PARLIAMENTARY DEBATE
Prisons - 24 October 2023 (Commons/Commons Chamber)

I beg to move,

That the draft Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2023, which was laid before this House on 16 October, be approved.

Last week my right hon. and learned Friend the Lord Chancellor made a statement to the House setting out a number of reforms in which our sharp focus is public safety. We will ensure that the worst offenders stay locked up for longer; further enlarge our prison capacity, building on the recent growth that has been achieved, which is unprecedented since the Victorians; and ensure that that capacity is put to best use for public protection.

The removal of foreign national offenders is a priority for this Government. Between January 2019 and March 2023, we removed 14,700 foreign national offenders from the country, but there are still 10,000 FNOs in our prisons, each of them taking up a prison place at great expense to the British taxpayer. While my Department is working closely with the Home Office to increase removals, there is still more that can be done.

As the Lord Chancellor set out in his statement, it cannot be right that some of these individuals are sitting in prison when they could otherwise be removed from the country. The early removal scheme exists to deport foreign national offenders. This means that any foreign national who is convicted of a crime and given a prison sentence—with the exception of those convicted of terrorism or terror-related offences—is considered for deportation. We also remove foreign offenders through prisoner transfer agreements, which enable prisoners to be repatriated during their prison sentence. Those agreements also operate to bring British national offenders back to the UK, and we currently have over 80 such arrangements in place with other countries.

The early removal scheme—the subject of this debate—allows for foreign national offenders to be removed before the end of their sentence, subject to a minimum time being served. Once removed, they are subsequently barred from re-entering the UK, and we are clear that any illegal re-entry will see them returned to prison, where they will serve the rest of their sentence. The draft instrument before us today will ensure that certain foreign national offenders can be removed earlier.

Could my right hon. Friend the Minister clarify that last point? Is he saying that someone who is removed at the end of his or her sentence cannot come back once they are free? They have served their time here, and therefore, in principle, they have paid the price for their crime, but if they go back to their country and want to come back, they are not allowed to do so.

My right hon. Friend is correct that, when someone is deported in this way, they are not allowed to return. Were there time remaining on the sentence, as I outlined, that time would be servable if they did come back illegally.

This instrument will ensure that certain foreign national offenders can be removed earlier. We seek to extend the removal window in the early removal scheme from 12 months to 18 months, meaning that we would be able to deport an eligible foreign national offender up to six months earlier, still subject to the minimum required proportion of time having been served. This builds on changes we introduced last year in the Nationality and Borders Act 2022, which extended the maximum from nine to 12 months. As I just alluded to, we also added the “stop the clock” provision, so that anyone removed from the UK under the early removal scheme will have their sentence paused following removal and reactivated if they illegally return to the UK at any point, which means returning to prison to complete their sentence.

Does the Minister agree that it is unsustainable that foreign national offenders in our prisons are costing the taxpayer £500 million a year, and that the actions he is taking will ensure that there are savings in the system, so that prisons can work more efficiently?

My hon. Friend is exactly right about the significant costs involved. It is expensive to keep somebody in custody, at an average of £47,000 a year, and we want to make sure that the British taxpayer is not paying unnecessarily for people who do not need to be here and can be removed to their home country and not be allowed to return. Extending the window to 18 months will make it possible to do so for certain foreign national offenders at an earlier point. In preparation for this change, the Home Office is increasing the number of caseworkers to facilitate those removals, and that is the central part of the combined effort between the Ministry of Justice and the Home Office.

On that point, does my right hon. Friend share my concern that Opposition Members have previously tried to block the deportation of dangerous criminals, and can he tell me what the Home Office can do to ensure that does not happen again?

I very much share that concern. It is all very well for people to say that they are in favour of making these removals, but their actions have to follow their words. I am afraid that, all too often, that is not what we have seen from Opposition Members, as my hon. Friend rightly points out.

