MSPs vote for travel ban for Scots despite 'grave doubts' and legality concerns

MSPs have voted in favour of the principle of the new travel ban due to come into force on Friday despite serious concerns around the legality of the legislation and human rights’ concerns.

Thursday, 19th November 2020, 7:07 pm
From tomorrow, Scots will be breaking the law if they travel to or from Level Three or Four areas for non-essential purposes.
From tomorrow, Scots will be breaking the law if they travel to or from Level Three or Four areas for non-essential purposes.

Scottish Labour had forced a vote on the travel ban by putting forward an amendment to prevent the restrictions being enshrined in law amid claims from leader Richard Leonard the ban was “not common sense”, but “nonsense and the government knows it”.

But the amendment was voted down on Thursday night, with MSPs subsequently backing a motion by Deputy First Minister John Swinney to endorse the regulations by 99 votes to 23.

In an impassioned speech, Mr Leonard said the ban risked criminalising people who were “understandably confused” about the regulations and the changing guidance in Scotland.

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Analysis: Does the travel ban breach the human rights of Scots?

He said: “We should be pursuing alternatives to criminality because in the end the people should not be criminalised for the failings of government.”

The support for the move came despite “serious legal questions” around the draft regulations on travel, raised by the Scottish Conservative MSP Adam Tomkins, a constitutional law expert.

He questioned whether the rules are “within Holyrood’s competence”.

Mr Tomkins said: “There are serious legal questions to be asked about the draft regulations published by the Scottish Government, which include rules about who may ‘enter or remain in’ Scotland. These rules appear to affect British and Irish citizens across the UK and Ireland.

“Is this within Holyrood’s competence? For one thing, freedom of movement would appear to be expressly reserved to the UK Parliament under the Scotland Act. For another, it’s not clear that the Scottish Parliament can make rules contrary to the Common Travel Area, as agreed to by the UK and Ireland.

“It’s not at all clear if the draft regulations published today are within the remit of the Scottish Parliament. There are, at least, grave doubts about the legal competence to act in the way Scottish ministers propose.”

The Scottish Tory’s comments came alongside warnings of potential overuse and abuse of the law once they are in place, with Dr Nick McKerrell, a senior lecturer in law at Glasgow Caledonian University and an expert in human rights law, warning the shift to legal enforcement could lead to human rights’ breaches.

Dr McKerrell said: “Public health is a long-standing reason for state intervention limiting individuals’ human rights.

“However, the big difference with a legal enforcement of a travel ban within local authority boundaries are that for it to be operationally possible, it requires giving arbitrary powers to the police to stop random cars. This is something we do not allow in our law for drink driving offences – there needs to be a reason that the police stop the car.

"What sort of drivers will be stopped under the travel ban? People driving late at night? People driving near local authority boundaries? People whose cars are registered outwith the area they are travelling in? No one knows. It is in that legal climate that abuse of human rights becomes more likely.

“The law when published will need to be explicitly clear on what precise power it is giving to police officers.”

The Scottish Government was contacted for comment.

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