Plenary, 12 Feb 2004

Meeting date: Thursday, February 12, 2004

Official Report 704KB pdf

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Asylum and Immigration (Treatment of Claimants, etc) Bill

The next item of business is consideration of motion S2M-838, in the name of Cathy Jamieson, on the Asylum and Immigration (Treatment of Claimants, etc) Bill, which is UK legislation, and one amendment to that motion.

Members will be aware that, last week, the Justice 2 Committee considered a Sewel memorandum on the Asylum and Immigration (Treatment of Claimants, etc) Bill in respect of trafficking for non-sexual exploitation.

Human trafficking is an abuse. It is a repugnant business that not only abuses the human rights of the victim but reflects on society as a whole. It is modern-day slavery. It is hard to imagine that a situation that we thought had ended in the 19th century with the abolition of the slave trade still flourishes today.

Slavery was an overt and profitable trade, but I am sorry to say that slavery in the form of trafficking for exploitation still exists in today's so-called progressive and modern society. Trafficking is a hidden and profitable operation, but it undermines the values we place on human lives and freedom. It is organised crime of the most abhorrent kind.

At the meeting of the Justice 2 Committee, I set out the reasons why we believe that the measures on trafficking in the UK bill should be welcomed and should be implemented in Scotland. I also explained why, as that is the only area of the bill that relates to devolved matters, only those provisions form part of the Sewel process.

The recent tragedy at Morecambe bay, which resulted in the deaths of 19 cockle pickers, has again highlighted the need for tough legislation on this matter to deter organised crime from targeting vulnerable people. Therefore, I have no hesitation in moving the motion.

I move,

That the Parliament endorses the principle of creating a new offence to combat trafficking in human beings for non-sexual exploitation as set out in the Asylum and Immigration (Treatment of Claimants, etc.) Bill and agrees that the provisions to achieve this end in Scotland which relate to devolved matters should be considered by the UK Parliament.

I understand that Bill Aitken does not wish to move amendment S2M-838.1.

That is indeed the case, Presiding Officer.

We agree with the substantive matter of the bill—which my colleague Phil Gallie will deal with directly—but we had an issue with the wording of the Sewel motion. The Minister for Parliamentary Business has agreed to reconsider the issue. On that basis, I am quite relaxed about the motion, so I will not move the amendment.

I preface my remarks on the Sewel motion by asking members to note that the Ay family, who spent 13 months incarcerated at Dungavel, yesterday lost their appeal for asylum in Germany. They are now set to be deported to Turkey, which is not only a country that is known for its repression of Kurds but one in which the four Ay children have never set foot. The plight of that family is a human rights disgrace. I take this opportunity to ask the minister to intervene by asking the Home Office that the family be given discretionary leave to return to, and remain in, the United Kingdom.

I oppose today's Sewel motion not so much for what it says as for what it does not say. The only clause in the bill to which the motion refers is clause 4, which creates the offence of trafficking people for exploitation. I support that clause, whose importance is hard to overstate, especially in the wake of the Morecambe bay tragedy last week, as the minister said. Although many parts of the bill are, strictly speaking, reserved, they will have an enormous impact on devolved responsibilities. Therefore, it is wrong that the Scottish Parliament is not having a full and substantive debate followed by a vote on those matters that are of central importance to our Parliament.

Overall, with one or two exceptions—clause 4 is one of the exceptions—the bill is an odious and draconian piece of legislation. Two provisions stand out in particular, both of which have implications for devolved matters.

First, clause 11 will deny asylum seekers whose claims are turned down the right to seek judicial review in the Scottish courts. In light of Amnesty International's findings earlier this week that up to one in five asylum decisions are wrong, it is beyond doubt that removing the right of judicial review will result in thousands of people being unjustly deported every year.

I refer members to an example from my case load. A Kosovar woman's claim for asylum was turned down because of a mistake—not her mistake, incidentally—on her application form about the nationality of the soldiers who raped her. She was able to go to court to have that mistake rectified and to be granted the right to remain in the United Kingdom. If the bill had been in force at the time of that woman's case, she would not have had the right to go to court. She would have been returned to Kosovo to almost certain persecution. That highlights the unjust nature of the bill. It is a denial of the due process of law and of human rights. As it concerns the jurisdiction of the Scottish courts, it should be the business of the Parliament.

