RISHI Sunak’s Rwanda plan poses a threat to the powers of Scotland’s highest civil court and opens the UK Government up to a legal challenge from Edinburgh, ministers have been warned.
The UK Government’s new Rwanda bill seeks to circumvent the Supreme Court’s block on deporting asylum seekers to the central African nation – but could be subject to fresh legal troubles because it tramples on the authority of the Court of Session, according to SNP MP Joanna Cherry.
It was passed by a majority of 44 votes on Tuesday night after a number of Tory rebels, including former home secretary Suella Braverman, abstained in a bid to tank the bill.
During a debate on the bill on Tuesday evening the KC, who led the battle to overturn Boris Johnson’s (below) unlawful prorogation of Parliament in 2019, told MPs she was concerned the bill would affect the rights of the court.
She said the bill “arguably threatened” one of the Court of Session’s rights, which is known as the nobile officium.
It gives the court the ability to plug gaps in the law or offer mitigations if the law was seen to be too strict.
READ MORE: How did Scottish Tory MPs vote on the Rwanda Bill?
But because the Rwanda bill explicitly bars courts from considering human rights claims against deportations to the central African nation on the grounds it is “unsafe”, the Court of Session’s nobile officium – enshrined in the Act of Union – would be overridden, Cherry argued.
It raises the possibility that the Scottish Government or another interested party could challenge the bill in the Court of Session.
Speaking afterwards, Cherry said: “This bill is such an affront to the rule of law, the separation of powers and the universality of human rights, that there is already talk of a legal challenge on the grounds that the bill is unconstitutional.
“Given the issues which I raised on the floor of the house today which are peculiar to Scotland and Lord President Cooper’s dictum in the case of McCormick, against the Lord Advocate that the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scots law, I’m thinking that raising such an action in the Court of Session could explore these issues, in addition to any issues that any English courts might look at, and perhaps have a better chance of success.”
Her intervention came after it was revealed the union for Border Force guards was considering launching a legal challenge against the bill.
The Guardian reported on Tuesday the PCS union was considering taking the Government to court to argue the bill is “unconstitutional”, which it’s said would break new legal ground.
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