Blog: Renting foreign prison places—the unanswered question

Is renting foreign prison places the answer to the unfolding capacity crisis in English and Welsh prisons? The widespread criticism the proposal was met with when it was first floated by the justice secretary Alex Chalk in his speech to Conservative conference (PRT’s own chief executive Pia Sinha described the proposals as “half-baked”) suggests that many in the justice sector remain to be convinced.

As the CEO of the Howard League Andrea Coomber points out in a recent blog, the policy poses many more questions than it answers. Such arrangements raise a number of thorny constitutional issues including what laws and policies apply to individuals held in foreign prisons under such agreements, how complaints from these prisoners will be handled, and what access and oversight scrutiny bodies such as the prisons inspectorate and prisons and probation ombudsman will have.

Louise Finer, a freelance researcher and a former head of the UK’s National Preventative Mechanism, warns of a worrying accountability gap and legal vacuum that could open up for prisoners held under any agreement leaving them without sufficient protection from potential ill-treatment.

Sending UK prisoners abroad also raises serious moral and ethical concerns. The charity Prisoners Abroad has spoken out against the proposals, highlighting the levels of “isolation and trauma” caused by “being imprisoned so far away from home and family, not understanding the language and being excluded from opportunities to work and participate in effective rehabilitation programmes”.

There are also a host of practical questions left unanswered by Alex Chalk’s speech and the concise Ministry of Justice press release that accompanied it. What are the costs of the scheme? Which prisoners will be selected? How will transportation work? How will safety and wellbeing concerns be accounted for? What about visits and family contact? What about resettlement arrangements?

Renting out prison places from foreign states is not new but it has only been tried in a small number of countries. In the past decade, both Norway and Belgium have rented prison places in the Netherlands in order to handle problems of overcrowding and limited capacity. The experiment in both countries had decidedly mixed results. Ultimately, neither Norway nor Belgium extended their contracts with the Netherlands. The Norwegian scheme ran for three years from 2015–2018 and the arrangements in Belgium for seven years from 2009–2016.

In the case of Belgium, the arrangement did not reduce overcrowding—which continued to get worse. In Norway, demand on limited prison capacity was managed though a ‘prison queue’ system where convicted individuals waited for a period of time before beginning their sentence. The length of time individuals were being forced to wait before starting their prison term had become an issue of political controversy. Therefore, the decision to rent out prison places in the Norwegian case was more to do with reducing the length of this queue than levels of overcrowding.

It is possible that the UK government may choose to follow the Norwegian and Belgium example by seeking to house primarily foreign national prisoners in a neighbouring state. However, as the experience of these countries demonstrates, the path to such an agreement is not straightforward. Both Norway and Belgium pushed to primarily house their foreign national prisoners in the Netherlands. In the case of Norway, the Netherlands pushed back and agreed to house a ‘representative’ Norwegian population. In the case of Belgium, the population held in the Netherlands was 40% foreign national.

But perhaps the biggest question left unanswered by Alex’s Chalk’s announcement is how it will solve the immediate crisis of capacity he is facing. Any such arrangement would not only require the agreement of a foreign state, as well as answers to all the legal, moral and practical questions thrown up. It would also require the introduction of legislation, which it was acknowledged in the Ministry of Justice’s press release would be introduced as soon as parliamentary time allows. Recent reports suggest that Ministry of Justice officials are in discussions with Estonia about a possible agreement. But it is likely to be many months, and more likely years, before any such arrangement becomes a reality.

And yet, the latest prison population figures suggest we are a matter of weeks away from the prison system running out of road. Statistics published on Friday 6 October shows that the prison population stands at 88,016, a rise of 223 in just one week. Meanwhile, useable operational capacity in the system stands at 88,667 — meaning there is just 651 places left. It is rumoured that the crisis in the male estate may be even more acute. Far from providing an answer, this latest proposal risks being no more than a sideshow to a crisis which is now very rapidly coming to a head.

The prime minister and his justice secretary and prisons minister are said to have discussed emergency measures at a crisis meeting in 10 Downing Street last month. However, ministers are understood to be implacably opposed to introducing an executive release scheme as the then Labour government was forced to do in 2007 in the face of a similar crisis. They have yet to come forward with a credible alternative.

Mark Day
Deputy Director