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 today despite serious concerns around the legality of the legislation and human rights concerns.
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 last night, with MSPs subsequently backin ga motion by Deputy First Minister John S win ney 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.
He said :“We should be pursuing alternatives to criminality because in the end the people should not be criminalised for the failing s of government .”
Despite the strong wording, MSPS voted in favour of the S NP’S motion alongside the Scottish Green amendment.
The support for the move came despite“serious legal questions” around the draft regulations on travel, raised by the Scottish Conservative MS PA dam Tom kins, a constitutional law expert.
He questioned whether the rules are “within Holyrood’s competence”.
Mr Tom kins 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 Holy rood’ s competence? For one thing, freedom of movement would appear to be expressly reserved to the UK parli amen tun de rt he 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 Ire - land.
“It’ s not at all clear if the draft regulations published today are within the rem it of the Scottish parliament. There are, at least, grave doubts about the legal competence to act in the way Scottish ministers propose .”
The Scottish Conser vative’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 Ca led on ian 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 out with 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.”
At First Ministers Questions before the vote, Nicola Sturgeon responded to criticism of the travel ban saying that she is determined to “keep the country as safe as possible”.
Mr Leonard said: "The overwhelming majority of people are just trying to keep up with regulations in order to follow them. But the b est- case sce - nario as it stands is that this travel ban will confuse them, the worst- case scenario is it will criminalise them.
"The travel ban is a red herring, instead the First Minister must take action on some of the things this parliament and the people have been calling for."
Mr Leonard went on to say that a“properly resourced test and protect system” was needed, along with appropriate PPE for health care workers and “safer schools for our children”.
He concluded by saying: “So First Minister, will you admit that you have not got this right ?” adding that she should“re think the travel ban and its application”.
The First Minister responded :“I have all along said‘ I have not got everything right’ and ‘ will not get ever y thing right’ and I’ll continue to try to get things right and be candid when we don’t.
"But I will also take the actions that I consider, and people are entitled to dis agree, that are necessary to keep the country as safe as possible.
"In a situation like this it is absolutely incumbent on somebody like me to do my level b est to do the right things and the necessary things, even if these are not always popular.”
She went on to explain that Scotland is so far avoiding a national, “one size fits all” lo ckdown, adding the travel ban was necessary to maintaining this. Ms Sturgeon said Labour First Minister of Wales Mark Drakeford sup - ported a travel ban top revent coronavirus spreading across Wales, and the UK.
She concluded :“He is determined to keep his country safe, and I am as determined as he is to keep my country as safe as I possibly can.”