I think the Minister said that offenders sentenced to over a year would be considered for deportation. Is it the case that there is a duty to remove those offenders and that that would also apply to anyone with EU settled status convicted for over a year—they would be returned to their home country and barred from coming back to the UK?

Of course, the rules are as per the broader immigration rules and people’s citizenship rights. What we need to make sure is that, at the earliest opportunity, we are making that move and deporting those eligible foreign national offenders to their home country. We estimate that this change will add around 300 foreign national offenders to the early removal scheme’s eligible caseload at any one time. In addition to that scheme, as I mentioned, we have prisoner transfer agreements, including our new agreement with Albania, which came into force in May last year. We are looking to negotiate further such agreements.

We are a Government who are unashamedly tough on crime. By removing more foreign national offenders earlier in their sentence, we will be saving the taxpayer money, banishing criminals from our shores, and ensuring we have sufficient prison places to keep the worst offenders locked up for longer.

I thank the Minister for his speech, and for a valiant attempt to defend 13 years of failure, not just within our prisons but across the wider criminal justice system. The Opposition will be supporting this order—the change to the timing of release for foreign national offenders—because the Government have got themselves into a mess and, once again, it is the job of the Opposition to help them get out of that mess. We will be supporting this change because we are a responsible party, and because we know that the crisis in our prisons needs to be addressed. The order is a necessary measure to tackle the overcrowding crisis in our prison estate. However, I want to make it clear that it is a half-baked measure, cooked up in a panic in the Department. It is a change that has neither been consulted on nor planned, one that comes as part of a quick rush to address the overcrowding crisis—a crisis that has been long coming, but I will get on to that later.

Mr Deputy Speaker, we are both old enough to know that this is a theme under Conservative Governments. I recall that, back in the 1990s, prisons were so poor that prisoners were escaping with ease—the Conservatives are in such dire straits that they have begun recycling their scandals. It is no wonder that the public, having been through this, know what failure looks like. That is what we are confronted with today: a failure to protect the public, a failure to protect victims, and a failure by the Government to ensure that our prisons have enough space.

I will cover three areas in my remarks: the lack of planning around our prison population, the implementation of this new programme, and the wider issues around victims. Let us first look at the lack of planning. The overcrowding crisis in our prisons has been looming for years, with the National Audit Office, the Justice Select Committee and the Chief Inspector of Prisons all having warned the Government about it. In 2020, the Government were told specifically by the National Audit Office that they were unlikely to be able to build the 20,000 prison places they promised by the mid-2020s on time, yet the Government ignored that warning. I guess those 20,000 prison places are in the same place in the sky as the 40 new hospitals and 50,000 new nurses.

Back in 2016, the then Conservative Prime Minister said of the Prison Service that

“the failure of our system today is scandalous”.

If it was scandalous in 2016, I am not sure what word we would need to use now—perhaps something rather unparliamentary. When asked about this failure, the Government and the Ministry of Justice will point to the new prison places they promised, yet only around 25% of those places have been delivered. Plans for new prisons have been delayed and I understand from a report in The Guardian that one MOJ official said that badgers—yes, badgers—were to blame for a delay in building a new prison. The crisis has got so bad that the Government have been forced to use police cells as alternatives to prison places.

We should also remember that this is not the first time that the Government have made promises about the removal of foreign national offenders. Back in 2015, the then Prime Minister, the former Member for Witney, spent £25 million to help Jamaica build a new prison—of course, like a lot of the promises he made, it fell through. Successive Conservative Governments have made promise after promise on foreign national prisoners, and those promises have fallen through every time. This is not even the first time that this policy has been looked at: we saw changes regarding foreign nationals in recent legislation, and the Government considered changes to the early removal scheme last year.

The shadow Minister has mentioned overcrowding in our prisons, which is a problem. As the Minister outlined, there are 10,000 foreign national offenders in our prison estate. I welcome the fact that the shadow Minister will vote for the motion today, but can she explain to this House why at every stage, her party has voted against legislative measures to ensure that those people are removed, which would remove the problem that she is castigating us for?

