Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2025
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Lord Timpson
That the Grand Committee do consider the Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2025.
Relevant document: 31st Report from the Secondary Legislation Scrutiny Committee.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
As noble Lords will know, when this Government came to power, we inherited a prison system in crisis. From January 2023 to September 2024, the adult male prison estate routinely operated at over 99% of capacity. Had we exceeded maximum capacity, the consequences would have been unthinkable: with nowhere to put new prisoners, the police would have stopped making arrests and courts would have suspended trials. It could have led to the total breakdown of law and order, with criminals running amok on our streets.
This Government carried out a series of emergency release schemes to prevent that disaster. At the same time, we launched the independent sentencing review, with one clear goal: to make sure we never run out of prison places. The highly regarded former Lord Chancellor, David Gauke, and his expert panel published their recommendations on 22 May, and the Government accepted the majority of them in principle.
One of the specific areas we asked the review to look at was how we tackle the number of foreign national offenders in our prisons. They currently account for around 12% of our prison population—that is 10,772 foreign national offenders as of June this year—and cost British taxpayers millions of pounds every year.
The Government have made it very clear that foreign nationals should be in no doubt that the law will be enforced, and, where appropriate, we will work with the Home Office to pursue their removal. I am pleased to say that in our first year of government, we have removed 14% more foreign national offenders than in any year that the previous Government were in office. But we must go further and faster, in removing individuals who have broken our laws and who have no right to be here.
The draft instrument before the Committee today implements the sentencing review’s recommendation to reduce the minimum period that foreign national offenders have to spend in prison from 50% to 30% of the custodial term, and to increase the window in which they can be removed.
I thank the Secondary Legislation Scrutiny Committee for its consideration of this instrument and its report.
As noble Lords will know, the Secretary of State has a power to remove eligible foreign national offenders—those serving a determinate sentence who are liable to be removed from the UK—from prison for the sole purpose of immediate deportation. This is referred to as the early removal scheme. Foreign national offenders serving indeterminate sentences, life and sentences of imprisonment for public protection are outside the scope of the scheme. Prisoners serving a sentence for a terrorism-related offence set out in Schedule 19ZA to the Criminal Justice Act 2003 are also excluded.
The power to remove a foreign national offender under this scheme is discretionary, and prison governors can refuse to remove individuals where it would undermine public confidence in the criminal justice system—for example, where there is clear evidence that the prisoner is planning further crime, including plans to evade immigration control and return to the UK or dealing in class A drugs in custody—or, finally, where there are serious public safety concerns regarding early removal.
Under the current rules, eligible offenders can be removed up to 18 months before the earliest release point of the sentence, provided they have served one-half of the requisite custodial period. This SI amends the Criminal Justice Act 2003 to allow foreign national offenders to be removed up to four years before the earliest release point of their sentence, subject to having served 30% of the requisite custodial period. This means eligible offenders can be removed from prison earlier.
At current removal rates, we expect this change to free up to approximately 500 prison spaces a year. Not only will it help us to safeguard prisons from collapse, with all the risks that poses to the public, it will also prevent taxpayers’ money being spent to keep foreign nationals in this country any longer than necessary.
Noble Lords will also know that the Government are seeking to go further still in the Sentencing Bill, which was introduced on 2 September, by removing any minimum custodial requirement, so foreign national offenders can be removed from prison immediately after they are sentenced. In line with the existing early removal scheme, this further change will apply to all foreign criminals serving a determinate sentence, except terrorists and prisoners serving indeterminate sentences, such as life, who will be excluded.
Until this change takes effect, this SI will ensure that foreign offenders with no right to be here can still be removed from prison for the purpose of deportation earlier. This will protect victims by ensuring that those individuals can never offend in this country again, and if they return in breach of a deportation order, they will be liable to serve the rest of their sentence.
Indeed, concern for the protection of victims is driving the changes we are making through the sentencing review and now the Bill as a whole. By ensuring that we never again risk running out of prison places, we will ensure that our criminal justice system can function effectively and sustainably, keeping us all safe.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am very grateful to the Minister for his helpful and brief introduction to what is, in effect, a relatively simple instrument. It comes against a background, as he explained, of the appalling shortage of prison places that the Government inherited and that has only got worse, inevitably, during this Government. The overcrowding that has been the result of that shortage and the crisis that has given rise to the early release scheme have to be ended as quickly as possible; for example, the use of police cells where there has been simply no space for custody within our prisons is unacceptable, and there has been an unholy scramble for places for prisoners wherever they might be found across the estate. That is the inevitable result of a prison system running at 99% of capacity.