Clause 7 allows for the withdrawal of benefits from failed asylum seekers with children. At the moment, asylum seekers whose claims are turned down will still receive asylum support if they have children under the age of 18. That will no longer be the case if the bill comes into force, which will inevitably result in children being removed from parents who can no longer provide for them—something that David Blunkett has shamelessly trumpeted as a good thing. Since child welfare is clearly devolved, it is hard to see how Westminster can pass that part of the bill without the consent of the Scottish Parliament. Given that it was the Scottish Executive that used the desirability of keeping families together as a justification for jailing children at Dungavel, it beggars belief that it is now prepared to sign up to a bill that will have the result of ripping families apart.

The Scottish Parliament will fail in its duty if it passes the Sewel motion as it stands without a full and substantive debate on the matters that impact so centrally on our devolved responsibilities.

Nicola Sturgeon began her comments by describing the bill that is passing through Westminster as "odious". That was the very word used by people such as Jack Straw when the Conservative Government introduced asylum legislation. They saw that legislation as being odious, so much so that, in 1992, Labour proposed an immigration bill that would set aside many of the Conservative proposals and actions. Here we go again with another immigration bill, but this time we are injecting back in some of the Conservative ideas in practical recognition of the problems that we have with illegal immigration and asylum seeking. We close our eyes to reality if we try to clamp down on passing such legislation. The Government is doing the right thing by trying to address the issues in the Asylum and Immigration (Treatment of Claimants, etc) Bill.

Following the disaster at Morecambe bay earlier this week, we have to state that that kind of thing should not be allowed to happen. We must apply controls and we can do that only by applying strict immigration and asylum rules. It might be that some members want to drop all immigration rules to allow free access to whoever wants to come into the country. That would be a legitimate argument. However, we have to ensure that there are laws in place that will allow the Government to control immigration at present.

Does Phil Gallie agree that there are strict controls on who gets to come into the country? We talk constantly in the chamber about a declining population and skills shortages, but perhaps we should look at how to bring skilled people into the country instead of trying to keep them out. I suggest to the member that if the bill goes through and its measures are implemented, there will be more and more illegal immigrants in the country and the kind of tragedy that we saw at Morecambe bay last week will be more likely to happen.

Nicola Sturgeon is an enthusiastic supporter of the European Union. Under its rules and through the extension of the European Union, we find greater opportunities for people with skills from other parts of Europe to come into the United Kingdom. However, there is still a limit on how many people the United Kingdom can sustain. We must take one step at a time. Rules already exist to allow skilled workers to come here if they take the legitimate approach and do not try to avoid our immigration rules and regulations. We have already covered those points. We can expand our work force where necessary under the existing system. We cannot allow people to cheat that system. Those people avoid the regulations and in so doing deprive people in other countries who want to come here legitimately. By condoning their actions, we prevent legitimate workers from coming from other places.

On this Sewel motion, we will support the Scottish Executive in passing on responsibility for Scotland's affairs to Scottish MPs at Westminster, who will ensure that our interests are guarded when the issue is debated there.

The bill was discussed in the Justice 2 Committee. My colleague Mike Pringle sits on that committee, but he is at a funeral this morning so it is unfortunate that members have me instead of him.

The debate is topical given the events at Morecambe bay last week. Incidentally, a few months back, similar people were working on Cramond beach in my constituency and were apprehended by the police. That kind of situation is happening not a million miles away from where we stand today.

The events of last week have opened the lid on trafficking, the international gang masters and the crime lords who are behind that misery and exploitation of human beings. Such criminals exploit people's dreams as much as anything else. We have an obligation to do everything that we can to tackle the problem.

I support the points made by the minister about the Sewel motion—we have to fulfil our obligations not only as part of the United Kingdom, but in the EU and by upholding the United Nations trafficking protocol. There is unanimous support in the chamber for doing that and, by passing a Sewel motion, we will ensure that Scotland does not inadvertently become a safe haven for such a miserable trade and that those who profit from it will not see Scotland as a soft option.

