Borders, Citizenship and Immigration Bill
The next item of business is a debate on legislative consent motion S3M-3652, in the name of Kenny MacAskill, on the Borders, Citizenship and Immigration Bill, which is United Kingdom legislation.
The motion seeks approval for the UK Parliament to apply provisions in sections 1 to 4 of the UK Borders Act 2007 to Scotland. Those sections allow a designated immigration officer to detain for up to three hours, pending the arrival of the police, somebody who is subject to an outstanding arrest warrant. That provision will ensure that Scotland's borders are as secure as those elsewhere in the UK and that Scotland cannot be perceived as an easy way in.
Currently, there is a potential loophole in the law that could mean that an immigration officer would have to allow a wanted person to enter or leave Scotland in spite of the officer being aware of an outstanding arrest warrant. The provision will put Scotland on a par with the rest of the UK, but with appropriate safeguards. In practice, matters will be largely unchanged. Police are routinely present at our major sea ports and airports; even when they are not, notification of passenger data normally allows immigration officers to alert them in advance.
I turn to issues that were raised in the Justice Committee's report on the Borders, Citizenship and Immigration Bill. I am grateful for that committee's thorough consideration, and I have acted on its concerns as far as possible. It identified concerns that the Scottish Refugee Council raised, which highlighted that UK Border Agency staff in Scotland may not be subject to as rigorous a complaints mechanism as that in England and Wales. I wrote to the minister of state responsible for that issue at the Home Office, Phil Woolas, and reiterated the committee's concern that a clear position needs to be established on how allegations of non-criminal misconduct against immigration officers are managed.
Powers exist that allow the Home Secretary to make an agreement with the police complaints commissioner for Scotland, so that the commissioner can review complaints that have been made against immigration officers in the same manner as complaints that have been made against police officers, but such an agreement is not yet in place. I have asked for all possible steps to be taken to establish such an agreement as soon as possible. Clause 54(11) of the bill provides that the Scottish ministers are to be consulted before the power of detention is commenced. I have stressed to the UK Government that I would not support commencement until the position on complaints is clear. It is clear that any immigration officer who is charged with a criminal offence is dealt with under the normal course of events. Mr Woolas responded to my letter yesterday, and provided a reassurance that steps were being taken to resolve the matter as soon as possible. I have sent a copy of the exchange to the Justice Committee.
The Law Society of Scotland and the Scottish Refugee Council expressed concerns about clause 50, which would make it possible for immigration judicial reviews to be moved from the Court of Session to the UK immigration tribunal. Clause 50 is not relevant to the legislative consent motion, as it is does not touch on devolved matters, but as we have an interest in the effective management of the Scottish courts, we asked the UK Government not to proceed with that provision before the recommendations of our on-going civil court review under Lord Gill are known. The Scottish judges asked for the same consideration. Unfortunately, the UK Government has chosen to plough ahead with clause 50 regardless, and the current devolution settlement prevents us from stopping it. The Scottish Government does not have power over that, and the matter is not within the domain or control of the Parliament.
Those aspects are concerning, but they are for another day and another forum. As I said, the Scottish Government has reiterated its position, and I am conscious that there are significant concerns around the chamber. If it is thought that the mood of the Parliament about how the UK Government is acting on clause 50 should be expressed, I will be more than happy to do that.
However, I call on members to support the motion today. Opposing it will do nothing to change the UK Government's position on clause 50. As I say, concerns raised by the Scottish Refugee Council remain to be addressed. However, if we do not support the motion, we will leave a loophole that could allow criminals to enter or leave our country when they could and should be stopped. The motion will help to close that loophole and will ensure that immigration officers can support the police in tackling crime effectively.
I am aware of the concerns that were raised by the Justice Committee. One particular matter is being addressed by Mr Woolas, and I ask members to accept his indications of support and action in the spirit in which they have been offered.
I understand the concerns over clause 50, which have been expressed in the chamber and elsewhere. However, those concerns are for another day. The Government will be more than happy to take up those concerns, but I ask that the motion is supported, in order to close the loophole and ensure that people who are subject to a warrant cannot access or egress Scotland with impunity.
