rose to move, That the draft order laid before the House on 12 March be approved.

The noble Lord said: My Lords, I also wish to speak to the Early Removal of Short-Term and Long-Term Prisoners (Amendment of Requisite Period) Order 2008. My purpose today is to discuss amendments to the early removal scheme for determinate sentence prisoners who are liable to deportation or administrative removal from the United Kingdom. These orders set out the Government’s proposals to extend the early removal scheme to enable prisoners to be removed up to a maximum of 270 days early rather than the current 135. This is the first time these specific order-making powers have been used.

The early removal scheme in respect of foreign national prisoners has been successfully in operation since 2004 and 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 are able to 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.

Prisoners serving a life or indeterminate sentence are not eligible to be considered for removal under the scheme. Determinate sentence prisoners serving a sentence of four years and over under the Criminal Justice Act 1991 for a sexual or violent offence are removed under the scheme only if the Parole Board considers that they would present an acceptable risk to the community. Details of prisoners removed under the scheme are placed on the Home Office’s warnings index. Should they seek to return to the UK during their sentence they can be detected by the border control officer on arrival at the UK border, and returned to prison custody until the point at which they would have been released had they not otherwise been removed.

Based on the successful experience of the last three and a half years, and in particular our increasing experience of and success in securing travel documents from overseas countries and making other arrangements with them that enable us to remove prisoners, we believe the scheme can make an even greater contribution to removing criminals from our shores.

As of December 2007, there were 11,310 foreign national prisoners in the prison system, representing 14 per cent of the total prison population. Foreign national prisoners represent a significant proportion of the prison population, although it is low in comparison to many other European countries. The early removal scheme has a positive impact on the prison population. Moreover, we have made it clear that our objective is that foreign national prisoners should face deportation when they meet the relevant criteria and that deportation should happen as early as possible in their sentence. These proposals are entirely consistent with overall government policy.

The Criminal Justice Act 1991 and the Criminal Justice Act 2003 empower the Secretary of State to remove foreign national prisoners from prison early for the purpose of removing them from the United Kingdom. This is formally known as the early removal scheme. To qualify for the scheme, a prisoner must be liable to deportation or administrative removal, in accordance with immigration legislation. The statutory instruments amend the relevant provisions in both Acts to expand the early removal scheme to enable foreign national prisoners liable to deportation or removal from the UK to be removed from prison, and hence from the UK, at an earlier point in their sentence than is currently the case. The instruments double the maximum number of days from which a prisoner may be removed from prison under the scheme from 135 days before the halfway point of the sentence to 270 days before the halfway point of the sentence.

The ERS provisions under the Criminal Justice Act 1991 apply to those prisoners who are liable to removal and are serving a sentence of less than 12 months or a determinate sentence in respect of an offence committed before 4 April 2005. The statutory instrument amends Section 46A of the Criminal Justice Act 1991, which enables the Secretary of State to remove from prison early short-term and long-term foreign national prisoners who are liable to deportation or administrative removal and are subject to the release provisions of the 1991 Act. Section 46A(6) provides the Secretary of State with the power to amend the definition of “requisite period”, being the period prisoners must serve before becoming eligible for removal from prison under the ERS. There is a tapering mechanism, which means that the requisite period that must be served will be dependent on the length of the sentence.

The order provides that a prisoner liable to removal and serving less than three years must serve one-quarter of the term before they can be removed from prison. The effect is that prisoners serving less than three months will now be eligible for the ERS, whereas under the current provisions they are not so eligible. Those prisoners serving more than three months but less than four months will be required to serve a quarter of the term. Currently, they must serve 30 days. This means that they will be eligible for removal earlier then they are currently. Prisoners serving 18 months or more, but less than three years, will be required to serve one-quarter of the term. Currently, they can be removed up to 135 days before the halfway point of their sentence. This means that they will be eligible for removal earlier than they are currently. Prisoners serving three years or more will be able to benefit by up to the maximum period of 270 days. Prisoners serving four months or more, but less than 18 months, will not be affected by this draft order.

