It is a pleasure to follow the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright). I find myself in agreement with much of what he said, and he made his points very forcefully.
I rise to speak to amendments 32, 33 and 34 and new clause 4 in my name and amendments 4 and 5 in the name of my hon. Friend the Member for Glasgow North (Patrick Grady), and to support the amendments in the name of my hon. Friend the Member for Glasgow Central (Alison Thewliss). I also want to comment on clause 3 and clause 5 stand part and the amendments that have been put forward, particularly by the right hon. Member for Newark (Robert Jenrick), in my capacity as Chair of the Joint Committee on Human Rights.
I turn first to my amendments, which relate to the impact of this Bill in Scotland, and in which respect I am speaking in a personal capacity. My amendments and those of my hon. Friend the Member for Glasgow North deal with the extent of the Bill, its extension to Scotland and the date of its commencement in Scotland.
We both seek to prevent this Bill’s extending to Scotland and, in the event that we are not successful in doing that, my amendments seek to ensure that the Bill will not extend to Scotland without the legislative consent of the Scottish Parliament and that nothing in it will interfere with the supervisory jurisdiction of the Court of Session or its nobile officium. I will explain what that means later.
We must not forget that the regime this Bill seeks to impose, together with the Illegal Migration Act 2023, is imposed on asylum seekers across the United Kingdom, not just those who arrive in small boats on the Kent coast. The UK Government have not forgotten that, and that is why they want this Bill, with its far-reaching and unprecedented ouster clauses, to extend to Scotland. Accordingly, asylum seekers in Scotland looking to our courts for protection will find that the courts in Scotland have been emasculated in the same way as this Bill emasculates the courts of England and Wales.
As well as having their jurisdiction ousted on certain matters of fact, as was debated yesterday, the Scottish courts will find themselves unable to apply the Human Rights Act or to respect the United Kingdom’s obligations under the European convention on human rights and other international treaties. I believe that that constitutes a serious and unprecedented intrusion on the jurisdiction of the Scottish courts, and a serious interference with the separation of powers between legislature, Executive and judiciary. I do not think that this Parliament should be rubber-stamping the Bill at all, but particularly not in relation to Scotland.
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What the Bill seeks to do in emasculating the jurisdiction of the Scottish courts in relation to asylum seekers is anathema to the Scottish constitutional tradition. People in Scotland do not want it; they did not vote for it—in fact, nobody in the UK voted for this, because the policy was not in the Government’s manifesto. In contrast to England and Wales, no opinion polls carried out in Scotland support the Bill. As the great Scottish judge Lord President Cooper noted in the famous 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, it is the people who are sovereign. That makes a difference to our view of how constitutionalism works and on the separation of powers.
It is the essence of the Scottish constitutional tradition that Executive power should not be unchecked. That goes back in our history as far 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 his Holiness that if the King of Scotland should ever seek to make Scots subject to the King of England again, they would kick him out and seek another King to defend him. In Scotland, the sovereignty of the people is our guiding principle, not the sovereignty of the monarch. Neither our Parliament nor this Parliament is sovereign. It is the people who are sovereign.
Let me turn to the jurisdiction of the Scottish courts. This Parliament—this Union Parliament—exists because of the Treaty of Union. Scotland has always had a separate legal system. Article XIX of the Treaty of Union between Scotland and England protects that separate
legal system, including its inherent supervisory jurisdiction and the nobile officium of the Court of Session, which is a power that the Court of Session has to give remedies where otherwise there would be none. Since the modern advent of devolution by virtue of the Scotland Act 1998, the civil jurisdiction of the Scottish courts, including judicial review, has been a devolved matter and therefore properly one for Scotland’s Parliament, so I believe that the Bill is a grave intrusion of the civil jurisdiction of the Scottish courts, and that is the reason for my amendments.
The Scottish Government are considering a legislative consent motion. My amendment 34 would ensure that the Bill cannot come into force in Scotland without a legislative consent motion. My new clause 4 would ensure that, notwithstanding anything in the Bill—I like a nice notwithstanding clause, and I hope that Conservative Members who have been so excited about notwithstanding clauses will support my Scottish one—the supervisory jurisdiction and the nobile officium of the Court of Session would be preserved. In that way, I hope to ensure that asylum seekers in Scotland will still have the protection of the courts, in accordance with our constitutional tradition. Just to explain, the nobile officium of the Court of Session is a noble office or duty of Scotland’s highest court—a sort of extraordinary equitable jurisdiction by virtue of which the Court may, within limits, mitigate the strictness of the law and provide a legal remedy to people where otherwise none would exist.