I certainly will not be supporting the other notwithstanding clauses in the Bill, but I felt that it was perhaps time that we had one that benefited Scotland for a change.
My amendments are designed to protect Scotland’s courts and constitutional tradition. They are there to ensure that asylum seekers in Scotland might still enjoy the protection of the courts from the infringement of their fundamental rights. That is what people in Scotland want, and it has been expressed repeatedly through the Scottish Parliament. I am, of course, a Scottish MP and a member of the Scottish Bar, and I am here to do what I can to protect Scotland and its legal system from the extraordinary attack on human rights and the rule of law that this Bill constitutes.
However, I am not a Scottish exceptionalist. I recognise that—as reflected in the House of Commons Library’s excellent legal briefing on the Bill, and indeed in the speech that preceded mine, by the right hon. and learned Member for Kenilworth and Southam—concerns about the impact of the Bill on the rule of law and the constitution are shared by many in England, including many lawyers. For every lawyer cited by Conservative Members in favour of the Bill and the draconian amendments to it, they will find two lawyers who disagree.
The Library briefing, which is an excellent summary of the different legal views on the Bill, concludes:
“Tension between the sovereignty of Parliament to legislate, and the role of the courts in enforcing the rule of law principle that executive bodies must exercise their powers within their
statutory limits, may be tempered by restraint on both sides. If either the courts or Parliament ceased to exercise such restraint, significant constitutional uncertainty could result.”
I believe that if we pass the Bill, this Parliament will have ceased to exercise the restraint referred to there—it would be a major departure from such restraint. I predict that, if the Bill passes, we will see what might be an unprecedented constitutional challenge to an Act of the British Parliament.