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Scotland could provide grounds to challenge Tories' vile Rwanda Bill

  • First published in : Visit Website
  • First published on: 19th Jan 2024

It's a measure of how low British politics has sunk that at Prime Minister's Questions this week, the Prime Minister taunted the leader of the Opposition for having written a book about European human rights law.

Apparently, it's so good that in the past the Ministry of Justice ordered a large number of copies. It is out of print now, but if there was an up-to-date edition, they would be well advised to buy a shipment to be read by the Prime Minister, his cabinet and his more nutty backbenchers.

The book was written after the Human Rights Act (HRA) was passed in 1998. The act incorporated the European Convention on Human Rights (ECHR) into the domestic legal systems of the United Kingdom meaning that human rights claims based on the rights enshrined in the ECHR could be brought in the domestic courts of the UK rather than the long and expensive process of going to Strasbourg. It has also achieved a culture shift in the approach taken by public authorities by embedding human rights law into their policy-making and how they deliver services.

Just like the Illegal Migration Act before it, the Rwanda Bill disapplies several key provisions of the HRA so public authorities including the courts in the UK will be encouraged to ignore human rights when dealing with asylum seekers, earmarked for deportation to Rwanda.

While the media and the commentariat have focused on the Tory psychodrama surrounding this bill, we are in danger of not marking properly just what an outrage this is from the point of view of those of us who believe in human rights, constitutionalism and the rule of law.

Human rights are meant to offer a fundamental level of protection for every person on the basis of their humanity alone. If those protections can simply be set aside when they cause problems for a policy goal, they lose the fundamental and universal quality that characterises them. This is particularly the case when they are disapplied in respect of a particular group of people, in this case migrants who have come to the UK without prior permission.

It's important to remember that when this bill becomes law together with the Illegal Migration Act, it will apply not just to people arriving in small boats on the south coast of England, but to asylum seekers anywhere in the UK. This means that asylum seekers living in Scotland could be selected for removal to Rwanda. When that happens, and when they look to the Scottish courts for protection, the Scottish courts will be prevented from applying the HRA to stop their deportation.

The Scottish courts will also be prevented from looking at the issue of whether Rwanda is in fact a safe country because Parliament will have deemed it to be so regardless of the situation on the ground. This constitutes a very serious intrusion on the jurisdiction of the Scottish courts and a serious interference with the separation of powers between legislature, executive and the courts. It is anathema to the Scottish constitutional tradition, and people in Scotland don't want it. You won't find any opinion polls carried out in Scotland which support the bill.

As the great Scottish judge Lord President Cooper noted, in the case of MacCormick v Lord Advocate in 1953: 'The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law.'

In Scotland, the people are sovereign. This makes a difference to our view of how constitutionalism works and our views on the separation of powers. It is of the essence of the Scottish constitutional tradition that executive power should not be unchecked. We can see this as far back as the Declaration of Arbroath in 1320 when Scottish nobles asserting the sovereignty of the people of Scotland in a letter to the Pope told him that if the king of Scotland should seek to make Scots subject to the king of England or indeed the English, they would drive him out and seek to find another king to defend them. In Scotland, the sovereignty of the people is our guiding principle, not the sovereignty of the monarch nor the sovereignty of the UK parliament.

When the Treaty of Union was entered into between Scotland and England, the jurisdiction of the Scottish courts was deemed sufficiently important to require particular protection. Under article 19, the authority and privileges of the Court of Session, including its inherent supervisory jurisdiction and its nobile officium, were protected against future interference. The nobile officium is a special power of the court where it can, within limits, offer mitigation if the law is too strict or provide a legal remedy where none exists.

Separately, since the modern advent of devolution and by virtue of the Scotland Act 1998, the civil jurisdiction of the Scottish courts, including judicial review, has been a devolved matter and therefore one properly for Scotland's parliament.

When I spoke in the debate in parliament on Wednesday, I put forward amendments designed to prevent the bill from extending to Scotland without the legislative consent of the Scottish Parliament. I also tabled a new clause for the bill, which would have ensured that, notwithstanding anything in the act, the supervisory jurisdiction and the nobile officium of the Court of Session would be preserved.

My aim was to ensure that asylum seekers in Scotland would still have the protection of the courts in accordance with our constitutional tradition but the arithmetic in the House of Commons meant that my amendments had no chance of being passed.

It goes without saying that I would rather this bill didn't apply anywhere in the United Kingdom, and of course I and my SNP colleagues voted against it. The much-heralded Tory rebellion did not materialise, and the bill has passed the House of Commons, but it is likely to be taken apart in the House of Lords. This is the benefit of having a second chamber, albeit I wish it was one that was elected and accountable to the public.

Even if it passes the House of Lords and becomes law, it is likely to face court action seeking a declaration of incompatibility with the HRA. Curiously, and to the annoyance of some Tory backbenchers, the bill leaves that possibility open. If such a declaration were to be made, the government and indeed parliament could ignore it, but it would not be without political consequences.

Some legal commentators have suggested that the bill is so offensive to the rule of law that it might face a constitutional challenge of the like we don't usually see in the United Kingdom because of the principle of the sovereignty of parliament.

It would be my advice to anyone seeking to go down that route that they should seek to do so in the Scottish courts, where, partly for some of the reasons I've outlined in this column, they might receive a more sympathetic reception than in the English courts albeit that ultimately the final decision will end up in the United Kingdom Supreme Court.

All this could be rendered academic if the Rwandan government loses patience with the whole saga. There was an indication this week that that might well happen when the Rwandan president told a journalist at Davos that there were limits to how long attempts to implement the deal with the UK could drag on and indicated he would be happy for the scheme to be scrapped. In an otherwise grim week, this afforded a moment of light relief.