Lords committee raises concerns about law which would allow earlier deportation of foreign prisoners
Wednesday 25 October 2023
In its 54th report of Session 2022-23, the cross-party House of Lords Secondary Legislation Scrutiny Committee considered the draft Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2023 and has raised concerns about the lack of information provided to support a policy intended to deal with the pressure on prison places.
The Draft Order would allow the Government to remove Foreign National Offenders (FNOs) from prison for deportation at an earlier stage in their sentence under the Early Removal Scheme (ERS). Once removed, the FNO is not subject to further imprisonment and is a free individual back in their home country – although cannot legally return to the UK. The ERS does not apply to terrorist offences. The Ministry of Justice (MoJ) states that the move will save money for the taxpayer and reduce pressure on the prison system.
The Committee’s report raises several concerns including a lack of sufficient background information to scrutinise or assess the impact of the legislation effectively. Essential elements of the policymaking process, such as an analysis of the types of case in which FNOs have hitherto been released and removed, estimating and communicating how many prisoners would be affected and the types of offence for which FNOs would be released and removed, or considering whether the measures might reduce the deterrent to commit crimes in the first place, have been omitted from the explanatory material.
In conclusion, the report draws the Order to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation. The Committee’s report also suggests that the House may wish to seek further information from the Minister and encourages the MoJ to review the effects of the changes as soon as possible and before considering any further changes to the parameters of the ERS.
Lord Thomas of Cwmgiedd, Member of the Secondary Legislation Scrutiny Committee said:
“We have emphasised in numerous reports the importance of providing a sufficiently detailed explanatory memorandum and supporting information to allow for effective parliamentary scrutiny of statutory instruments.
“In the case of this draft Order, while the MoJ told us the point of it is to free up prison capacity and save costs, we consider the omission of essential elements of the policymaking process regrettable.
“The policy could be seen as reducing the punishment of overseas criminals in order to ensure that UK citizens can continue to be sent to prison. In addition, the policy risks reducing the deterrents for overseas citizens to commit crime, potentially undermining confidence in the criminal justice system. That the Department has provided no analysis of these and other operational risks is disappointing and means that it is impossible to assess properly whether the change is appropriate. We have suggested that the House may wish to press the Minister on our areas of concern.
“Finally, the Department must ensure it conducts a post-implementation review as soon as possible and before making any further changes to the Early Release Scheme parameters.”
The Draft Order will be subject to the affirmative procedure, which means that both Houses of Parliament must approve it before it becomes law. The House of Lords will consider and debate the Order tomorrow, on Thursday 26 October around 12.30pm. The proceedings can be watched live or on demand at Parliament TV. Please see our website for more information about the procedure for debating affirmative statutory instruments.