I move,
That the Parliament agrees that the relevant provisions of the Borders, Citizenship and Immigration Bill, introduced in the House of Lords on 14 January 2009, relating to the power of detention for individuals subject to an outstanding arrest warrant and their enforcement, so far as these matters fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament.
Labour supports this legislative consent motion because it is important that our borders are perceived as having the same levels of security as those of the rest of the United Kingdom. However, some valid questions have been raised about a couple of issues relating to the legislative consent motion, and it is right that we have the opportunity to discuss those questions in Parliament today.
The UK Government is acting to strengthen the law in relation to the security of borders, and it is important that this Parliament takes action to ensure that the same legislative provision can apply here in Scotland. At the Justice Committee, the cabinet secretary pointed out the legal loophole whereby an immigration officer would have to allow a wanted person to enter or leave Scotland even if the officer was aware of an outstanding arrest warrant in that person's name. It is indeed important that immigration officers in Scotland are given the same powers as their counterparts in England and Wales, so that they have powers of detention with the appropriate safeguards. We think that the effect of the legislative consent motion will strike the right balance between giving police officers primacy in enforcing the law in such areas and allowing immigration officers to detain someone who is subject to a warrant for three hours until the police arrive.
Because of the presence of police at the vast majority of locations in Scotland that are points of arrival and departure, the powers may require to be used only infrequently. Nevertheless, it is important that immigration officers here have the same powers as officers in the rest of the UK, so that we are not perceived as having any weaker border controls. It is of course right to have the appropriate powers in place to deal with every eventuality, and I understand from the cabinet secretary's evidence to the committee that the police support this measure.
As the cabinet secretary said, the Justice Committee's report pointed out two concerns expressed by the Scottish Refugee Council about the legislation. The first is the SRC's concern that the enforcement powers of UK Border Agency staff in Scotland would not be subject to the same degree of scrutiny and accountability as in England and Wales, as asylum seekers and others subject to enforcement powers in Scotland would not have parity of recourse to an independent and direct complaints mechanism. However, the cabinet secretary has sensibly suggested that the police complaints commissioner for Scotland could be given powers to oversee certain complaints made about UK Border Agency staff. I understand that the cabinet secretary has written to the Justice Committee with information on further progress on the issue; and this afternoon he has assured the chamber that he is in further dialogue with UK ministers. We seem to be moving sensibly and effectively in the right direction, which we welcome.
The second SRC concern has also been expressed by the Law Society of Scotland. It relates to clause 50 and to the transfer of two classes of work away from the Court of Session—immigration appeals and judicial review, which would instead go to an upper tier tribunal. Clearly, that would have practical impacts. Further dialogue on those points between Home Office ministers and the cabinet secretary would be welcome as the bill progresses through Westminster. I do not want to pre-empt any wider view from my group on the points, but I think that it is fair to say that I look forward to being in further contact with the cabinet secretary. Valid concerns have been raised, and I hope that there can be further constructive dialogue among ministers here and at UK level.
Clearly, the overarching priority is to ensure that Scotland has the same appropriate ability to secure its borders as the rest of the United Kingdom has. I therefore once more confirm our support for this legislative consent motion.
When this matter came before the Justice Committee, a series of concerns were expressed. We can claim that some progress has been made and that we have got the system going in order that the matter can be resolved satisfactorily.
There was a loophole that simply had to be plugged. We would not wish to live in even more of a soft-touch Scotland than exists today. It is extremely important that we ensure that our component of the borders of the still United Kingdom is kept secure.
That said, there were complaints. The issues raised by the Scottish Refugee Council had some veracity and were of concern to the Justice Committee. Somebody—either here or, more probably, at Westminster—should have anticipated that this situation would arise somewhere down the line and it should have been sorted long before we got to this stage. However, it is a common-sense approach to have the police complaints commissioner for Scotland carry out the appropriate inquiries in the event of allegations of misconduct. It is one of those situations where things are much simpler if the misconduct is criminal misconduct, because it is then investigated purely by the police and the procurator fiscal, in accordance with any other criminal allegations. Of course, the allegations that we are talking about would not be criminal misconduct but concern the way in which individuals had been treated by officials at an airport, for example.
