PRITI Patel’s “anti-refugee bill” could erode the devolution settlement and MSPs must withhold legislative consent, it is claimed.
The National can today reveal that a leading Scots law firm says measures in the controversial Nationality and Borders Bill may threaten Scottish protections for the victims of criminal trafficking gangs.
Christine O’Neill QC of Edinburgh experts Brodies found several clauses of the reforms proposed through the UK Government legislation would encroach on Scotland’s devolved powers. A detailed paper says this could clash with measures enacted here to protect trafficking victims and enable the age verification of children.
That, it says, should be subject to legislative consent motions. The charities JustRight Scotland (JRS) and the Scottish Refugee Council (SRC), who commissioned the advice, says the Scottish Government should encourage MSPs to refuse such consent.
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They describe the legislation as a “crushing weight on the rights to protection of vulnerable people” and risks further eroding the devolution settlement.
In a joint statement, they said: “Not only does much in the Bill encroach into areas of policy and law devolved to Scotland but its provisions, left unchallenged, will have a far-reaching impact on how Scotland treats and protects children, survivors of human trafficking and exploitation, refugees and vulnerable person within these groups such as women survivors of male violence, disabled people, and those with LGBTI+ identity. This Bill should concern us all.
“Further, some parts of the Bill if implemented in Scotland would challenge or change elements of the Scottish legal system – including how people access justice and secure their rights in Scottish courts.”
Brought forward by the Home Secretary, the Bill is now at the report stage in Westminster, in preparation for its third reading. A date for that is yet to be set.
Dubbed the “Anti-Refugee Bill” by critics, it is part of the government’s New Plan for Immigration and was introduced in July. If passed, it will create a two-tier system that welcomes some asylum seekers but criminalises others, depending on how they enter the UK. Anyone who does so via irregular means could face four years in jail. Anyone convicted of assisting them could face a life sentence. The Royal National Lifeboat Institution has said it will continue working to save lives after barristers raised the potential that Channel rescues may constitute “facilitating” arrivals under the provisions of the bill.
For Brodies, O’Neill found that there is “a fair to good argument” that some parts of the bill “fall within the legislative competence of the Scottish Parliament” and “we would expect the Scottish Ministers and Crown Office to be concerned” about some of these, including the UK Parliament passing provisions in relation to people who claim to have been trafficked.
Holyrood passed legislation on that in 2015 but the Nationality and Borders Bill would affect protections currently offered to victims and punish those deemed to have made claims of exploitation in “bad faith”.
O’Neill found the Bill fails to set out what “bad faith” actually means or how that would be established. She said there is also a risk that Patel’s regulations would disrupt age assessments in Scotland and, on the potential “offshoring” of those who arrive by boat, she said: “The Scottish courts have jurisdiction to hear disputes occurring in the territorial sea around Scotland’s coasts.
“The Scottish Parliament could pass legislation amending the Legal Aid (Scotland) Act 1986 Act to make express provision for support for offshored claimants.”
Kirsty Thomson, director at JustRight Scotland, said: “It is so important that in Scotland we don’t view the Nationality and Borders Bill as just another immigration Bill from Westminster that is imposed on us without question or recourse. This Bill will have disastrous consequences for people who are rebuilding their lives in Scotland. It has wide-ranging, negative impacts on Scots law, including child protection and our efforts to combat human trafficking.
“If we are truly a country which offers sanctuary and protection to those that need it, then the Scottish Parliament, the Scottish Government and Scottish public authorities should resist it as far as they are able to do so. The QC legal opinion we have instructed tells us that there are ways and means to mitigate some of the most egregious aspects of the Bill. Time is short and we are calling on those in power in Scotland to do their part and act now.”
SRC’s Graham O’Neill added: “Last week, we tragically saw 27 people lose their lives in the Channel. This Bill, in ending the right to asylum in the UK for most refugees, makes seeking safety here even more dangerous.
“This Bill also wilfully ignores the devolution settlement and how human rights, refugee welcome and anti-trafficking policy are made and valued by Scotland’s parliament, government, and its communities.
“Scotland must resist this Bill. This legal analysis can help us do so, with credibility, humanity and solidarity.
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“If the Scottish Government are to uphold their human rights commitments they must act. Rightful condemnation is welcome and justified, but the truth is that won’t be enough such is the danger in this Bill. We need comprehensive action.”
The Home Office said: “We talk regularly to Scottish authorities on our reforms and hundreds of people in Scotland responded to the public consultation of the Bill. Our New Plan for Immigration will fix the broken asylum system so that it is fair but firm, helping those in genuine need through safe and legal routes while stopping those who abuse the system.”
A Scottish Government spokesperson said: “The UK Government’s New Plan for Immigration and their Nationality and Borders Bill places their international reputation at serious risk.
“The Scottish Government has raised significant concerns about the UK Government’s New Plan for Immigration and their Nationality and Borders Bill. The UK needs a humane asylum system and the Bill will not achieve the change that is desperately needed.
“The Scottish Government will continue to monitor amendments during its passage.”
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