Embattled Clarke accused over 'knee-jerk' response

Charles Clarke triggered a human rights storm yesterday when he vowed to repatriate all foreign offenders - even those convicted of minor offences - in the biggest shake-up of deportation rules for decades.

The Home Secretary faced charges of resorting to knee-jerk action on the eve of the local council elections to distract attention from the series of damaging headlines over the prison-release fiasco. With his department struggling to get a grip on the crisis, he was forced to admit that 38 dangerous foreign criminals have still not been tracked down by police.

Mr Clarke, making an urgent statement to MPs, announced all overseas nationals who are in jail would face deportation at the end of their sentence. At the moment, they are only removed if they have received a sentence of a year or more. But now all offenders who have been convicted of "imprisonable" crimes - including those who have received suspended sentences - face expulsion.

The proposals exacerbated fears over the Government's approach to civil liberties. Critics accuse the Government of curtailing freedom with harsh anti-terror legislation, curbs on protests and plans for the introduction of identity cards.

Critics protested that Mr Clarke's plans could put foreigners convicted of such offences as fare-dodging, shoplifting or even poaching at risk of removal from the country.

Yesterday's measures, which ministers want to implement by the end of the year, leaves the Government vulnerable to challenges under human rights legislation.

The European Convention on Human Rights gives absolute protection against suffering torture or human rights and a partial guarantee of the right to a family or private life. A foreign national facing deportation for a relatively minor offence could mount a credible challenge under the latter provision.

Downing Street, in more bullish mood than the Home Office, signalled it was prepared for a succession of court battles over the deportation of foreign prisoners. Tony Blair's spokesman said: "It may prove controversial in Parliament and parts of the media. But we believe we have to end a disconnect between a system that's developed over decades and public expectations."

The proposals triggered widespread condemnation from civil liberties groups across the whole country.

Enver Solomon, the deputy director of the Centre for Crime and Justice Studies think-tank, said: "If the rights of the most vulnerable and those deemed undesirable continue to be eroded by a government that resorts to disproportionate responses, the commitment to upholding fundamental human and political rights is merely a charade."

Rhian Beynon, the spokeswoman for the Joint Council for the Welfare of Immigrants, said: "Some of these people may have leave to remain in this country. They are living in this country and are entitled to equal treatment to other people living here."

In rowdy Commons scenes yesterday, Mr Clarke said that of the 79 most serious offenders identified last week, including murderers, rapists and paedophiles, 32 had been tracked down and officials had ruled out deporting another nine. The Home Office confirmed that the remaining 38 were still at large.

It refused to disclose how many more offenders have gone on to commit more crimes, on top of the five confirmed last week.

In the latest damaging development for the Government, it was revealed that an Iraqi Kurd who was wanted for questioning in connection with the attempted murder of a man and a sex attack on a 15-year-old girl was recommended for deportation after a previous court case. The Home Office said it could not comment on whether 25-year-old Caliph Ali Asmar was on the list of 1,023 foreign criminals.

David Davis, the shadow Home Secretary, said Mr Clarke's proposals amounted to "bolting the prison door after the prisoners have fled".

Nick Clegg, the Liberal Democrat home affairs spokesman, said: "The present crisis has nothing to do with the content of legislation and everything to do with a failure to enforce rules that already exist. The Home Secretary has extensive powers to deport foreign prisoners - the scandal is he hasn't used them."

Shami Chakrabarti, the director of the human rights group Liberty, said: "The current Home Office crisis is a lack of administration, not legislation. Knee-jerk legislative responses to public safety concerns are cheap and fake compared to the serious and unglamorous business of effective administration.

Juliet Lyon, director of the Prison Reform Trust, said: "Knee-jerk reaction is no way to shape neglected policy and practice. The Home Secretary needs to keep his commitment to thorough-going consultation before introducing yet more statutory measures, or amending primary legislation, which may turn out to be less important than ensuring that we have a fair, effective and humane penal system."

What the Home Secretary is planning, and why

Q: How many foreign prisoners are there?

At the end of February, a record 10,625 overseas nationals were in jail in England and Wales, more than one in eight of the prison population. Their numbers have risen at seven times the rate for British citizens over the past five years, piling extra strain on a system already struggling to cope. There are more than 160 different nationalities behind bars, with Jamaicans representing the largest group. There are also large numbers from Nigeria, Turkey, Somalia, India, Pakistan and Ireland.

Q: Can they be sent home during their sentence?

They can serve the balance of their sentence in their home country, providing they are returned to one of the more than 90 nations with which Britain has Prisoner Transfer Agreements. The latest has just been signed with India and others are awaiting ratification. The prisoner also has to agree to be sent home.

Q: What about at the end of their sentence?

Under the current system - which failed spectacularly in the case of 1,023 prisoners released over seven years without deportation hearings - many offenders should automatically be considered for deportation. They are people from outside the European Economic Area (EEA) serving sentences of 12 months or more; EEA nationals with a sentence of two years or more; cases where an offender has been convicted of three lesser convictions in a five-year period; and in all cases where the judge recommended deportation.

Q: How does Charles Clarke want to change that?

There would be an automatic assumption that all people convicted of an "imprisonable offence" would be deported when they have served their sentence. Downing Street has said it wants there to be "very few" exceptions to that rule. If they wanted to appeal against their removal, they would have to do so from outside Britain, save for those raising human rights or asylum issues.

Q: How practical is the announcement?

It is very challenging for the Government, as there are no deportation agreements with such countries as Jamaica, Nigeria and Iraq. All deportation attempts are made on a case-by-case basis, requiring intensive work by British officials. There are claims that in the case of EU nationals, the deportations would be meaningless as they have freedom of movement within the EU and could immediately return to Britain. That is denied by the Home Office.

Q: How is an "imprisonable offence" defined by the Government?

As well as applying to everyone behind bars, Mr Clarke has said "there is a strong case for extending these proposals to any individual who is convicted of an imprisonable offence, whether or not a sentence of imprisonment was actually given".

Q: And what happens next?

Detailed proposals will be published by the end of the month, followed by a consultation period likely to last another three months. It is not clear yet whether the moves would require legislation; if so, the Government would be expected to push it through later in the year.