Justice 2 Committee, 03 Feb 2004

Meeting date: Tuesday, February 3, 2004

Official Report 125KB pdf

---

Asylum and Immigration (Treatment of Claimants, etc) Bill (UK Legislation)

Before the minister can rise from his seat, we must move on to consider the Asylum and Immigration (Treatment of Claimants, etc) Bill, which will be dealt with under another Sewel motion. I will let the minister's colleagues change positions and, once his officials from the Justice Department are ensconced, he might like to make some introductory remarks.

The issue that we are debating today is important and I would argue that the committee's consideration of it is welcome. The proposals fulfil an obligation that we made to the previous Justice 2 Committee and to Parliament when the Criminal Justice (Scotland) Bill was being considered that we would reflect on any potential weaknesses or loopholes in Scots law and move to close them down. I believe that the measures before the committee will improve our ability to deter criminals from targeting Scotland as a destination for human trafficking.

As the committee will be aware, most of the measures that are contained in the Asylum and Immigration (Treatment of Claimants, etc) Bill relate to reserved matters. However, the bill includes new provisions to help the fight against human trafficking, and the criminal law on trafficking is a devolved matter. I am therefore asking the committee to agree that we should take the opportunity to ensure that the deterrents and protection in Scotland are equal to those in England and Wales.

As members know, section 22 of the Criminal Justice (Scotland) Act 2003 created an offence of trafficking for the purposes of prostitution and so on, which was widely welcomed at the time. The new measures in the UK bill will help us in our continued fight against organised crime by introducing a new offence of trafficking for non-sexual exploitation and, as I have said, they will also fulfil the commitment that we gave during the passage of the Criminal Justice (Scotland) Act 2003.

Trafficking and the subsequent exploitation of victims create and perpetuate human misery and we should not tolerate such abhorrent crimes. Those who are involved in trafficking, whether for sexual exploitation or for forms of non-sexual exploitation, should feel the full force of the law.

The penalties that will be available to the courts for the new offence reflect the seriousness with which we view such crimes. Without legislation, a potential loophole could be created, as trafficking in human beings for non-sexual exploitation could be a crime in England and Wales but not in Scotland. It is important that we do not allow that to happen. We do not want to create a potential safe haven for traffickers in Scotland and I do not think that the public would accept that either.

In general, asylum and immigration are reserved matters, but the provisions to which the motion refers relate only to matters that are within the Scottish Parliament's devolved competence. I hope that the committee agrees to extend the provisions in the UK bill to ensure that no safe havens for the perpetrators of trafficking crimes exist anywhere in the UK.

Thank you, minister. Again, members have a cover note in their papers. Are there any questions?

I have two questions about clauses in the bill that the minister has not discussed, but which appear to me to have relevance for our devolved responsibilities. My first question relates to clause 7, which deals with the withdrawal of support from failed asylum seekers with children. There has been speculation in the media that withdrawal of support would pave the way, or make possible, the removal of children from parents who are failed asylum seekers. How does that fit with the Children (Scotland) Act 1995, which makes the welfare of children the paramount consideration?

My second question relates to clause 11, which deals with the unification of the appeals system. Will the minister comment on the views that have been expressed by the Law Society of Scotland and by a number of leading Scottish lawyers in a letter to The Herald? They said that the proposals represent a serious attack on the rule of law, as decisions by the immigration and asylum tribunal would be immune from review by the courts. Given that the jurisdiction of Scottish courts is a devolved matter, it seems to me that the matter is relevant to the Parliament.

Both matters that Nicola Sturgeon has identified are reserved. I am here to discuss a specific issue that is within our devolved competence, and I do not believe that the issues that Nicola Sturgeon mentions are competent as part of consideration of a Sewel motion. There might be other issues in the bill that should also be considered at Westminster, which is where such debates should properly take place.

I do not want to ask specifically about the minister's presentation, as I think that there is unanimous agreement that we also want to halt any possibility of trafficking in human beings. However, the Law Society of Scotland has made a number of points. Those points are not for us to consider, but we would be grateful if ministers reflected on them with their counterparts at Westminster to ensure that such concerns are at least considered and addressed as the bill progresses.

Any issues in this bill—and in any bill—that impinge on our responsibilities will be carefully considered. I assure Jackie Baillie and Nicola Sturgeon that any implications for us in the bill will be taken up.

I do not want to prolong the discussion unduly, but will the minister explain from a human point of view how a matter that impacts so centrally on the welfare of children—which is clearly devolved to the Scottish Parliament—cannot be a matter of concern for the committee and the Parliament? I dare say that the minister has a very technical legal explanation.

The issue that Nicola Sturgeon seeks to address has its roots in legislation that is the United Kingdom Parliament's responsibility. We have made it clear that we will act on any matters for which we have responsibility as ministers. Indeed, a number of my colleagues have made comments on such issues over a long period, but I do not seek to enter into a wider debate—which is clearly contentious—on the respective responsibilities of each jurisdiction in relation to asylum seekers. We are asking for the Sewel mechanism to be used for a specific issue and we will not go any wider than that.

Do members have any objection to Westminster legislating on this devolved matter?

Yes.

I accept much of what the minister has said about the competence of the Sewel motion, but I have grave reservations about the situation. The point is that other parts of the bill relate to devolved issues. Will the motion be debated in Parliament next week or the week after?

I am informed that this week's business motion will propose that the Sewel motion be debated in the Parliament next week.

Like Nicola Sturgeon, I dissent.

I take it that Colin Fox and Nicola Sturgeon are the only committee members present who dissent from Westminster handling the issue.

I want to put on record the fact that I have no objections to the provisions on human trafficking. My concern is that the terms of the Sewel motion do not comprehensively cover all aspects of the bill that may have implications for devolved areas. That is why I want to put on record my opposition to the Sewel motion.

For the sake of clarity, we had better have a formal division. The question is, that the committee is content for Westminster to legislate on the devolved aspects of this bill. Are we agreed?

No.

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Macmillan, Maureen (Highlands and Islands) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Whitefield, Karen (Airdrie and Shotts) (Lab)

Against

Fox, Colin (Lothians) (SSP)
Sturgeon, Nicola (Glasgow) (SNP)

The result of the division is: For 5, Against 2, Abstentions 0.

Therefore, the committee's decision is that it is content for Westminster to legislate on the devolved aspects of the bill.

It is competent for the committee to prepare a report, in which the committee may wish simply to note the position that has been discussed. We should perhaps emphasise to the minister the points that Jackie Baillie made that were highlighted by the Law Society of Scotland. The committee would regard it as helpful if the Scottish Executive could consider the points that the Law Society of Scotland has raised.

We will consider such issues in the way that I have indicated.

I thank the minister for attending the meeting.