However, yet again we come to the thorny issue of Sewel motions and the discontent with how they are dealt with. The Procedures Committee should look at the matter. Some of the discontent is purely political in that the nationalists believe that the Scottish Parliament should deal with all matters. That is a respectable position, albeit not one with which I agree.

At the Justice 2 Committee, Nicola Sturgeon and Jackie Baillie commented on the devolved background to these reserved matters and on the points that the Law Society of Scotland raised about the jurisdiction of Scots law vis-à-vis tribunals. More important, Nicola Sturgeon talked again today about clause 7, which states that support for families whose claim for asylum fails will be withdrawn, which will have an impact on the children of those families. That may be a reserved matter but, as Professor Kathleen Marshall said in The Herald yesterday, although there are reserved matters, there are no reserved children.

We have a duty of care to ensure that children who live in Scotland have their welfare taken care of. I hope that the minister will pass on the concerns that have been raised during the debate and in committee about those matters. Although they are reserved, they have devolved dimensions. I hope that he will take my comments in good faith. I believe that the issue is of concern to us all. The procedure perhaps points up again our difficulties with Sewel motions, even though the current one works to the benefit of people by ensuring that we close a UK loophole.

Margaret Smith ably outlined the problems with Sewel motions in the Scottish Parliament, so I will not dwell on that issue. However, I will dwell on the huge impact on the Scottish Parliament's areas of responsibility of aspects of the Asylum and Immigration (Treatment of Claimants, etc) Bill that we will allow to slip through Westminster.

Public services in Scotland will be affected by what David Blunkett does down in Westminster. We should be discussing the issues that will affect not only services in Scotland such as the police, social work, children's hearings, education and health, but the Children (Scotland) Act 1995 and the welfare of children. If we allow Westminster to take all the decisions, we will be allowing our local authorities to neglect their duties of responsibility for children.

I thank Linda Fabiani for giving way. She is right to say that Westminster legislates on many of the issues to which she referred. However, Europe probably has a greater influence over such issues. She complains about Westminster's influence, but how does she feel about Europe's?

Mr Gallie knows how I feel about that issue. My view is plain and straightforward: Scotland should be independent in Europe and should be able to influence European decisions.

I am glad that the Executive has taken some responsibility for asylum seekers and refugees in Scotland. About £1.5 million has been spent on support services in Glasgow since the dispersal programme started and a further £1 million is budgeted for it. That is proof of our taking responsibility in Scotland for asylum seekers. However, the fact that failed asylum seekers are being evicted in our communities shows that we should take more responsibility for such people. The Scottish Refugee Council estimates that around 50 per cent of the asylum seekers that we are evicting in Scotland are unable to return to their own country of origin—China being a case in point—even if they wanted to.

We are making people destitute and telling them that although we know that they cannot return to their own countries, we no longer have any responsibility for them. To salve our consciences, we tell them that we will take their children if they have any. Meanwhile, we tell the adults, "Away you go and sleep rough." If our next generation of rough sleepers are likely to be failed asylum seekers, how can we say that we do not want to take full responsibility for asylum seekers in Scotland? How can we say that we will hand over, by the method of a Sewel motion, all the responsibility to Westminster?

I turn now to the issue of Dungavel, which demonstrates another responsibility that we shirk badly in Scotland. Margaret Smith made the point that we have no reserved children; we do not and should not have such children. However, we are allowing children who are locked up in our country to be the responsibility of the Home Office rather than the responsibility of the Scottish Parliament. We allow the local authority in which Dungavel is located, South Lanarkshire Council, to have discussions with the Home Office about the welfare of children in Dungavel, but individual MSPs are told, "If you want to know anything about it, away and ask the Home Office because the Scottish Executive is taking no responsibility." That is a huge anomaly, as are all the different aspects of immigration and asylum for which we refuse to take responsibility. That is why the Scottish National Party opposes the Sewel motion. Our position is plain and straightforward. We will continue to oppose Sewel motions until members waken up to their responsibilities.