I am new to this brief, but I do not believe that is the case.

If the Government considered this change in the past, why did they not introduce it back then? Did they think it was better to wait for a crisis? We should remember that this prison crisis—which has been looming for years—is having an impact every day on prison staff, inmates and the victims of crime. We still have prisoners having to use a bucket as a toilet in their cell. We have prisoners locked up for 22 hours a day, and prisons so understaffed that prison officers cannot even take prisoners to the library or to classrooms for education. Education is so essential to those prisoners’ rehabilitation, and for many of them, it is a condition of their eventual release. It is no wonder that the latest figures show that the reoffending rate has risen: it now stands at 25% for male former prisoners. That cycle of crime creates more victims.

I now turn to the detail of the order and its implementation. The policy will require significant input from the Home Office, along with the MOJ. As one prison governor has said,

“I expect it will require significant numbers of new Home Office staff for this initiative to be effective.”

We understand that the Home Office already faces huge problems with staffing, and I am sure I speak for many Members across the House when I say that I do not have complete faith—or even much faith at all—in the Home Office after the mess we have seen them make over the past year. Nor can I say I have much faith in the Home Secretary, the right hon. and learned Member for Fareham (Suella Braverman), who always seems to be auditioning for the role of the next Leader of the Opposition.

We also know that this Government have talked a lot about foreign national offenders, but after 13 years of Conservative rule, the number of removals of FNOs has dropped by 40%. The Government will point to the impact of covid, but in 2022, the Government were removing around half the number of foreign national offenders that they were pre-covid. What are the Government doing differently this time? Whether they are removing foreign nationals with 12 or 18 months left of their sentence, the point remains that the Government still need to be able to remove offenders from the UK.

I am sure the Minister will have prepared lines about the Opposition and our approach, so I will give him advance notice that we do have a plan. Labour would create a returns unit to triage and fast-track the removal of those who have no right to be in the UK, including foreign national offenders. We will recruit an additional 1,000 Home Office caseworkers to tackle the drop in removals that we have seen since the Conservatives entered office in 2010.

Having looked at both the Government’s statement last week and the memorandum attached to this statutory instrument, I could not see any information about the estimated cost or the additional resources needed, including for any legal costs or challenges to deportation. The Government need to set out exactly how many more caseworkers are needed and how much this plan will cost the taxpayer. The prisons crisis is already costing taxpayers; for example, over £20 million is spent on using police cells for prisoners, and I suspect that number will rise. A running theme from last week’s announcement is the large hole in funding. In particular, the grossly overstretched probation service will be expected to pick up a lot of the pieces from the Government’s latest crisis.

I want to finish by speaking about victims, in the context of both this statutory instrument and the wider criminal justice system. As a party, we have been clear that we want a justice system that works for victims, protects them from crime and supports them. I have one question for the Minister: could foreign offenders who commit violent or sexual offences be freed to their home country up to 18 months early because of this change? Will he take this opportunity to reassure victims that that will not be allowed to happen? Victims of crime will be worried that perpetrators will be released early. Over the past month, I have heard from prison staff, probation officers, inspectors, non-governmental organisations and so many across the criminal justice system about just how much of a mess our prisons and wider justice system are in, and that is because of 13 years of Conservative misrule and mismanagement.

Last week, my right hon. and learned Friend the Secretary of State for Justice and Lord Chancellor announced a package of measures to address offender management, and I thanked him for his contribution and the proposals that he outlined. Importantly, we spoke then, and I want to speak again today, about the removal of foreign national offenders from our country.