The consequences of the prison shortage have been outlined by the Minister, and the clear goal of the Government has been to reduce prison numbers over time, although they rightly accept that that will take a great deal of time. I know the Minister is concerned to concentrate on shorter sentences and rehabilitation, but I am grateful to him for putting the numbers on this instrument—that it is expected to save 500 prison places a year, which is a significant number.
However, in one sense, this instrument is directed at an easy target, because the deportation of convicted foreign offenders, who are liable to be deported anyway, is generally justified in principle for all the reasons the Minister gave and is widely supported. It may also be said that our national Government have little interest in what happens to deported prisoners after they are deported, so that if they leave our prisons earlier than envisaged at the time of sentence, that does little harm, but the instrument rightly excludes some serious offenders from the ambit of the reduction.
However, I note the regret of the Secondary Legislation Scrutiny Committee at the lack of review of the need for changes in this early removal scheme. The committee was concerned at the lack of information given to Parliament as to both the number of foreign national offenders likely to be affected by these changes and the treatment that such deported offenders would be likely to receive in their home countries following deportation. The committee reported that
“it would have been helpful for the EM to include background information … on FNO sentences and the treatment of deported prisoners in their home countries”.
It helpfully dug out a considerable quantity of additional information that was within the public domain that it found helpful, and it reported on that.
As a general point, the interest that the United Kingdom Government have in foreign national offenders should not cease altogether when such offenders are deported. At whatever stage, the Government and Parliament have an interest in considering the fate of deportees after they left this country and any continuing risk that they might present if they should return to the United Kingdom—or to United Kingdom citizens abroad, of course. Hence, the overall conclusion of the committee was that, while it recognised the urgency of the need to reduce the pressure on prison capacity, as we all do,
“the information provided with such instruments should … facilitate full scrutiny by Parliament. This means there should be a discussion of the risks as well as the benefits of the measures and adequate background information to understand the full effects; preferably, supported by an analysis of … similar changes”.
It is clearly the committee’s view that Parliament had not had that kind of information to the level of detail that we should have done.
I endorse that conclusion. However, subject to those caveats, I broadly support the measure to enable deportation at an earlier stage of prisoner sentences following sentence.
Lord Timpson (Lab)
My Lords, I am grateful for noble Lords’ contributions to this important debate about foreign national offenders in our prisons.
The noble Lord, Lord Marks, rightly referred to the crisis that we inherited and how having offenders in police cells is not acceptable. What we need is a sustainable justice system. Our prison population is still going to increase. We are building 14,000 more prison places—as I know we have said before, that is 500 more than the previous Government did in 14 years—but we need those extra prison places.
When foreign national offenders are deported, what is clear is that they are not welcome back. Although deportation policy sits with the Home Office, for me, it is clear is that, if they return, they will be locked up and will finish their sentence. The noble Lord, Lord Sandhurst, rightly referred to our desire to deport more of our foreign national offenders. We have increased that figure by 14%, but we know that more can be done. That is why this legislation will be helpful.
I hope that the noble Lord, Lord Sandhurst, will be interested to know that, before the Recess, I went to HMP Huntercombe, which is a prison for foreign national offenders. It was clear that, although the governor knew that he could refuse to remove prisoners, the new foreign national offender team that we have in the prison—as in 91 other prisons—was making a big difference in supporting foreign national offenders leaving early, as well as encouraging them to do so. That is starting to make a difference, but it is clear that the Sentencing Bill is needed to help us get a sustainable justice system; that Bill has within it immediate deportation post sentencing.
A quarter of our foreign national offenders are on remand so have not yet been convicted. I am aware that the previous Home Secretary—I have not spoken to the new Home Secretary since she has moved across Westminster—was looking at Article 8 as well.
The proposed changes in the Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2025 will enable the Government to remove foreign national offenders from prison for the purpose of immediate deportation earlier in their sentence. By removing them from the country earlier, we will better protect victims from their reoffending. This will also help ease a prison capacity crisis inherited from the previous Government, keeping the public safer and ensuring that less of their tax money is spent on those who come to this country and abuse our hospitality by committing crime.