The Minister of State, Ministry of Justice (Mr. David Hanson): I beg to move,

The Chairman: With this it will be convenient to consider the draft Early Removal of Fixed-Term Prisoners (Amendment of Eligibility Period) Order 2008.

Mr. Hanson: I welcome you to the Chair, Mrs. Dean. I thank my hon. Friends for their presence and I look forward to a useful and interesting debate with all the distinguished members of the Committee.

Our purpose is to discuss amendments to the early removal scheme for determinate-sentence prisoners who are liable for deportation or administrative removal from the United Kingdom. The orders clearly set out our proposals to extend the scheme to enable foreign national prisoners to be removed up to a maximum of 270 days early, rather than the current 135 days. This is the first time that these specific order-making powers have been used.

It might assist the Committee if I set out the background to the early removal scheme and the way in which it operates. As I am sure that hon. Members are aware, the scheme applies to foreign national prisoners and has been operating successfully since 2004. To date, more than 3,000 prisoners have been removed to their country of origin under the scheme.

The scheme applies only to those foreign national prisoners who can be removed to their country of origin. Such prisoners benefit from the scheme only if their removal from the UK can be given immediate effect. We have been working to ensure that arrangements are in place to enable us to remove prisoners to their country of origin.

It might reassure members of the Committee to know that prisoners serving a life or indeterminate sentence are not eligible to be considered for removal under the scheme. Furthermore, under the provisions of the Criminal Justice Act 1991, determinate-sentence prisoners serving a sentence of four years or more for a sexual or violent offence are removed under the scheme only if the Parole Board considers that they present an acceptable risk to the community.

Details of prisoners removed under the scheme will be placed on the Home Office’s warnings index. In the event that they return to the UK during their sentence, they can be detected by a border control officer on arrival at the UK border. They can then be returned to prison custody until the point at which they would have been released had they not been removed. I hope that that reassures the Committee about the operation of the scheme.

Given the successful experience of the past three and a half years—particularly our increasing experience of, and success in, securing travel documents from overseas countries and making other arrangements to enable us to remove prisoners—we believe that the scheme can make an even greater contribution to removing criminals from the shores of the UK.

As of December 2007, as hon. Members will be aware, there were more than 11,000 foreign national prisoners in the prison system, representing 14 per cent. of the total prison population, and I know that that concern has been echoed by members of the Committee. That is a significant proportion of the prison population, and although the figure is low in comparison with that in other European countries, it presents us with a number of major challenges. The early removal scheme has a positive impact on the prison population, as well as making a saving for the UK taxpayer. The objective is that foreign nationals should face deportation when they meet the relevant criteria and that deportation should happen at the earliest point in their sentence. The proposals are therefore consistent with Government policy and are of help in dealing with the issue.

On the specifics, the Criminal Justice Act 1991 and the Criminal Justice Act 2003 give the Secretary of State powers to remove foreign national prisoners from prison early for the purpose of removing them from the UK. The scheme is known as the early removal scheme, and to qualify for it, a prisoner must be liable for deportation or administrative removal in accordance with immigration legislation.

The orders amend the relevant provisions in both Acts to expand the removal scheme to enable foreign national prisoners liable to deportation or removal from the UK to be removed from the prison and hence the UK at an earlier point in their sentence than is currently the case. The orders increase the maximum number of days at which a prisoner may be removed from 135 days before the halfway point of their sentence to 270 days before the halfway point of their sentence.

The early removal scheme provisions under the 1991 Act apply to prisoners who are liable to be removed and are serving a sentence of less than twelve months, or a determinate sentence in respect of an offence committed before 4 April 2005. The order also provides that a prisoner liable to removal who is serving less than three years must serve a quarter of the term before being removed from prison. Therefore, prisoners serving less than three months will be eligible for the early removal scheme, whereas under the current provisions they are not. The provisions of the Criminal Justice Act 2003 apply to determinate-sentence prisoners who are liable to removal and are serving a sentence of 12 months or more in respect of an offence committed after 3 April 2005. Section 260 contains the relevant early removal provisions, which are similar to those in the Criminal Justice Act 1991.