It is absolutely right that the Government do everything they possibly can to remove foreign national offenders, because they are living in the UK—often on visas, and using our laws to keep themselves here when they actually have no right to remain in this country—while committing offences and posing a danger to the public. That breach of public safety is a clear violation of their right to remain in the UK. When an offender is convicted and given a custodial sentence, it is a high bar to qualify for deportation. Certainly during my three years as Home Secretary, as the Minister mentioned, we deported around 12,000 foreign national offenders, despite the pandemic and the travel restrictions at the time. With each FNO deported, our streets and communities become that little bit safer, and that is something on which we should all be focused. Those who remain in this country still pose a risk to safety. Sadly, we have seen some come out of our prisons, stay in our communities and commit further dangerous offences and serious crimes.

As Ministers on the Front Bench know, some in this House—I have to say this quite starkly, particularly having listened to the shadow Minister, the hon. Member for Brentford and Isleworth (Ruth Cadbury)—have campaigned on this year after year. In December 2020, when I was Home Secretary, 70 Opposition Members wrote to me to stop a deportation flight to Jamaica, and murderers, rapists, drug dealers—you name it—were on that flight. Day after day, Home Office Ministers would come to this House and do a valiant job in speaking about protecting the public and why the people on these flights had to be removed. It is quite shameful to hear such a level of denial from the shadow Minister, which I simply do not think is at all acceptable.

I was lobbied, day in and day out—often through national newspapers, I should add. Letters were even sent to me by those on the Opposition Front Bench, in which they relentlessly broadcast their support for criminals, as they did on social media. They made the case for murderers and sex offenders staying in our country and being able to live in our communities. They made human rights claims to enable dangerous criminals to stay in our country. They have shown more respect for and interest in the rights of these dangerous criminals than those of the victims, or in the public safety of people in our country. That is why I say, as a former Home Secretary, that the Labour party can never be trusted on law and order issues, or on offender management, and its previous track record on them speaks volumes. Living in the UK is a privilege, and those who come here, break our laws and commit serious offences should expect to have their rights removed and their liberty taken away. This is why we should be unapologetic and robust in our approach to the removal of FNOs.

The SI will enable FNOs to be deported directly from prisons sooner—18 months, rather than 12 months, before release point. It is vital that offenders be removed from our country. Of course, everyone wants that, including the public, and victims in particular. I spent time during my period in Government with the victims of some of the most appalling crimes committed by FNOs, and those victims’ lives are shattered when they see those individuals not being removed from our country, but being left to be released and to rebuild their life in our country at the taxpayers’ cost, which is just wrong. I would like to ask my right hon. Friend the Minister a series of questions about the practicalities of how this scheme will work, as the change is significant and has an impact on the punitive and deterrent element of sentencing.

First, what consideration will the Government give to the impact on a victim of the early removal scheme, and the measures allowing release 18 months early? Many victims will expect an offender to be in custody for as long as possible, as punishment for their crimes, and they will have concerns about an offender being released and enjoying freedom in the country of their nationality. Victims of rape, sexual offences and other serious offences will rightly have significant concerns about the perpetrators of these horrific crimes effectively receiving back a degree of their liberty. I have a constituent who was a victim of such a crime, and prior to this measure coming in—under the current arrangement, which allows release 12 months early—she was concerned about the person who caused her the most appalling harm being at liberty, even if no longer in this country, and she made representations to me that the offender should not be allowed to be released early. It would be helpful if the Minister spoke about the practicalities of how these offenders will be managed.

Secondly, I would welcome from the Minister details about the communications that victims will receive. As we know, the Victims and Prisoners Bill is going through this House. Many of us from across the House have campaigned for it—in my case, for almost a decade. It gives a welcome focus on victims, and I back the Bill for supporting the rights of victims in the criminal justice system and getting that system rebalanced. That Bill is coming in because of the concern and frustration of victims, obviously including the victims of FNOs. I hope that the Minister will provide assurances and clarity about how victims will be supported. They do get some communication, but they are heavily retraumatised when they hear about those individuals being released from prison, given the implications that that may have.

Thirdly, given that some offenders will be dangerous, and will show no signs of remorse or make any efforts to rehabilitate, will there still be a process for keeping dangerous offenders locked up, rather than eligible for early release?

