A Force For Good Director, Alistair McConnachie (who has a degree in Scots Law) explains that Nicola Sturgeon and the SNP administration has no legal right to restrict travel within the UK. Railway poster available for purchase here.
Nicola Sturgeon has made a law which says we "must not leave" Scotland for "the area of Manchester City Council" unless we have "a reasonable excuse".
It seems crazy, because it is!
In this article, we look at where she supposedly acquires the legal right to restrict travel, and we consider why the British Government won't clarify the matter.
We conclude that she has no legal right to restrict travel because nothing in the primary legislation – the Coronavirus Act 2020 – gives her the right to legislate upon travel within "the Common Travel Area" of the United Kingdom.
WHAT GIVES AUTHORITY TO A LAW?
For a law to have authority, it has to be derived from the commonly-accepted legal process of the country.
There has to be a basis for it in the existing law, in the sense that it can't just be created out of thin air because you wish for it to be so. (Some people do indeed want to create new laws out of nothing, but that is called "a revolution".)
In Scotland, Holyrood laws derive their authority from the fact that the British Parliament established Holyrood as one of its devolved arms. The British Parliamentary legal process gives legal power to the Scottish Parliament to establish laws within a set of boundaries laid out in the devolved legislation produced by the central British Parliament.
Of course, Holyrood doesn't have full legal power in several areas. That's why some people want Scotland to be "independent" so that it might be the font of all laws in Scotland.
DEVOLVING THE COVID LAWS
When the Covid crisis hit, the British Parliament decided to devolve the response to the Scottish Parliament and the Welsh and Northern Irish assemblies.
It created the Coronavirus Act 2020 which can be read here.
Specifically, the Coronavirus Act 2020 devolves power over certain areas to "the Scottish Ministers" and the other devolved assemblies. This means that Holyrood can make laws on many issues which pertain to the Covid response, but it cannot make laws without regard to the limitations set by the Coronavirus Act 2020.
If that Act does not enable it to make laws in certain areas then it cannot make laws in those areas.
It cannot just make up any laws to please itself! It is legally constrained within the boundaries set by that Act. To make-up laws outside these areas means that such laws have no legal standing within the United Kingdom.
It is worth saying again. Covid-related laws made-up outside of the limitations of the Coronavirus Act 2020 have no legal standing!
The SNP knows this, but it also knows that the British Government has proven reluctant to challenge its behaviour, for various political reasons.
After all, challenges to the behaviour of the SNP might end up in court, and create high-profile legal fights. They might create a political scene which the British Government perhaps would rather avoid.
This is a pity, because robustly defending the principles which hold the United Kingdom together is always essential.
The latest attempt by Ms Sturgeon to restrict travel to the Manchester area has created an unusual situation for her because, for the first time in a long time, a public figure from England – the Manchester Mayor – has disagreed with her.
So this is a moment which the British Government could seize to point out that she has no legal standing to do what she is doing. They could point out that she's trying to give the false impression that she has power to determine a border between Scotland and England.
(In this regard, it is no wonder that Police Scotland has stated: "The Chief Constable has said publicly on numerous occasions that we will not be routinely stopping vehicles or setting up road blocks, and that will not change.")
STATUTORY INSTRUMENTS, AND ALL THAT
Where are the travel restrictions written down in black and white?
On Thursday 17 June 2021, SNP MSP John Swinney answered a question in Holyrood regarding the latest updates on COVID-19 legislation.
You can see his answer here.
To quote his answer in full:
Amending Regulations were made to the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 today.
These Regulations amend the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 to remove the Republic of Ireland and the area of Bedford Borough Council from the list of areas to which the common travel area restrictions apply.