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.
This article is a follow-up to our March 2021 article "No 'Border Checkpoints' within the UK" 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.
These regulations also add Manchester and Salford to the list of areas to which common travel area restrictions apply. The Regulations have been published at http://www.legislation.gov.uk/id/ssi/2021/242
The above URL links to "Scottish Statutory Instrument 2021 No. 242".
What is a Statutory Instrument?
A Scottish Statutory Instrument is according to the parliament's online guide on the matter:
"a form of law made by the Scottish Ministers (or other responsible authority such as the Lord President) on behalf of the Scottish Parliament; SSIs have the same legal status as primary legislation (Acts) but the process for making this form of law or amending it is quicker and involves less scrutiny".
In other words, when the SNP administration wants to make law without putting it before Parliament, then it passes it as a Statutory Instrument. Such Statutory Instruments (which are common at Westminster too) must be based upon "primary legislation" which has been debated and passed as an official "Act".
As we say, all Holyrood legislation related to Covid – such as these Statutory Instruments – is based upon the primary UK legislation passed at the British Parliament, called the Coronavirus Act 2020, which devolves power to "the Scottish Ministers" in certain areas.
All Covid-related laws created by the SNP administration – including all its Statutory Instruments – must fall within the limitations imposed by that primary Act.
The purpose of this Statutory Instrument No 242, referred to by Mr Swinney, is to amend a previous Holyrood Statutory Instrument, in order to add Manchester and Salford as council areas to which restrictions on travel apply.
It literally says:
Amendment to schedule 7A (restrictions on leaving or entering Scotland: common travel area)
3. In paragraph 4 of schedule 7A(1) (places in respect of which restrictions on leaving or entering Scotland apply: common travel area)…—
(a)omit sub-paragraph (a),
(b)omit sub-paragraph (b)(i),
(c)after sub-paragraph (b)(iii) insert—
"(iv)Manchester City Council,
(v)Salford City Council.".
WHAT IS SCHEDULE 7A ?
It is part of the previous Scottish Statutory Instrument referenced by Mr Swinney in his answer, called the "Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020".
The full title of Schedule 7A is "Schedule 7A Restrictions on leaving or entering Scotland: common travel area".
The paragraph "Restrictions on leaving Scotland" states that "A person who lives in Scotland must not leave Scotland for the purpose of entering or remaining in a place within the common travel area mentioned in paragraph 4."
Note the language "must not leave". It's not saying, "we suggest you don't leave". Rather, it is a command that you "must not leave". It's not asking, it's telling!
The next paragraph details "Restrictions on entering Scotland" and says that "A person who lives in a place within the common travel area mentioned in paragraph 4 must not enter or remain in Scotland."
Again, note the language, "must not enter or remain", speaking as if they have the power to lay down the law in this way! And in this case, it is people in England to whom they are trying to lay down the law!
Paragraph 3 details "Examples of reasonable excuse" which they say will enable you to travel.
Paragraph 4 details "Places in respect of which restrictions in this schedule apply".
It is into this paragraph where amendments are inserted by consequent legislation, and which now include "the areas of Manchester City Council and Salford City Council" as per the latest Statutory Instrument No. 242 to which Mr Swinney referred at the start of this article.
Paragraph 5 defines the "common travel area" as having "the meaning given in section 1(3) of the Immigration Act 1971", which is "the United Kingdom, the Channel Islands, the Isle of Man, and the Republic of Ireland".
But here is the mystery!
WHAT PRIMARY LAW ALLOWS THE SNP TO DO THIS?
What primary law allows the SNP to legislate upon, or interfere with, or restrict movement within, the "common travel area" – which is a British Parliamentary competency?
As we say, the British Parliament's "Coronavirus Act 2020", devolves powers to ministers at Holyrood, Cardiff and Stormont.
However, it does not specifically, or even impliedly, allow them to legislate upon, or interfere with, or restrict movement within, the common travel area!
It does not explicitly prohibit them from doing so. The common travel area, and restrictions or freedoms within it, is simply not mentioned at all.
So what we have here is another example of the SNP attempting to push the boundaries of the law once again.
The SNP reckons that because travel restrictions are not explicitly prohibited by the Coronavirus Act 2020, it can try it on! It can push the boundaries and wait and see what the British Government does in response!
If the British Government says and does nothing, then the precedent has been set that the SNP can now, effectively, establish a border between Scotland and England with its words...and consequently in the public imagination.
WHY IS THE BRITISH GOVERNMENT NOT SPEAKING UP?
Perhaps it is afraid that if it confronts the SNP on its behaviour then the SNP might pick a fight in the courts to "test the law". Perhaps they don't want the hassle of the SNP pretending that Westminster is "risking the lives of Scots". Perhaps they fear that would be bad politically for them?
After all, they might fear that their enemies in the media – who love everything about the lockdowns anyway – would make it a complete pantomime at their expense: "So what you're saying, Mr Johnson, is that you are happy, delighted in fact, for people to be allowed to go to Manchester and end up dying a horrible, lingering death, choking their guts out over the operating table, just because you thought the Union was more important? Is that what you want on your hands, Mr Johnson? Are you a murderer? Are you that callous?"
To be serious, though, a United Kingdom where devolved administrations can attempt to stop people travelling within the United Kingdom, and where the SNP can tell people in Manchester that they can't come to Scotland, is not a United Kingdom anymore.
A robust, pro-Union statement from the British Government on the matter is necessary. With the Manchester issue in the public consciousness, there is no better time than now!
Update on 19-10-22: No public statement, or suggestion that this was even an issue worth addressing, was ever forthcoming from the somnambulant British Government!
We summarised the above in our weekly show 'Good Morning UK. Have Your Say!' on 23-6-21 below:
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