Fourthly, can the Minister explain how the Government will deal with the enforcement of this scheme when an offender—and I am sorry to say this—makes human rights claims to try to block and frustrate their deportation from the UK? Again, that brings me back to the appeals I used to receive from the Labour party when I was Home Secretary.

On the other measures announced by the Secretary of State for Justice and Lord Chancellor last week, I hope that, in his summing up, the Minister can give further details and assurances, particularly on the offender management package and the proposals for staffing. I appreciate that I am asking for specific information on staffing, but that has implications for overall offender management. This statutory instrument is of course part of a wider package, and we are not discussing that entire package today, but Ministers on the Front Bench will know of my concerns about the possibility that we will see a repeat of what happened under the early release schemes of the last Labour Government, when offenders committed crimes and absconded. That caused serious concerns and had serious implications for public safety. I am looking for reassurance from the Minister about how the Government’s approach will differ from that of previous schemes, and how we will ensure that victims feel that justice is done, and reassurance that there will be a solid effort to reduce reoffending and its causes.

I congratulate the Government on bringing forward this statutory instrument. The programme set out by the Lord Chancellor for managing the prison population is proportionate and sensible. There is a big backlog and delays in court because of covid; having 10,000 foreign nationals in our prisons is very expensive, and if we are to make place for others, this seems a logical place to start. I have heard some people speak about the crisis of having record numbers in prison, but we were elected to put record numbers into prison, so most of my constituents will be rather pleased.

We need to build more prisons, which we are doing, but the planning system is sometimes painfully slow, and we need to manage what we have. Foreign prisoners seem to be a sensible place to start; we can clear out those places and send more people to prison. What we have here is sensible, and if we work through the measures announced by the Lord Chancellor, and are given some of the reassurances that my right hon. Friend the Member for Witham (Priti Patel) asked for, I think Conservative Members will be very pleased indeed.

This is a perfectly sensible measure. I support it, as I hope will the whole House. It is a modest measure that will not make a vast difference, but it is worth while and part of an overall very sensible package that the Justice Secretary announced. We must be honest: the pressure in our prisons is the result of decades of underfunding. All parties have responsibility for that. It is not a question of blaming one Government or another; there has been a long period of this. We must also level with the British public: whenever we in this House demand longer prison sentences, or to lock more people up, it comes at a cost to the public purse. We must be up front with the public. Locking someone up in prison is sometimes necessary for public protection, but it is also exceedingly expensive, at £45,000 to £47,000 or so per annum.

As well as introducing this discrete measure, and the other measures in the package announced last week, we must think seriously about who should be in prison. Prison ought to be for those who are a threat or who are dangerous, but as anyone who has dealt with the system will know—some of us have done so for most of our working life—many people in prison are there because of inadequacy or failures earlier along the track. There are failures in education or in mental health, failures in parenting or social services, and failures in a raft of other areas around addiction and so on. People are there because their life is in a mess. They have done wrong and committed crimes, and they certainly need a degree of punishment, but lengthy periods of prison are not the answer; that is a very expensive way of dealing with things. We have to use prisons sensibly, and be honest about the fact that a degree of rationing is required.

The SI takes a sensible approach, and as I think the Minister will confirm, it does not alter the requirement that a prisoner should have served at least half their custodial sentence prior to release. The pre-release custodial period—the punitive bit—is not changed by this measure, but once someone has gone past that, we can bring forward their release date by 18 months, rather than by 12 months. That is a modest and sensible proposal, but we need a serious debate later in this House about the right way to make use of an expensive, necessary, valuable, but very pricey institution.

I remind hon. Members of my declared interest, in that my brother is chair of the Prison Reform Trust. The statutory instrument is a sensible step forward. A number of measures have been taken to try to alleviate the pressure on our prison system, not least given the large numbers—disproportionate numbers, one could argue—of foreign nationals still in custody in England and Wales. I support the statutory instrument, but I ask the Minister to look at some of the agreements in place for prisoner transfer, to see whether the SI will have an additional, hopefully positive, effect on the statistics.