The draft Early Removal of Fixed-Term Prisoners (Amendment of Eligibility Period) Order 2008 will amend the Criminal Justice Act 2003 to expand the early removal scheme to enable the removal of foreign national prisoners from prison up to 270 days before the end of the custodial period. This is the first time that the order-making power has been used. The order replaces the current time limit of 135 days with 270 days, which gives the Secretary of State the power to remove from prison a person who is liable to be removed up to 270 days before the halfway point of their sentence. Prisoners serving three years or more will be eligible to benefit by the maximum period of 270 days.

Broadly speaking, I hope that the changes will be welcome to hon. Members. I am sure that they will note that there is a great deal of concern about the question of foreign national prisoners. I believe that the scheme will be welcome and that it will assist with early removal, an objective that is shared by the Opposition.

It will be clear to hon. Members that the Secretary of State is looking to amend primary legislation by instruments subject to the affirmative procedure while the Criminal Justice and Immigration Bill is being taken through Parliament. That Bill will amend the same provisions, albeit in different ways and with different effects. I hope that hon. Members will appreciate that, subject to their approval, these instruments will come into force before the Bill, which is being considered in another place. I expect it to return to the House of Commons very shortly, but I want to ensure that we gain the maximum benefit from this extension to the early removal scheme as quickly as possible.

I commend the statutory instruments to the Committee and hope that hon. Members will support them.

Mr. Edward Garnier (Harborough) (Con): Welcome to the Committee, Mrs. Dean.

The Government have come forward with interesting and important statutory instruments. As the Minister said, they deal with the early release of foreign national prisoners. As my noble Friend Lord Henley said in the other place on Thursday, we will not oppose either measure, so if any of the 10 Government Members serving on the Committee wish to release themselves early, that is entirely up to them. On the day when the Government are launching the saving of Mayor Livingstone, I congratulate the Government Whip on managing to persuade eight Back Benchers to come to the Committee, rather than going out and saving him.

First, I ask the Minister whether these provisions are genuinely designed to get foreign prisoners out of our jails and back home because that is the right thing to do, or to empty our prisons, the population of which is now some 82,000 strong. As we all know, there has been a vast increase in the number of prisoners accommodated in the prison estate since 1997. The number of people in custody has gone up from just more than 60,000 in 1997 to more than 82,000 in the past few weeks. Our prison estate is no longer capable of sensibly and humanely incarcerating, let alone accommodating, those people.

The figure that the Minister was not quite able to speak was over 14 per cent, in that foreign national prisoners represent more than 14 per cent. of our prison population. If that is not something that needs to be dealt with, I do not know what is. As of last December, there were 11,310 foreign nationals in prison establishments in England and Wales. That includes those held under the Immigration Act 1971, including those in the immigration removal centres of Dover, Haslar and Lindholme, as well as those held on remand or serving custodial sentences.

As of 31 December 2007, the largest foreign national population was made up of Jamaican nationals, with 1,278 people from Jamaica contributing to the prison population. Jamaica was followed closely by Nigeria, which provided us with 1,146 people in custody. The Republic of Ireland provided us with 639, Vietnam with 460 and Pakistan with 406. Since the Government came to office in 1997, there has been an increase of 152 per cent. in foreign national prisoners, compared with an increase of only 55 per cent. in British nationals in our prisons.

In October 2007, the Government were required to reveal that two British prisons—Canterbury and Bullwood Hall—were exclusively dedicated to accommodating foreign national prisoners. As I understand it, other prisons will be re-roled for that specific purpose before long. Perhaps the Minister would care to identify them when he replies to the debate.

Her Majesty’s chief inspector of prisons has found that, since April 2006,

the immigration and nationality directorate—

Surprisingly, at December 2005, there were only 2,153 EU nationals in our prisons, although I suspect that the figure has gone up a bit since then. I would not be at all surprised if the number of EU nationals in our prison estate was getting close to, or even exceeding, 50 per cent., given the greater number of countries in the EU and the necessary consequences of freedom of movement.

Three years ago, HMIP—Her Majesty’s inspectorate of prisons—advised the Home Office that, because of the lack of basic communication and co-ordination between the IND and the Prison Service, since 1999, at least 1,023 criminals had been freed from prison—and possibly hundreds more from secure hospitals—after completion of their sentences instead of being deported to their home countries. In July 2002, the Prison Service issued an instruction removing

It seems to us that both those matters added to the problems that successive Home Secretaries, and now the Justice Secretary, have had to face when managing the overall prison population, particularly the foreign national prison population, as well as in relation to public confidence in the criminal justice system and our prison system.