We are perhaps talking in a bit of a vacuum in that these situations will not arise frequently, because, as Richard Baker said, police officers will almost invariably be in attendance. However, even in the best organised society, things happen. We might face a situation whereby, if there were no police officers present, the UK Border Agency might get itself into some sort of confrontational situation. There clearly has to be some recourse in the event of that happening and a complaint being made.
This is work in progress. I note from the correspondence that the cabinet secretary sent yesterday that discussions are on-going. It is perhaps a bit of pity that those discussions did not take place earlier.
I turn to clause 50 and its application. It is perhaps a little unfortunate that the Westminster Government is taking a wee bit of a hard-nosed attitude in that respect. The Justice Committee and, I would like to think, all members of the Parliament take Scots law very seriously indeed and would seek to protect its powers. We have a situation whereby appeals would be taken out of the Court of Session and transferred down south, which is regrettable.
The cabinet secretary will be aware that he has in his office other correspondence from me about appeals against tribunals in general. I received a phone call earlier today from one of his officials indicating the extent of the work that has been carried out on that. I hope that I will have a reply next week that I can share with my colleagues on the Justice Committee about the general aspect of tribunal appeals being transferred.
It is a little unfortunate that the change is being introduced while we are awaiting the report of the Lord Justice Clerk on the full review of civil law procedures in Scotland. If we had waited a matter of a few weeks, we could have resolved the situation in perhaps a tidier manner.
There is no great issue. I maintain that the Justice Committee was correct to have the matter debated in the chamber, albeit in a half-hour slot. What has happened has enabled a lot of clarity to come in through our encouraging the cabinet secretary—although I know that he was quite willing—to write to his opposite number at Westminster and to get a reply that allays our concerns, at least partially.
The Liberal Democrats support the primary purpose of the legislative consent motion, for the reasons that the cabinet secretary set out. Indeed, the co-operation that has developed on justice matters between the cabinet secretary and his UK colleagues is gratifyingly warm to the cockles of one's heart.
In debating legislative consent motions, it is always necessary to distinguish between issues of substance in the Scottish Parliament's sphere of competence on which we legitimately empower Westminster to legislate and issues on which we may not like the UK Government view—and on which we want to express strong opinions—but which are nevertheless a matter for the House of Commons and the House of Lords to sort out and decide on. There is a view that Scots law in its entirety is the preserve only of this chamber. That is not, of course, the case. Scots law is largely the preserve of this chamber, but bits of it—immigration law is a good example—are the preserve of the reserved jurisdiction at Westminster.
The LCM raises both kinds of issues. An example of an issue of substance is the matter of the oversight of complaints about UK Border Agency staff and various linked issues of training and information, which I hope are being resolved. I am grateful to the cabinet secretary for the copies of correspondence that he made available in that regard. As the convener of the Justice Committee said, the office of the police complaints commissioner for Scotland is the proper and reasonable forum in which to deal with the matter.
Other members have also mentioned the substantial concerns that the Law Society of Scotland, the Scottish Refugee Council and others have raised. I turn first to concerns about clause 50 on the transfer away from the Court of Session of jurisdiction in immigration appeals and judicial reviews on immigration cases. We all can take a jaundiced view on why the Government in London may be in such a hurry to do that. Immigration has become a sensitive point of contact, with the views of many MSPs on the subject differing from the view of the Labour Government in London. We can question the need for such haste on some aspects of the bill, particularly against the background of the review of civil procedure and tribunals.
It is a matter of regret that no separate consultation was undertaken on the transfer of jurisdiction. It is also unsatisfactory that the transfer pre-empts the civil justice review, particularly given the clear intention of reducing the rights of refugees. In addition, the arrangements for the proposed replacement of the Court of Session with the so-called upper tier tribunal are entirely unclear. We do not yet have an assurance that a judge will be present in every case and at every stage. These are matters of reserved jurisdiction for our colleague MPs at Westminster to consider. However, it is undoubtedly the case that they raise substantive issues on the quality and independence of the rule of law in these situations and the position of the Scottish courts, in which we have the primary interest.