Last week, the Justice Committee meet an Albanian Minister who was very receptive to the compulsory arrangement put in place between our country and his. It seems that there is scope to go further with some of the measures that we are introducing. Will the Minister confirm how many of those whom we seek to remove through these measures will be women, and how many will be people in youth custody? It would be helpful to get those numbers as part of the overall package, so that we can understand what support and additional resources may be needed to ensure that the removal happens in the appropriate way.

I am grateful for all the contributions to this SI debate, including from the hon. Member for Brentford and Isleworth (Ruth Cadbury), the former Home Secretary my right hon. Friend the Member for Witham (Priti Patel), my hon. Friends the Members for Poole (Sir Robert Syms) and for Bromley and Chislehurst (Sir Robert Neill), and my hon. and learned Friend the Member for Eddisbury (Edward Timpson).

The Chair of the Justice Committee rightly spoke about the need to combine punishment and rehabilitation. Ultimately, the system is for public safety, and both those sides are incredibly important. He rightly said that we must use the system sensibly. He asked me specifically to confirm that this measure does not alter the minimum 50% of time in custody, and he is correct about that. On the point about Albania, we need to make all our prisoner transfer agreements work as effectively as possibly, and with Albania we have a particularly good partnership. It is a very innovative transfer agreement and I am sure there is further that we can go. I will write soon to my hon. and learned Friend the Member for Eddisbury on the question he asked about women.

My right hon. Friend the Member for Witham rightly raised points about victims, and victims must always be at the heart of what we do. I confirm that the victim contact scheme applies in these cases, and I confirm again that the minimum proportion of time in custody also applies. It is not just that the sentence is longer; the proportion of time served will be longer, and it is important that we see that in the context of longer sentences. The average sentence in custody is now considerably longer than it was in 2010. Critically, the move for some of the worst offences from the automatic halfway release point to two thirds of the sentence interacts with this measure, and means that many people will be spending longer in prison than they would otherwise. Overall there is discretion not to remove someone, and that is exercised in certain cases.

The hon. Member for Brentford and Isleworth rightly pointed out that the prison population has grown. She is correct about that. Last week a comprehensive plan was set out by my right hon. and learned Friend the Justice Secretary, which ensures that the worst offenders will stay in prison for longer, and that we also make best use of the capacity we have. The hon. Lady also talked about overcrowding, and I gently remind her that prison overcrowding is lower than it was at the time of the change of Government in 2010, and that there are 2,000 fewer people in overcrowded conditions in our prison population than there were when the Labour party was in government. I also gently ask: where are her Titans? If the Labour party’s build programme had taken place as planned, many of these things would not have come to pass.

The plan set out by my right hon. and learned Friend builds on what has already been achieved, first in the rapid increase in capacity that we have seen, with 5,000 places over the past year, and tougher sentences for the worst offenders, and also with the progress on rehabilitation and what has been done on drugs, employment and housing. That has resulted in the reoffending rate coming down. That is so important, because most crime is repeat crime, and when the reoffending rate comes down, overall crime comes down. That is exactly what we have seen.

The hon. Member for Brentford and Isleworth asked why we have not done this before, and the answer is that we have, given the changes that we made in the Nationality and Borders Act 2022, including the stop-the-clock provisions, and the new prisoner transfer agreements, including the agreement that I alluded to with Albania. That combination of factors has seen an increase of 14% in the number of foreign national offenders removed recently, year-on-year.

The Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2023 will extend the benefits of the scheme by bringing forward the time from which a foreign national offender can be removed. This draft instrument is a critical part of the approach of the Ministry of Justice and Home Office to removing foreign national offenders from our prisons and our country. It will ensure that taxpayers’ money is best used to protect the public, and I therefore commend it to the House.

Question put and agreed to.