The Government have confirmed that they do not know how many foreign nationals have escaped or absconded from prisons in England and Wales in the past 10 years—perhaps they ought to. In addition, despite what the Minister told us, they have made slow progress in deporting foreign prisoners whose sentences have expired. On 19 February 2007, approximately 1,300 time-served foreign nationals were still in either the IND removals estate or prison.

The administration of foreign national prisoners does not inspire much confidence. For example, criminals from Ukraine and Belarus are not identified as such on prison IT systems but are described as “Russians”, even though those two states have been independent of Russia for the past 16 years. Other examples are almost as egregious.

This is almost funny, but it is not. At the end of September 2007, there were 919 prisoners in England and Wales whose nationality was not known by the Government. I tabled a written parliamentary question at about this time last year because information came to me from somebody who worked in the Prison Service suggesting that some people within the prison system claimed that their nationality was that of Antarctica. I was happy to persuade them that that was not the case and that the prison system did not contain any residents of Antarctica. However, lack of confidence in the Government’s handling of both the domestic and foreign national prison population is such that it is hardly surprising that those sorts of stories get around.

I urge the Government, after 10 years, to stop being surprised by their own incompetence and to start doing things. Although the measures are welcome, they are being introduced for entirely the wrong reason: to empty an overcrowded and disorganised prison system. There should be a much more strategic approach to such issues, as the Minister recognises only too well.

Jenny Willott (Cardiff, Central) (LD): I have a few comments to make and a couple of questions to ask the Minister, to which I hope he will respond when he sums up the debate. I shall not be opposing the orders today on behalf of the Liberal Democrats—we did not oppose them in the upper House. The hon. and learned Member for Harborough mentioned my first point, which is on prison overcrowding. My second point is on access to legal aid and legal advice specifically in relation to the orders.

As has been said, clearly, the orders are an attempt to reduce the overcrowding in prisons. New figures out today show yet again a new high in the UK prison population. As we have already discussed, 14 per cent. of that population are foreign nationals. Although around 1,000 were removed last year under the scheme, it was quite a small proportion of the 82,000 prisoners. The difference in numbers that the measures will make is likely to be small. Lord Hunt of Kings Heath stated in the other place that the Government expect the measures to save only around 235 prison places, which is a remarkably small number. Will the Minister confirm that that is the Government’s estimate or whether they feel that the measures will make a bigger difference? That number seems paltry.

I believe that the prison population needs to come down, but the measures seem to be a small sticking plaster for such a large problem. If the Government are keen to drive down the prison population, other ways would be far more successful and effective such as, for example, tackling the problem of mental health in prisons. Some 70 per cent. of male inmates and 72 per cent. of female inmates have two or more mental health disorders; and 20 per cent. have four or more; yet only 1 per cent. of the prison population are moved into secure mental health units every year, which seems to be a complete waste of resources. Tackling that problem would be a much more effective way of bringing the prison population down.

What reductions in the prison population does the Department expect to see as a result of the changes, and when will the measures have an impact on the numbers? Will the Minister also address my personal concern that it will not be long before any benefit of the increased number of prisoners who are eligible under the scheme is completely overtaken by the natural growth of the prison population, given its current rate?

On access to legal advice, as the Minister will know, prisoners who are eligible for removal under the scheme are allowed to appeal their removal or deportation but, in the process, they must sacrifice their right to early release. The Border and Immigration Agency noted that as of November 2007, some 1,500 prisoners whose early release deadline had expired were still in prison. Presumably, many of them had chosen to appeal and had therefore lost the right to early release. Foreign nationals have a stark choice between appealing and losing their right to early release, and going home to serve the rest of their sentence in their country of origin, or accepting a decision and being removed. Given that that is a stark choice, I would be grateful if the Minster could assure the Committee that the increased number of prisoners who will be eligible for the scheme will have full and timely access to decent legal advice, rather than having to make the judgment by themselves.

I would also be grateful if the Minister could indicate the average time it takes for a foreign prisoner’s appeal to be heard so that we have an idea of how many of the 1,500 prisoners whose early release deadline has expired are in prison because they are waiting for their appeals to be heard. Having made those points, I will support the orders, but I should be grateful if the Minister would comment on those points.