The Criminal Justice Act 2003 applies to 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 of that Act contains the relevant early removal scheme provisions. The provisions are very similar to those of the Criminal Justice Act 1991. The draft Early Removal of Fixed-Term Prisoners (Amendment of Eligibility Period) Order amends the Criminal Justice Act 2003 to expand the ERS to enable foreign national prisoners to be removed from prison up to a maximum of 270 days before the end of the custodial period. Again, this is the first time that this order-making power has been used.

The order replaces the current time limit of 135 days with a new time limit of 270 days. That means that the Secretary of State will be empowered to remove from prison a person who is liable to removal up to 270 days before the halfway point of the sentence. Prisoners serving three years or more will be eligible to benefit by the maximum period of 270 days.

I hope that it is clear to the House that the orders build on the success of the original scheme. They are admirable in that effect, and I am sure that they will commend themselves to the House. I beg to move.

Moved, That the draft order laid before the House on 12 March be approved. 14th Report from the Joint Committee on Statutory Instruments.—(Lord Hunt of Kings Heath.)

My Lords, first, I should make it clear that we will not oppose the orders. Secondly, I offer my congratulations to the Minister on his gall in coming to the House to say that the Government are making these changes as a result of their successful pilot schemes, and all that stuff. He knows and I know that the Government are trying to make certain adjustments to cope with the fact that the prisons are bursting at the seams. There are far too many people in them and they want to get some out to get the numbers down. I accept, as the Minister put it, that the proposal is entirely consistent with government policy. I accept that no doubt a number of pilot schemes have been looking at this issue, but the Minister knows perfectly well that the reason for this measure is, as I said, to get the figures down. That is a perfectly admirable reason because the prisons are bursting at the seams.

In their Explanatory Memorandums on the orders, the Government give the game away. The two memorandums seem to be identical, but I shall refer to that on the Early Removal of Short-term and Long-term Prisoners (Amendment of Requisite Period) Order 2008. At paragraph 7.9, they explain that there will be amendments to deal with this matter in:

“Clause 33 of the current Criminal Justice and Immigration Bill”.

I forgot to look at my copy of that Bill to see whether it is still Clause 33 because the Government seem to amend it so often. It is probably a different clause now, but let us assume that it is still Clause 33 to which amendments will be made. That Bill will be enacted early in May—in barely five or six weeks. But, so desperate are the Government to move forward—we all know why; the prisons are bursting at the seams—they have to move the orders and bring them into effect now. I seem to remember a call from the Government Whips’ Office asking, “Can you take these orders some time before Easter?”. I gather that this is “before Easter”, although Easter has already happened as far as I am concerned. We are dealing with the orders now, despite the fact that the Criminal Justice and Immigration Bill will be enacted in six weeks, and Clause 33 will be Section 33 on the statute book.

Paragraph 7.10 of the Explanatory Memorandum states:

“The Secretary of State is therefore amending primary legislation by an affirmative instrument whilst at the same time taking a Bill through Parliament which amends the same provisions, albeit in different ways. The rationale for using the order-making power to affect the changes to the ERS set out above is because the statutory instruments can be made and come into force well before the Criminal Justice and Immigration Bill receives Royal Assent”—

in six weeks from now.

As I said, we do not intend to oppose the orders. It would be comic if it were not so tragic that the Government have to act like this. They are making policy almost on the hoof purely so that they can deal with matters rather more speedily than they could do in the Bill already before them. I feel sorry for the Minister having to come before the House on a day like this to make such a speech.

My Lords, the people for whom I feel sorry are the prison governors who have to read and digest the complicated provisions of this early-release scheme, which are detailed in a 70-page document, Early Removal Scheme for Foreign Nationals, which is now being amended by these two orders. I have no complaint to make about the orders themselves, and I think that my noble kinsman has been a little hard on the Government. We are always complaining that they have done nothing about the bursting prisons, and now they are doing something. But I suppose he is entitled to have a little bit of fun. At the end of the day, it is a good thing that these orders are being made now and that they come along as early as possible.