As I have said previously, the Scottish Green Party has serious concerns about the process of Sewel motions. We want a more satisfactory arrangement to be put in place before serious mistakes are made because of the extremely poor level of scrutiny that is possible at the moment. However, we do not oppose Sewel motions in principle. When we oppose them, we do so for specific reasons. I have three major areas of concern about the issue in the Sewel motion that is before us, two of which were mentioned earlier by Nicola Sturgeon. However, there are three aspects of the Asylum and Immigration (Treatment of Claimants, etc) Bill that the Scottish Parliament should be able to examine in detail.

First, I want to deal with clause 7, which is about the removal of support from families with children. That is already a deeply disturbing issue in Glasgow and elsewhere. Scores of households are being turfed out on to the street with no form of support. In the jargon of the Home Office, they become non-returnables. However, we are talking not about empty bottles but about human beings with vulnerable families who are seeking help. We have a responsibility for them, but the bill will inflict destitution on more of those people. The welfare of children is a devolved issue and I believe that there is strong public support for the Scottish Parliament to take a humane approach to asylum seekers, who include people for whom protection from exploitation and trafficking is necessary. Therefore, we must consider the impact that the whole bill will have on such victims.

Secondly, I want to speak about clause 11, which Nicola Sturgeon also mentioned. Senior figures in the legal field have already raised their voices against clause 11, which removes the right of appeal from asylum seekers and gives the proposed asylum and immigration tribunal immunity from our courts. Given the shockingly poor record of decision making in asylum cases, it seems lunacy to allow our courts to be circumvented in that way.

Thirdly, I want to mention the impact that clause 2 will have on the victims of trafficking. That was the main theme of an amendment that I had hoped to move in the debate. Clause 2 will create a new criminal offence of entering the country without valid immigration documents. That is something that would be true of the vast majority, if not all, the victims of trafficking. Again, ministers will no doubt argue that that is an immigration issue and is therefore reserved. However, surely the creation of a new criminal offence should at least be debated in the Scottish Parliament. Moreover, the potential impact of the creation of the new offence on victims of trafficking could be grave. Even if they were guaranteed immunity from prosecution for undocumented entry, many would be deterred from seeking support and protection from exploitation.

Therefore, the motion in front of us today examines only one tightly defined aspect of the bill. Until we have the opportunity to examine the bill's wider measures and to consider how they will impact on people in need of protection from trafficking and exploitation, I cannot support a Sewel motion on the bill. To do so would be to wash our hands of issues such as the welfare of children in Scotland, the role of the Scottish courts and the criminalisation of innocent people in Scotland. We can have no faith that the UK Government and its neutered Parliament will act in the best interests of the vulnerable in such issues. Their record on asylum seekers is one of authoritarianism and draconian treatment. The bill's wider measures are just the latest example of that. We cannot trust the UK Parliament or Government to act in the best interests of asylum seekers, so we cannot give them our consent to do so.

The Scottish Socialist Party also intends to oppose the Sewel motion on a number of grounds. First, we are not in favour of giving David Blunkett any more powers than he has already. It is clear that every time he opens his mouth, he makes another attack on human rights. Helena Kennedy, who is a Queen's counsel, a Labour supporter and, I think, a signed-up member of the red rose club, said last week or the previous week that David Blunkett is authoritarian. The evidence to support that statement is clear, not only from asylum issues, which I will mention in two minutes, but from other issues. For example, David Blunkett introduced a major extradition treaty between America and the EU, kept it secret until two days before he signed it and allowed little or no scrutiny of it in the Westminster Parliament. Under his new proposals, which Helena Kennedy was talking about, he wants terrorism suspects to be tried in secret by vetted judges with no jury and without even seeing the evidence against them.

Frances Curran mentioned the proposed new terrorism laws. Is she aware of the fact that right now in Belmarsh prison there are a number of suspected—and I stress the word "suspected"—terrorists, who have been held there without charge or trial for two years? It is Britain's own Guantanamo bay. Will she join me in condemning that?