Mr. Peter Kilfoyle (Liverpool, Walton) (Lab): I rise briefly to remind the Minister that he has great support for these initiatives from the Government side of the Committee. He will recall the situation when the Labour Government came into office and how the then Home Secretary was waging war on the head of the Prison Service. Not only was there a failure to apprehend people such as Azil Nadir, a well-known Tory party donor, but he seemed to enjoy life—and still does—somewhere in northern Cyprus, despite the fact that the Conservative party refused to restore the money to the administrators of Poly Peck. I mention that simply because I am perplexed by the comment made by the hon. and learned Member for Harborough. He appeared to say that the Government are somehow at fault for having increased the number of successful convictions of overseas criminals in this country by 152 per cent. I would have thought that that was something to be applauded.

Mr. Garnier: I am grateful to the hon. Gentleman, of whom I am a great admirer, for allowing me to intervene, but I think that he missed my point—perhaps it is my fault for not making it clearly enough for him. The point that we all need to consider is not that the police and the courts have apprehended those criminals, but that the Government appear to have done nothing about the number rising so high as a proportion. The only thing that they have done is re-role a number of prisons that are required for British nationals who have committed crimes, so we are now in the parlous state where the prisons are dreadfully overcrowded.

Mr. Kilfoyle: I am afraid that I take a very different view from that of the hon. and learned Gentleman, because I see the Government as being the victims of their own success in making the provisions available for the courts so that the police can go out and apprehend those people and then get a successful conviction. My right hon. Friend the Minister ought to be esteemed, along with his colleagues, past and present, for the efforts that are being made.

Mr. Douglas Carswell (Harwich) (Con): I welcome any measure that will remove foreign criminals, particularly any measure that will remove them earlier, but I am not sure that these measures will do so. Rather than an early removals scheme, is not it in fact an early release scheme? For this scheme to work, measures need to be in place to ensure that people who are removed do not simply return. If people are removed from this country, what steps are in place to ensure that they will not simply come back? The Minister claims that the Home Office warnings index and UK border controls will ensure that those removed do not return, but unfortunately that ignores the fact that the UK does not have effective border controls. It would be a case of easy go, easy come back in.

The Government are simply not in a position to give assurances that those removed to foreign jurisdictions would not then be at liberty to try to come back in, as there are few effective border controls. How many serious criminals who have been removed under the scheme have re-entered the UK? I suggest that the Minister simply does not know and that this is more a question of deport and hope. The real motive for the orders is not to get tough on criminals or deport more of them; it is to make space in UK jails. The Government have not built enough prisons, there are not enough places in UK jails, and the orders are a cynical attempt to create more space.

Peter Bottomley (Worthing, West) (Con): Will the Minister tell us in which order events take place? I am working on the presumption that prisoners do not apply for early removal, but that it is the result of administrative action in the Prison Service: a foreign prisoner becomes eligible for consideration, and that consideration takes place whether or not the prisoner asks for it. I also presume that the prisoner is not asked for permission, but that contact is made with their country of origin to ask, “Will you issue travel documents so that this person will be accepted if we put them on a plane or train and send them back?”

Is contact with the country of origin the first thing that happens, or is the prisoner told that they will be considered for early removal before that contact is made? What would happen to someone who left their country of origin at the age of six months before spending the next 20 years in a different country? What counts as the country of origin: the place where they were born, the place where they first held nationality or the place where they currently hold nationality? If the Minister does not find it convenient to answer those questions at the moment, I should be grateful to have a letter stating what happens.

My last point deals with paragraph 7.5 of both sets of the helpful explanatory notes, which refers to prisoners who

Presumably that refers to the community here or in their country of origin. There would be no point putting it in the explanatory memorandum if there were no possibility that a person released from jail and sent abroad would be free in this country, or is there some gap to which the paragraph is relevant?

Mr. Hanson: I thank hon. Members for their contributions. I shall deal with them in turn. I am grateful to the hon. and learned Member for Harborough and the hon. Member for Cardiff, Central for their support of the order. I am also grateful to my hon. Friends not only for supporting me but for remaining in the Committee when the Opposition indicated that they could leave. It is a great pleasure, and it shows the power of my hon. Friend the Member for Mitcham and Morden in her capacity as a Whip.