We are looking at an uncontroversial scheme, which has, so far, allowed fixed-term prisoners to be removed to their countries of origin 135 days before the half-way point of their sentence, with tapering for short-term prisoners at between three and 18 months. As the Minister has explained, under these orders a foreign national can be removed from prison 270 days before the half-way mark, with those sentenced to less than three years having to serve a quarter of their nominal sentence. The lower limit of three months originally applied to the ERS is removed. That is an improvement because those people were not formerly eligible for any release.

Obviously, the scheme applies only to those who are capable of being removed or deported to their country of origin. The Explanatory Memoranda do not say to how many of the 11,310 foreign nationals in our prisons at the time of writing, who the noble Lord mentioned, this scheme will apply. We hope that the noble Lord will tell us what increase there will be in the number of prisoners affected, based on the current number of prisoners, as a result of the extension from 135 to 270 days. The chief executive of the BIA wrote to the chairman of the Home Affairs Select Committee in another place on 20 November 2007. He said that 1,500 foreign national prisoners whose sentences had expired were awaiting deportation. It would be useful if that figure were updated. In spite of the claim that the experience of the past three and a half years has been successful, the 3,000 removed under the early release scheme since it began in June 2004 is presumably some way short of the number eligible for deportation or removal. It would be useful to have some assessment of what proportion of the total that would represent. What are the obstacles to deportation of the 1,500 who are still detained?

In her evidence to the Select Committee on 15 January, Ms Homer, the chief executive of the BIA, said that it would automatically consider deportation for anyone given a custodial sentence unless there was an appeal. What proportion of foreign national prisoners in custody who would otherwise have been subject to ERS are excluded from the procedure because their appeals have not yet been concluded? Does this account for some of the 1,500 in administrative detention, or are they all from the countries where difficulties arise, such as the four particularly mentioned by Ms Homer: Jamaica, Nigeria, China and Vietnam? Do those difficulties arise mainly from the expiry, loss or destruction of travel or identity documents by the persons concerned? Presumably the prisoners who qualify for ERS are told clearly that if they appeal either against sentence or deportation, it can mean that they will have to remain in custody for part or even the whole of the 270 days’ freedom back home they would otherwise have enjoyed?

If that is the choice facing those prisoners—to accept the ERS or resist it and lose some of the time for which they would otherwise have been freed—can the noble Lord assure me that they will have available to them the best legal advice so that they can make the decision on the best possible grounds?

My Lords, I welcome the general support that both noble Lords have given to the order—

I am grateful, my Lords; I was not certain when I would be allowed to come in.

I am equally surprised at the speed at which this is being done, not least because of the timing of the Criminal Justice and Immigration Bill. Nevertheless it must have some benefits in that at least those who remain in the prisons will have slightly less crowding to cope with. From that viewpoint I suppose that I, too, must welcome what is happening. Apart from endorsing the point about legal aid—it is crucial that they have access to legal aid—I wonder how many of the people we are talking about are women, because a considerable proportion of the prison population are foreigners. I hope that it is not too many, but it would be useful to have those figures.

My Lords, I thank both noble Lords and the noble Baroness, Lady Howe, for their general support for the proposals in the statutory instruments. The noble Lord, Lord Henley, was rather feisty in his remarks. I say at once that the provisions will have a positive impact on prison population. I do not have all the figures that noble Lords have requested today but I will give the ones that I have and see if I can obtain any more. If so, I will write to noble Lords. However, the provisions will have a positive impact on prison population. I do not think that I ought to apologise for that. As for the principle of foreign national prisoners, where it is considered safe and risk assessments take place, it is appropriate to do this. The scheme is worthy in its own right.

