THE Scottish Government has said it will “reflect” on calls to launch a legal challenge against the Tories’ Rwanda bill – after critics said it “strikes at the heart” of protections of Scotland’s ancient legal system enshrined in the Act of Union.
An obscure clause in the 316-year-old law which ended Scotland’s independence protects the “authority and privileges” of the Court of Session, the country’s highest civil court, including its right to exercise “nobile officium”.
That guarantee enables the Court of Session to mitigate laws that might be considered overly harsh – such as the Rwanda bill.
Asked to respond to calls for the Scottish Government to take action against the plans, an official spokesperson said ministers would “reflect on the points made regarding the Court of Session”.
SNP MP Joanna Cherry (below), who led the successful legal battle against Boris Johnson’s unlawful closure of Parliament in 2019, raised concerns about the Rwanda bill’s central clause which prohibits courts from hearing appeals against deportations on the grounds the country is “unsafe”.
The Government’s original plans to deport asylum seekers to central Africa were struck down earlier this year by the Supreme Court because asylum seekers sent there could be at risk of being sent back to their home countries, where they could be at risk of persecution.
It is a legal principle known as “refoulement”.
Cherry’s concerns were not addressed by the Government during the debate on the bill last week, but now both Scotland’s governments are facing questions on the potential impact it could have on the Scottish legal system if it were to upend rights the Court of Session has held for centuries.
Both the English Attorney General and the Scottish Government are facing questions about the potential implications of the bill from the Alba Party.
READ MORE: Rwanda plan 'could be subject to Scottish court block', says Joanna Cherry
There are hopes among some in the Yes movement that the Scottish Government could take up a court case against the bill.
'The Tories haven't considered the Scottish angle'
Cherry’s bid to overturn the unlawful prorogation of Parliament before the 2019 General Election was privately funded, but it is understood the chances of this are slim.
But she vowed she would fight on and predicted a legal challenge against the Rwanda bill on constitutional grounds “might fare better in the Scottish courts”.
She said: “It’s important to appreciate that the Scottish constitutional issues I raised during the second reading on the Rwanda bill relate to devolution, Article 19 of the Treaty of Union and the issue of sovereignty.
“Needless to mention, I didn’t get an answer from the minister in the chamber to any of the issues I raised, and I am quite certain that in their haste to pass this draconian legislation, the UK Government hasn’t thought about the Scottish angle properly. I will be following up on the issues I raised.
“A number of academic lawyers have suggested that when this bill becomes law, it might face a constitutional challenge.
“My preliminary view is that such a challenge might fare better in the Scottish courts, just as my challenge to the unlawful prorogation did and might also be a good opportunity to raise issues pertinent to the protections afforded to the supervisory jurisdiction of Scotland’s Court of Session by the Treaty of Union and the issue of parliamentary sovereignty, which is a very English concept and not really one known to Scots law.”
'They are playing fast and loose with Scotland's legal system'
Neale Hanvey (below), the Alba Party’s Westminster leader, has tabled a written question in the Commons for Attorney General Victoria Prentis, asking whether the UK Government has discussed the “potential impact” of the Rwanda bill on the Act of Union and whether she has discussed the matter with the Cabinet.
Hanvey said: “As well as having serious implications for the human rights of the refugees impacted by this draconian and insidious legislation, the Rwanda bill also calls into question the protection of our separate Scottish legal system whose distinctive identity was supposed to be safeguarded by the Treaty of Union of 1707.
READ MORE: Joanna Cherry in bid to radically change role of Scotland's top lawyer
“I am therefore calling on the English Attorney General to set out what discussions she has had with her Cabinet colleagues and with the Scottish Government law officers on the potential impact of the Safety of Rwanda (Asylum and Immigration) Bill on the Act of Union.
“This bill strikes at the heart of the supposed protections contained in the Treaty of Union. The UK Government cannot be allowed to play fast and loose with Scotland’s distinctive legal system.”
Alba MSP Ash Regan (below) has tabled written questions for the Scottish Government in Holyrood, asking whether it has discussed with Whitehall officials the potential impact of the bill both on the Act of Union and on the “powers, independence and operation” of the Scottish courts.
Regan said: “The independence of the Scottish courts to decide, as they see fit, on these important matters, impacting as they do on the most vulnerable and traumatised refugees, must not be impeded by legislative diktat from the most right-wing Tory government in living memory.
“I am asking the Scottish Government’s law officers what assessment they have carried out on the potential impact of the Rwanda bill on the powers, independence and operation of the Scottish courts.”
Criticising the Edinburgh administration for its recent string of legal defeats, the SNP defector added: “Rather than engaging in protracted legal battles, which have little chance of success, the Scottish Government might do better to consider a legal challenge on an issue of substance and one with a real chance of being successful.”
A Scottish Government spokesperson said: “We will reflect on the points made regarding the Court of Session. The Scottish Government is clear in our opposition to the Act.”
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