The hon. and learned Member for Harborough mentioned a figure of 14 per cent. for the proportion of foreign nationals in the prison population of England and Wales. Although that figure is high and I am not content with it, it is significantly lower than in many other European nations. There are a considerable number of countries with much higher proportions of foreign national prisoners than us, and I am happy to inform him of the detailed figures.

Mr. Garnier: It is very kind of the Minister to make that offer. His noble Friend the Lord Hunt of Kings Heath provided the figures in the other place last Thursday. I am not entirely sure that they are particularly relevant or helpful; what we are concerned about is the 14 per cent. of our prison population. Other countries may well have higher or lower proportions of foreign nationals in their prison populations, but what is important is whether we do the right thing in this country.

Mr. Hanson: I shall come to that in a moment, but it is important that we place the point on record, because one of the criticisms that we face from the hon. and learned Gentleman is that there has been a rise in the number of foreign nationals in the prisons of England and Wales. The 14 per cent. figure is accurate—there were 11,211 foreign nationals in prison in September—but it compares with 43 per cent. in Austria, 42 per cent. in Belgium, 23 per cent. in Denmark, 36 per cent. in Estonia, 21 per cent. in France, 28 per cent. in Germany, 42 per cent. in Greece, 20 per cent. in Portugal, 33 per cent. in Spain, 27 per cent in Sweden and 69 per cent in Switzerland, so although it is a problem—

Mr. Garnier: So what?

Mr. Hanson: I am just putting this in context. Although there is a problem, it is a problem shared by other countries in the European Community. As my hon. Friend the Member for Liverpool, Walton pointed out, that is entirely down to the fact that more offenders than ever are being brought to justice, that people are being given longer sentences more than ever, and that there is a greater detection rate of offences than in the past. Those are signs of success in the difficult areas that we face.

Peter Bottomley: All those assertions might be true, but this is not the right place to test the proof of them. It is clear from the Minister’s list that other countries would be able to benefit by taking the kind of action that the Government are proposing under the orders.

Mr. Hanson: I accept that. As I have already said, I am grateful for the support of Committee members from all parties for the orders.

The hon. and learned Member for Harborough asked me whether the orders have been introduced for the purpose of doing the right thing, or simply for prison expediency. It is right to ensure that individuals serve their sentence in their home countries, or are deported from this country at the earliest opportunity.

The hon. and learned Gentleman will know, because we debate such matters regularly, that the United Kingdom has prisoner transfer agreements with some 100 countries. He will also know that we are in the process of negotiating further prisoner transfer agreements with some of the countries from which there are big foreign national prisoner populations, such as Vietnam, Jamaica and Nigeria. He will also know that there are countries with which there are difficulties in securing a prisoner transfer agreement, such as Iran and South Africa. However, he will also know that we are doing all that we can, and increasing our efforts, to secure the early removal of prisoners by either prisoner transfer agreement, or the early removal scheme that we are discussing.

The hon. and learned Gentleman asked whether there were further plans to re-role prisons in England and Wales. I am not aware of any further plans. We never rule anything out, but there are no current plans to re-role further prisons for foreign national prisoners.

The hon. and learned Gentleman mentioned the number of foreign national time-served prisoners in prison, which was 389 as of 25 March, and the number of European-area prisoners in England and Wales, which was 2,503 as of the last day of 2007. I am grateful for his support and I hope that he will continue to take an interest in such matters because I believe that the Government have a good story to tell about them. Work with the BIA estate has resulted in a massive increase in the deportation of prisoners over the past few years. Indeed, in 2007, the BIA removed over 80 per cent. more foreign national prisoners than in 2006. That was a major achievement in difficult times and under difficult circumstances.

The hon. Member for Cardiff, Central raised some important points. First, she mentioned the question of prison building programmes. The policy that we are discussing will save approximately 235 additional prison places, once fully implemented, but it is not being introduced for only that purpose. We are doing this to try to ensure that foreign national prisoners serve their sentence abroad as part of the foreign national transfer programme, or are released under the scheme to return to their country. It is also being done, to refer to what the hon. Member for Harwich said, to put in place secure defences to ensure that those individuals do not return to the United Kingdom.