The second area of concern, which has not been touched on thus far in the debate, is that the UK Government—itself a party to immigration cases—apparently wants to write the tribunal rules. Clearly, the tribunal is a reserved matter, but it will be something of an outrage in terms of natural justice and independent decision making if that ends up being the position. The Scottish Government can engage with the Westminster Government on behalf of the Scottish Parliament on broader issues that are beyond our formal powers, even if they are reserved. It is entirely appropriate for the chamber to ask the cabinet secretary to take forward such matters on behalf of the Scottish Parliament.
In his recent correspondence, the cabinet secretary did not raise the issues that I have just highlighted. I hope that he will express to the UK Government the concerns across the Parliament on these matters, and in fairly forceful terms. I am asking him to pray in aid the keen interest of the Scottish Parliament on the standing of and independence from Government of the Scottish judicial system.
Given that we are debating reserved matters, members on the Liberal Democrat benches do not intend to oppose the LCM. That said, like the Justice Committee, we feel entirely justified in saying that the Scottish Parliament and the Scottish Government should be able to express concern to Westminster on such matters. The committee consideration that preceded today's chamber debate, and this debate, have given members useful opportunities to raise these issues.
The subject of immigration always gives rise to difficult issues. We need think only of Dungavel and dawn removals. The people of Scotland are concerned about many of these issues. The LCM falls into the same ball park. It is appropriate that the Parliament should speak out on these issues.
Robert Brown says that there are "concerns across the Parliament". In this part of the chamber, there is astonishment and dismay about the legislative consent motion that is before us. I understand that the UK Government and the main Opposition party at Westminster are beginning to obsess about "protecting our borders", out of all proportion to the extent of any problem or its impact, and I recognise that at least some of those who once competed for the crown of being "tough on crime" are now competing for the crown of being tough on foreigners.
I have not just mild concerns about, but fundamental objections to the LCM, the first of which is to the police-like powers that may be exercised by immigration officers. There are reasons why, in establishing a Scottish Parliament, we took the view that the police should be under the devolved competence of this Parliament and the Scottish Executive, as it was then. As an MSP, I do not want to control the design of the uniforms that they wear or the sign over their headquarters doors; it is the exercise of powers that is important. If the proposed powers are to be given to the self-same immigration officers who have been kicking in doors in Glasgow at 6 in the morning and dragging children from their mothers' arms, we should not just be expressing concern; we should fundamentally be saying no, that is not acceptable.
The Court of Session offers critical protection to people in the asylum system who appeal against the wrong decisions that are often taken by tribunals. How can we justify taking that critical right of appeal away from the Court of Session and out of the justice system, and giving it to the tribunal system, a system whose purpose is not to deliver justice but to say no to the maximum number of people? It is clear that the immigration tribunal system is designed for that purpose. Anyone who has witnessed its operation in Glasgow or elsewhere should share that view. It is a mockery of justice to argue that a fair appeal could be heard at that tribunal, which is the same body that made the decision in the first place.
I agree with the Scottish Refugee Council, which says:
"it is highly questionable whether this Tribunal",
which
"writes its own Rules … will in fact have the status and independence of the Court of Session and hence whether this contentious area of law will continue to receive the … scrutiny it requires."
I agree with the council, and I would go further: it would be a mockery of justice.
There are other issues in the bill, some of which are devolved and some of which are not. Some of them seem as if they should be covered by the LCM, but are not. Clause 47, for example, allows an additional condition to be imposed on those who are granted leave to remain—a condition restricting their studies in the United Kingdom. The Scottish Government has done far better than its predecessor in allowing asylum seekers and refugees who have been granted leave to remain to take up opportunities to study. Do we really want to wave our hands and say to the UK Government that it can impose restrictions on those whom we wish to welcome as valued citizens to Scotland and as valued contributors to our society, and that it can now restrict their right to study?