Absolutely. Of the 529 people who have been arrested as suspects on terrorism charges, only two have been convicted. I think that that speaks for itself.

It must be quite a day when it is the Tory shadow Home Secretary who accuses the Labour Home Secretary of throwing away the very freedoms that we are fighting for. Such is the respect that David Blunkett and the Government have for the laws on asylum issues that he has frequently been found guilty in the courts of breaching the rights of asylum seekers by denying them food, support and shelter. What is his response to those so-called independent courts that have found him guilty? Does he put his hand up and say, "Guilty as charged"? No, he disnae. He says, "The judges are too liberal. I'm right and the courts are wrong."

We are being asked to hand over the rights on this bill—and I agree with Nicola Sturgeon that the whole bill is odious—and on the specific issue of trafficking to the Labour Government and to David Blunkett in particular. It is a mistake for this Parliament to hand over those rights without making any kind of criticism.

We have had the tragedy in Morecambe bay, but it is clear that passing the bill and establishing the new offence of trafficking are like trying to deal with the issue by aiming at the dartboard and hitting the wall. It has emerged in the past few days that the immigration office was contacted and already had powers to deal with the gang masters in Morecambe bay, but chose not to use them. So why are we giving the immigration service more powers? This Parliament will not be party to the debate; we will not even have any say if the Sewel motion goes through.

One thing that would undermine the role of the gang masters and affect trafficking would be to allow asylum seekers to have a work permit and to work legally in this country. That would make a big difference to the illegality of the situation and the vulnerability of those sections of the population. I urge the Government to move in that direction in its discussions with Westminster on the bill, but the Scottish Parliament should be opposing it. It is not a question of a Sewel motion; it is a question of human rights.

I wondered whether I had come in for the wrong debate at the wrong time, because so many of the speakers have failed to address the issue. It is quite sad that some of the contributions clearly indicate that the speakers do not understand the process in which we are involved.

I have to ask Frances Curran, Patrick Harvie and others whether, if we were to take at face value the power and strength of their arguments, and if we were then to agree to what they suggest and vote down the Sewel motion, we would be able to open up the whole of the Asylum and Immigration (Treatment of Claimants, etc) Bill for discussion? No, we would not, because it is a UK bill. Whether we should or should not is in fact totally irrelevant as far as today's debate is concerned. We do not have the power. What Frances Curran and Patrick Harvie are asking us to do is to become a revising chamber of the House of Commons, and that is not our function.

Will Hugh Henry take an intervention?

Will Hugh Henry take an intervention?

No, I will not, because I have only a couple of minutes.

Those members are asking us to do something that is not competent and is irrelevant. If we listened to Frances Curran or Patrick Harvie, we would not reopen the debate on asylum and immigration. In fact, there would be nothing whatever before this Parliament. We could just walk away from the whole issue.

Shame.

Whether members think it a shame or not, the fact is that that is the procedure. The motion is before us today only because we have attempted to address one specific issue. In fact, what we have heard this morning is ignorance compounded by prejudice. Frances Curran and Patrick Harvie clearly do not understand.

I find it incredible that the Greens, the Scottish Socialist Party and the Scottish National Party, which have all at different times professed concern for organised labour and defending the rights of ordinary people, now find themselves asking us to vote down a motion that will extend protection to exploited workers. We find ourselves in a situation in which they want to deny protection to exploited workers, while the Conservatives are prepared to give some protection to exploited workers. How absurd.

Will Hugh Henry give way?

No. Nicola Sturgeon should sit down. If she and other members cannot support the motion, I can only conclude that what she, the Scottish socialists and the Greens are doing is posturing. They are posturing in the confidence that we will take the decision to give protection to exploited workers. They want to posture and they do not want to take the decision, but they want us to give that protection to organised workers. It is cowardice dressed as principle.

I really cannot imagine a situation in which this Parliament would walk away from those who are being trafficked by criminals in order to satisfy an irrelevant, abstract point raised by other members on issues over which we have no power. Members must make a decision. Are they going to vote to give protection to exploited workers or are they going to turn their backs on those exploited workers? That is the question before members today.