I said that a number of significant steps are in place, through the Home Office and the Border and Immigration Agency, to ensure that individuals are tested prior to deportation so that if they return to the United Kingdom by legitimate means at airports, ports or other points of entry, they will be picked up by the appropriate machinery and returned to prison. The deterrent effect of that means that individuals do not return to the United Kingdom.

There have been two instances of individuals being deported to the Irish Republic and returning to the United Kingdom, although they were picked up and returned to prison after that information came to light. However, those instances related specifically to the fluidity of the border between Northern Ireland and Ireland. I am not aware of any other instances to date out of the 3,000-odd cases in which individuals have been returned.

The hon. Member for Cardiff, Central suggested that this was a prison population-saving measure. She referred to alternative options involving mental health, prison building, and community sentences. We are urgently making progress on those matters. My noble Friend Lord Bradley is examining mental health. We have a major prison building programme of £1.3 billion over the next three years and £2.5 billion over the next six years. Only six weeks ago, I opened HMP Kennet near Liverpool, which is almost in the constituency of my hon. Friend for Liverpool, Walton. That prison was commissioned last year by my right hon. Friend the Member for Airdrie and Shotts, when he was Home Secretary. We have a major prison building programme and there is major investment in mental health. There are other measures to reduce the prison population. The purpose of the orders is to deal with foreign national prisoners, but they will also have an impact on the prison population.

The hon. Member for Cardiff, Central mentioned legal representation. All prisoners will receive whatever legal representation they are due, as under normal practice. The order will not change any representation or legal requirements that those individuals have had to date. I do not have to hand the figures on the average time for appeals to be heard, but I will write to her on that point, if she will allow me.

Jenny Willott: I would also be grateful if the Minister would indicate how many of the 1,500 prisoners who are still in prison after their early release date are waiting for appeals to be heard, and how many are there because they decided to appeal and therefore lost their right to early removal.

Mr. Hanson: I will certainly look at that. Most time-served foreign national prisoners in jails in England and Wales are there because we are waiting for space in the BIA estate, which is run by the Home Office, to become available for their deportation to their country of origin. To answer the point made by the hon. Member for Southend—

Peter Bottomley: Worthing.

Mr. Hanson: Apologies. The hon. Member for Worthing, West has changed constituencies. I almost called him the hon. Member for Eltham, which shows how long we have been here. That is one of the problems of longevity.

Our job in the Prison Service and in the Ministry of Justice is to ensure that the moment an individual within the foreign national estate has served their sentence, and is time-served, we remove them to the BIA estate, which prepares them for deportation. As of 25 March 2008, we had—as I mentioned in response to the hon. and learned Member for Harborough—389 time-served foreign national prisoners in our estate, whom I am anxious to remove. We are in discussion with the BIA about doing that as soon as possible. The Prime Minister has been extremely focused on removing people from the BIA estate to countries of origin. We have successfully met the target that he set of removing 4,000 people by December 2007.

The hon. Member for Worthing, West asked whether a prisoner gets opted in to the early removal scheme. He also asked about the order of precedence of that administrative scheme regarding receiving countries. Prisoners who are liable for deportation or administrative removal from the UK cannot opt out of the scheme—it is compulsory. They are opted in before contact with the receiving jurisdiction is made. That has the advantage that prisoners know that they are potentially to be deported at a set point in their sentence, so they can begin to make plans for that with any family and contacts that they have back home. Those serving longer sentences will know the deportation date with certainty, and we have an opportunity to progress that deportation as early as practicable.

The hon. Gentleman also mentioned paragraph 7.5 of the explanatory notes, which refer to risk to the community. He asked whether that community is here in the United Kingdom or abroad. Case law has established that the Secretary of State must consider the risk to the public and that extends to the public in both the United Kingdom and the overseas jurisdiction. When a decision is made, that will be taken into account.

I believe that the scheme is valuable and I think that the Committee agrees. It will increase the removal of foreign national prisoners. As my hon. Friend the Member for Liverpool, Walton said, I believe that it is testament to our success in catching more criminals. I am sure that the orders will be welcomed by not only Labour Members, but Opposition Members. I commend them to the Committee.

Question put and agreed to.

Resolved,

Resolved,

Committee rose at ten minutes past Five o’clock.