We have already made it clear as a general principle that foreign national prisoners should face deportation where they meet the relevant criteria. We therefore believe that the proposals are consistent with government policy. There is no question but that the prison-population situation is serious. As the noble Lord will know, however, we have published the Carter proposals and we have a programme to make an impact on the numbers of prisoners and to increase the provision of places over the next few years. These orders will make a positive impact as well.

The statistics on the number of foreign national prisoners removed early under the scheme are as follows. In calendar year 2007, 1,054 persons were removed. As for the impact on the prison population, we project a saving of approximately 235 places. I should say that this is not an exact science but based on the places that were saved from the original scheme. Nevertheless that is a significant number in terms of our current prison population. I say to the noble Lord, Lord Avebury, that according to my information the number of time-served foreign national prisoners in prison stood at 389 as at 25 March. That is pretty up-to-date.

Obviously, one could talk more generally about some of the challenges in documentation where appeals are being heard. One of the questions that has always arisen about the operation of the scheme is how early advance notice from the prison authorities to the BIA is and when documentation can start to be prepared. There has been case law that means that the process cannot be started too early because an actual decision has to be made on the basis of the facts at the time. However, there is no doubt that there is improved collaboration between the Prison Service and the BIA. We are seeing these improvements coming through.

In Committee on the Criminal Justice and Immigration Bill we debated the protocol between the Prison Service and the BIA. While there are still major challenges in this area, there are significant signs of improvement. I agree with the noble Lord, Lord Avebury, that, in terms of the guidance given to governors, they do an extraordinary job under extreme pressure. Anyone who has visited prisons recently and has seen the population pressures they are under can only admire their work. I have no doubt whatever that the quality of the governors and people working in prisons has improved immeasurably over the past few years. We owe them a great debt.

I am afraid that I do not have the gender differential figures—in other words, the number of women—for the noble Baroness, Lady Howe. I will find out, if I can, and let her know. All are entitled to legal representation.

On how many it can apply to, it is difficult to give a fixed figure. That is also why I cannot give an absolute estimate of the reduction in prison population that will take place as a result. The point is that any foreign national prisoner liable for deportation or removal is eligible for the scheme. However, there is of course a great difference between the number eligible and the number it would affect.

My Lords, I do not ask the Minister to give these figures now, because I am sure that he does not have them to hand. Since Ms Homer mentioned before the Select Committee the particular difficulties arising in respect of four countries which apparently do not accept their nationals or the documentation provided, it would be useful to know how many of the prisoners that would otherwise be eligible for the ERS are stopped from taking advantage of it because they belong to one of those countries.

My Lords, I accept that. I have figures for each of the countries represented by the prison population. Rather than read them out, perhaps I may write to the noble Lord. I cannot tell him how many offenders with outstanding appeals are excluded from the scheme. We are not sure whether that information can be obtained, but I will certainly do everything I can to see whether that is possible.

The changes being introduced in the Criminal Justice and Immigration Bill, which we are all thoroughly enjoying debating at the moment and look forward to gathering for again next Wednesday, will make the scheme easier to administer and certainly bring more prisoners into scope. Clause 33 amends the position for prisoners entitled to be released under the provisions of the Criminal Justice Act 1991, whereas Clause 34 amends the position for the 2003 Act prisoners. Broadly speaking, the changes in the Bill do two things: they remove the current statutory exemptions to the ERS, and extend ERS to those prisoners who are not liable to removal but who demonstrate a settled intention of residing abroad. Clause 33 also corrects a potential anomaly in the operation of the ERS in respect of prisoners sentenced under the different regimes of the Criminal Justice Acts 1991 and 2003. The provisions in the Bill are consistent and in parallel with the provisions that we are bringing forward in the SI today.

I thank noble Lords for the general support that they have given to the orders, if not to some of the other interesting matters around this issue, and commend the orders to the House.

On Question, Motion agreed to.