is an important contribution.

Clearly, as the scrutiny committee points out, a measure of this kind involves making a series of balances between the possible effects on victims and the possible effect on deterrence, as against the severe constraints on prison capacity and the cost to the taxpayer of holding those prisoners. These matters are weighed very carefully by the Government. It is the Government’s duty to reach conclusions on such matters and, as part of the wider policy, this instrument strikes the appropriate balance. Therefore, I beg to move.

My Lords, I am delighted to contribute to the debate on this order. Over the years, many of us have contributed to debates about the rise in our prison population and its adverse impact on the objectives of our prison service. We are told that the removal of foreign national offenders is now a government priority and that they are therefore expanding the early removal scheme. This would have been acceptable if the excuse of overcrowding were not used as the promotion of the policy.

Overcrowding has been in the headlines for many years, and successive Ministers in the Ministry of Justice have identified different solutions to the problem. They have claimed that 20,000 new prison spaces are being built, with the newest jail set to open in the spring.

We have argued, as has the Justice Secretary, that short sentences are not an appropriate punishment because those sentenced do not get the chance to reform themselves. Reliance on community sentences would be more appropriate for lower levels of crimes.

When the state sentences someone to a custodial option, it assumes full responsibility for that individual. How are we discharging those obligations?

Once removed from our prisons, individuals will not be subject to further imprisonment and are free individuals once back in their own country, but the reverse is also true: they will not be allowed to legally return here and will be liable to serve the rest of their sentences.

These measures are a piecemeal approach to penal reform and do not look at the real sources of prison overcrowding, which has ratcheted up our sentencing system. We have failed to address adequately the backlog of outstanding cases in our courts. Despite abolishing IPP sentences, the problem remains.

We welcome the intention against short-term sentences, but reconviction rates are still very high. My noble friend Lord Marks has already stated the need to concentrate on rehabilitation and greater use of community and suspended sentences. Remand in custody is still very high. The former Justice Secretary, David Gauke, has said:

My Lords, we had an interesting discussion about this on Tuesday in the Secondary Legislation Scrutiny Committee, of which I am a member. As the Minister said, once again the Explanatory Memorandum was not all that we might have wished for. The committee now keeps a scorecard that shows which government departments are the most egregious in providing inadequate Explanatory Memoranda, so we will effectively have a league table, where some departments are up for promotion and some for relegation.

In this case, I am interested whether the Minister can tell us whether the nationalities of the prisoners involved are preponderant in two or three countries. I think that Romania and Albania were suggested as possibles during our discussion on Tuesday. If that is the case, what discussions have we had, if at all, with those countries and their judiciaries and police forces about the imminent arrival of some of their citizens? If another country were to do the same and had a large proportion of our citizens in prison who were about to be sent back to our shores, some sort of communication between the different national authorities would seem appropriate.

My Lords, I support the Motion. However, people should not be confused that the removal of these foreign national offenders means that they will not return; it does not stop their re-entry into the country.

I am concerned by the small numbers relative to the size of the problem: there are 88,000 people, so to remove 300 at most is not an awful lot. What worries me most is that the biggest problem is the state of sentencing and the law around it. The drift is always upwards. I have yet to hear a political party of either persuasion argue for lower sentences.

That may sound odd coming from someone of my background, because I have always supported the fight for serious offences getting serious sentences. However, during my time in policing, we have seen a rise from well below 50,000 people in prison to 88,000. Surely at some point someone must do something about the major cause, which is the law saying that high sentences are OK and judicial sentencing councils being pressured to increase sentences to the maximum within that.

While I support this Motion for what it can do, I worry that it is not sufficient. I know that the Government are doing other things too, but without addressing the sentencing aspect in those cases where it should be addressed, it will not have the effect we desire.

My Lords, we in the Opposition support this order. It is sensible, and it is one element in a raft of measures recently announced by the Lord Chancellor. It is designed to address the overcrowding crisis in our prisons.

I thank the Minister for his recent letter, which I received yesterday, which stated that, as a result of extending the early removal scheme from 12 months to 18 months, around 300 more foreign national offenders will be brought into the early removal scheme window at any one time, as he explained in his introduction. We look forward to seeing the other measures proposed by the Lord Chancellor being brought forward through new primary and secondary legislation.

However, this crisis was predicted by the National Audit Office, the Justice Committee and the Chief Inspector of Prisons, and I am sure that HMPPS has been well aware of this impending crisis for many years. Though the crisis was predicted, the proposed changes, including this one, were neither planned nor consulted on.

As the noble Lord, Lord Dholakia, said, 20,000 new prison places were promised by the Government for the mid-2020s. This target will not be met, and the Government have had to revise their timetable on several occasions. Three proposed new prisons are stuck in the planning system, and there is growing scepticism that the Government will be able to meet their revised timetable.

In some establishments, prisoners are locked up for up to 22 hours a day, and prisons are so understaffed that many of the activities so important to rehabilitation are simply not happening, such as trips to classrooms for education, to the library, or other activities, all of which aid rehabilitation. Of course, for some prisoners, these activities are a condition of their eventual release. The tragedy of the situation is that we are now seeing reoffending rates increasing: 25% of male former prisoners will reoffend within one year of their release.

My Lords, I thank all noble Lords for their interventions on the matter of this order. A number of very wide-ranging points have been made. I thank particularly the noble Lord, Lord Dholakia, for his comments on sentencing more generally, and indeed the noble Lord, Lord Hogan-Howe, and just now by the noble Lord, Lord Ponsonby, for their points on where sentencing is going in general terms. It is a very important general question, which the Government are keeping under review and which I am sure public opinion will discuss. But I think today is not the time to go into detailed discussion of sentencing policy.

As far as the prison estate is concerned, we hope that the package of measures that the Lord Chancellor announced the other day, including a presumption against shorter sentences, will over time progressively reduce those pressures. It is fair to point out, as the noble Lord, Lord Ponsonby, has just mentioned, that every Government for the last 15 years or so has faced these pressures. They have been extremely difficult to deal with, particularly in the recent past because of the sharp increase in remand prisoners and severe difficulties in the planning process—but for which we would be in a very much stronger position. None the less, the Government are keeping the matter under close review.

As regards the points made by the noble Lord, Lord Russell of Liverpool, I hope that, when this league table becomes known, the ministry for which I am responsible manages to keep at the bottom of the table. It is the sort of table one wants to stay at the bottom of, rather than at the top, unlike most league tables. In relation to the specific point made about arrangements with Albania, Romania and other countries, I will, if I may, write to the noble Lord setting out the position, which is affected not only by the early release scheme but by reciprocal prisoner transfer agreements to take each other’s washing in, if I may put it loosely and inappropriately.

Motion agreed.

Sitting suspended.