Legal Opinion: What does the Nationality and Borders Bill mean for devolution in Scotland?

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Sabrina Galella, Policy & Public Affairs Officer at JustRight Scotland.

 

JustRight Scotland and Scottish Refugee Council jointly commissioned a legal opinion from Christine O’Neill QC and her team at Brodies to better understand the devolved impacts of the UK Government’s Nationality and Borders Bill (the Bill) for Scotland and its public bodies and possible ways to mitigate its harms. 

We commissioned the opinion because the Bill represents a significant attack on the rights of those seeking protection in the UK, whilst making damaging changes to Scots law. We aim to assist human rights defenders, communities, local authorities, Scottish Ministers and the Scottish Parliament to take action by taking clear legal, policy and advocacy measures to protect the rights of vulnerable groups in our communities.  

 

Where does this legal opinion take us? 

The cover note to the legal opinion explains that the UK parliament retains powers to legislate in areas of law, which are devolved to the Scottish Parliament (often called “devolved competence”). However, the “Legislative Consent Motion” (LCM) process establishes that the UK parliament will not normally legislate in a devolved matter without the consent of the devolved legislature. 

The explanatory notes in the Bill assert that a LCM, in this case, is not necessary, but it is our view that a LCM should be required because parts of the Bill reach far into areas of devolved competence. 

These are some of the most concerning areas of the Bill: 

  • Differential treatment of people, based not on need for protection but on method of arrival, The Bill’s so-called “Group 2” refugees will be at risk of severe criminal and administrative penalties and restrictions, including No Recourse to Public Funds (NRPF). This differential treatment clause will create an asylum system much more harmful than the current one. 
  • Age assessment provisions reach into Scottish child protection systems. The Bill compels Scottish local authorities to undertake age assessments at the direction of the Home Office, or else refer children to new National Age Assessment Boards. It allows the Home Office to set new standards against which age assessments are to be conducted and it introduces the use of deeply invasive, unethical and inaccurate medical age assessments. 
  • Provisions to human trafficking and exploitation, both areas of law devolved to the Scottish Parliament. The Bill impacts on who we recognise as a survivor of human trafficking and how we protect them, as well as our ability to prosecute the perpetrators. The Bill risks contravening key international legal instruments and obligations. The support system for survivors as well as how we identify and prosecute victims are provided for in the Human Trafficking and Exploitation (Scotland) Act 2015, meaning that the provisions of the Bill have implications for this landmark piece of legislation.  
  • Offshoring claimants, where people claiming international protection are taken offshore to process their claims for asylum, raises concerns about our obligation to provide legal advice and support.  

 

Why are we so concerned about the Nationality and Borders Bill?  

People seeking refugee protection in the UK already find themselves in a deeply harmful asylum system. However, this Bill, which we describe as anti-refugee legislation, represents a new low in the UK refugee policy and law and it severs the UK’s relationship with the UN Refugee Convention. 

In addition, elements of the Bill may contravene the European Convention against Trafficking, the European Convention on Human Rights, the UN Convention on the Elimination of All Forms of Discrimination Against Women and the UN Convention on the Rights of the Child. 

The Bill will also give the Secretary of State far-reaching powers that can be exercised with no, or limited scrutiny from Parliament. 

Critically, some of the most harmful parts of the Bill are in areas devolved to the Scottish parliament, and its consequences will have a wider impact beyond the UK immigration system, in ways that yet remain unclear. As Scotland seeks to implement core international human rights treaties by 2026 in its ambition to be a world leader in how we use devolved powers to protect human rights, this Bill directly threatens that commitment, especially if not challenged or mitigated here. 

 

What must happen now? 

We believe that the UK government should scrap this Bill. However, we must give serious consideration to what can be done in Scotland. 

Scotland must act with a full understanding of how deeply harmful this Bill will be to people seeking international protection in Scotland and commit to doing everything in its power to offer safety, respect, and dignity. 

Specifically, we are calling for: 

Scottish Parliament: 

  • To introduce a Legislative Consent Memorandum (LCM). This should give a clear outline of the provisions in the Bill that Scottish Ministers consider relate to Scotland. We also hope that Scottish Ministers will request the Scottish Parliament to both withhold consent in matters they feel are devolved and criticise this Bill in the process. 

Scottish Ministers: 

  • To maximise protections for victims of trafficking and exploitation who will be negatively affected by the Bill, by working with the Scottish anti-trafficking sector to make best use of their powers under section 9 (8) & (9) of the Human Trafficking and Exploitation (Scotland) Act 2015.  
  • To undertake a full review of flagship Scottish government strategies – including on New Scots Refugee Integration, the Ending Destitution Together and the Ending Homelessness Together policies as well as the Mental Health framework – with a view to taking action within devolved areas of competence to prevent and mitigate the harmful impacts of the Bill.  
  • To commit to ensuring that the Scottish Human Rights Bill provides a clear commitment to upholding the rights of refugees and migrants in Scotland – together with other commitments to create specific Human Rights Provisions where no international treaty exists, such as a right to a healthy environment and the rights of LGBTI+ people.   

Members of the Scottish Parliament (MSPs): 

  • Parliamentarians should take a proactive interest in this Bill and its implications for their constituents and regions. we urge them to undertake scrutiny of the Bill through its LCM process in parliament and, we hope, speak out against this legislation. We also hope parliamentarians can help secure measures, nationally and locally, to safeguard rights and safety for those who stand to be most harmed by this legislation. 

Scottish public authorities, including Scottish local authorities: 

  • To undertake a full review of the impact of the provisions of the Bill on their duties to protect and support individuals and families within their statutory areas of responsibility, to proactively identify areas where there is a risk of breach of individual rights, and to proactively safeguard against that risk.  
  • To pledge to implement and uphold a protective firewall between all our public services and immigration enforcement, so that those seeking refuge in Scotland may experience our public services as agents of protection, not as an extension of the “hostile immigration environment”.  

The Lord Advocate:  

  • To provide clear and human rights-compliant instructions to police and prosecutors on interpreting the public interest with regard to the criminal offence provisions in the Bill. These instructions should convey a clear understanding of patterns of need and vulnerabilities of those who necessarily arrive by irregular means to the UK. The instructions should also connect with and be mutually complementary to the Lord Advocate’s instructions on human trafficking.  

Scottish civil society organisations: 

  • To work as allies against this Bill and together on the Scottish Human Rights Bill, to ensure there is a clear commitment to upholding the rights of refugees and migrants in Scotland. 
  • To review their work to identify areas where the Bill will make refugees and migrants more vulnerable to harm or in need of assistance. 

 

Access the full briefing here  

Access the cover note to the opinion here

Access the legal opinion here

JustRight Scotland is a Scottish Charitable Incorporated Organisation (SC047818) which provides legal services through its limited liability partnership, JustRight Scotland LLP which trades as JustRight Scotland (SO305962). This firm has been authorised to act as solicitors by the Law Society of Scotland (Registered No 53703). Our Registered Office is: Room 1, 1st Floor, Libertas House, 39 St Vincent Place, Glasgow, G1 2ER.

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