Should we examine the powers that have been exercised in relation to children? Do we see anything in the bill that would end the detention of children? Even the UK Government has accepted that that is clearly in breach of the United Nations Convention on the Rights of the Child. Any bill on immigration that sought to put some compassion back into the system would scrap the detention of children. But no, there is not a word in the bill to that effect.
I ask the cabinet secretary this: do his party colleagues at Westminster, including the First Minister, who represents his constituency at Westminster, intend to vote for or against the bill? If they are voting for it, what does that say about their track record in relation to asylum seekers and refugees? If they will vote against the bill, why on earth is the SNP introducing an LCM to approve parts of it for Scotland?
There have been three clear issues in the debate and there is uniformity from Mr Baker, Mr Aitken and Mr Brown about how to deal with the issues before us.
To Patrick Harvie I say that the bill is being considered at Westminster and it is for those who have been elected there to address it. As a Government, we have made our position on clause 50 quite clear and I am happy to reiterate that point.
The issue before us involves dealing with a small existing loophole. A person who is subject to a warrant and whom we do not wish to access or egress Scotland could enter or leave. The measure will give immigration officers at ports—sea or air—powers to detain such people for three hours until a police officer arrives. I make it clear to Patrick Harvie that the measure is not designated against foreigners; it is designated against anyone who is subject to a warrant. That is what matters, whether the person is a Scottish citizen seeking to leave or somebody from abroad seeking to come in.
At an airport, when a police officer is not available, it might be clear to a UK Border Agency immigration official that a person whom they think should be detained is about to enter or to leave, which is perhaps more likely. Rather than allow that person to escape without justice being served, the official will be able to detain them for three hours and hand them into the custody of a Scottish police officer. Nothing more is being asked. Nothing is being specified against anybody on the basis of their nationality or immigration status. The issue is whether somebody is subject to a warrant. If they are, and if a police officer is not present, it is appropriate that we should allow a UK Border Agency officer to detain them for a maximum of three hours, until a police officer arrives.
Will the cabinet secretary explain why he, as a Scottish National Party cabinet secretary, thinks that those functions should be under the control of a UK agency and not a Scottish one?
The functions will not be under the control of that agency, because primacy is given to the Scottish police force. The measure has the consent of the Scottish police, who see merit in it. We will allow Border Agency officials to detain somebody for a maximum of three hours if a police officer is not present. If police officers at Edinburgh or Glasgow airports are called away for some reason, rather than allow somebody to avoid justice and to endanger our communities or other communities, Border Agency officials should have the power to detain that person for three hours, and no more. Primacy will remain with the Scottish police force. That is why I welcome the support from Justice Committee members.
We acknowledge that the issues to do with the police complaints commissioner for Scotland are being addressed and we welcome the co-operation from Phil Woolas and the Home Office on that.
Will the cabinet secretary give way on that point?
Let me make progress, as I am short of time.
I turn to the final outstanding matter, which relates to clause 50 of the bill. Tribunals are a complex matter as some are entirely devolved, some are hybrids and some are entirely reserved. The Government believes that the UK Government has acted inappropriately in ignoring our and the judiciary's request to delay the process because we have an on-going review of the structure of civil courts and law in Scotland. I am more than happy to join other members in raising the issue and making it clear that we would prefer Lord Gill to be given the necessary time and space to complete his review before the clauses to do with tribunals are addressed. I ask members of other political parties to ensure that their representatives in Westminster make those points.
Will the cabinet secretary give way?
I do not have time.
I am happy to go back to the UK Government to make it clear that many members in the Parliament have expressed the view that the UK Government's attitude is not as we would wish. We cannot do anything about that.
I ask members to vote for the motion as it is not, as Mr Harvie suggested, about prejudicing anybody on the basis of their nationality; instead, it is about ensuring that people who are subject to a warrant cannot access or leave our country, thereby endangering others and fleeing justice. The motion is not about removing powers from the Scottish police; it will allow minimum detention powers to the UK Border Agency to ensure that our communities remain safer and stronger. The measure has the consent of the Scottish police force, which under no circumstances would allow another organisation to take over its role and remit.
I must suspend the sitting until 5 o'clock.
Meeting suspended.
On resuming—