Criminal Justice Committee

Meeting date: Wednesday, December 21, 2022

Official Report 570KB pdf

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Northern Ireland Troubles (Legacy and Reconciliation) Bill

The next agenda item is to return to our consideration of the issue of legislative consent for the Northern Ireland Troubles (Legacy and Reconciliation) Bill following the evidence that we took from the Cabinet Secretary for Justice and Veterans. I refer members to paper 3. Members will see that the Crown Office and Procurator Fiscal Service has also provided us with its correspondence with the Northern Ireland Office.

I will open up the discussion to members. We will then consider what recommendation we want to make to the Parliament on legislative consent.

Before I comment, may I ask what we will be asked to do procedurally? That might affect what I say next, if that makes sense.

We heard from the cabinet secretary on the legislative consent memorandum, in which the Scottish Government recommends that the Scottish Parliament should not consent to the relevant provisions in the bill as set out in the draft motion. Our role today is to consider the content of the memorandum and to decide whether we agree to not consent or otherwise.

At this stage, I want to open things up to members for queries, comments or questions. I will then formally ask the question on the LCM.

In that case, I am happy to give way to other members. If possible, I would then like to come back with a summary of what I would like to say.

That is fine.

I think that we should support the position put forward by the cabinet secretary that we should not give consent. However, at the previous meeting, I got the impression that Conservative MSPs were going away to, if you like, use their connections to see whether some of the concerns could be addressed. Therefore, I will listen carefully to what is said. However, on the basis of what was said in the previous meeting, I would have thought that that should be where we are, given the gravity of the concerns that were raised.

There are two aspects to the bill. If we leave aside the constitutional question, the first issue is that the bill is, I believe, a very bad one. It shuts the door on justice for people who are looking for justice for what happened decades ago in Northern Ireland. The bill is in no one’s interest—its premise is very bad.

Constitutionally, it is a no-brainer. For example, the response from the Lord Advocate states:

“The Bill, in its current form, engages a number of areas over which I have constitutional responsibility and does so in a manner novel to Scots criminal law.”

Therefore, the bill would represent new ground and not good new ground, so I strongly recommend that we do not consent to the LCM.

Rona Mackay has just outlined part of this, but I remind members that there are two reasons why the Government does not recommend giving consent. First,

“The Government is of the view that the Bill, as currently drafted, is incompatible with the Scottish Government’s views that those who have suffered during the Troubles are able to obtain justice and that those who committed offences during that time are appropriately held to account/punished.”

Secondly,

“the Bill makes novel and unwelcome changes to the functions and responsibilities of the Lord Advocate as head of the systems of criminal prosecution and investigation of deaths in Scotland”.

Those were the two key reasons. Does anyone else want to come in?

I totally agree with Rona Mackay. I do not want to give consent for the bill to go forward.

The financial implications also stood out. They are given at between £35 million and £50 million per year. To me—

That is not the Scottish Government.

I know, but it is still the public purse. That is quite substantial, and other costs would be incurred along with that. However, yes, absolutely, at the heart of it, it is about the ability of the victims of the historical troubles in Ireland to get justice.

I agree with what has been said. There are two matters to consider. First, there is the substance of the bill itself, which does not seem to have widespread support even in Northern Ireland. I checked that after the last committee meeting. That gives me cause for concern that the subject matter is not really settled—that there is not really a consensus on it. Therefore, the undermining of the powers of this Parliament cannot really be justified, given that there is not a consensus on the essence of the bill among those who have an interest in it and who would be affected by it.

Having argued strongly for devolution even before I got here, I have always been strongly protective of the Parliament’s powers. If we were to hand over those powers for those purposes, I would want to be absolutely sure that we were doing that for reasons that I felt were correct and justified. In this case, I do not feel that way, so I will support the Government’s recommendation that we do not support the LCM.

I had not planned to speak on this item, and I will not speak just for the sake of it but, given the gravity of what we are being asked to decide today, it is important to put my views on the record. I agree completely with what my colleagues Rona Mackay, Collette Stevenson and Pauline McNeill have outlined. I just want to put that on the record.

I agree with Collette Stevenson that this is, indeed, about justice for victims, but I disagree with Rona Mackay, who is fundamentally more opposed to the bill in principle.

It is worth bearing in mind that the intent behind the bill is to achieve justice and answers for those who have spent decades not being able to get any, and it is a very sensitive and unique situation.

It is also worth bearing in mind that, when I spoke to the cabinet secretary during the evidence session, he seemed to agree with the principle of the United Kingdom-wide approach, so it would be somewhat hasty to oppose the bill, because it is more important that we seek to overcome any incompatibility or issues between the various parts of the UK.

I thank members for their contributions. I feel like I am summing up a debate, when I am not, but I have spent some time on this issue.

First, I want to make clear that whatever I say next I do not say on behalf of the UK Government, the Northern Ireland Office or any other UK minister or secretary of state. These are purely my own views and those of the party in the Scottish Parliament. Generally, our party is supportive of the concept of the establishment of the independent commission for reconciliation and information recovery. That is not to say that every aspect of the bill is perfect in its current state but, like all bills—as we know only too well—this one will go through an iterative process of scrutiny. The bill will go through the due process in Westminster, which, unlike the Scottish Parliament, also has the benefit of a second chamber.

The clue is in the name. The commission is one of reconciliation and information recovery, and I believe that those are important steps forward in the peace process. The argument that both sides of the political spectrum in Northern Ireland have some opposition to it, by its very nature, demonstrates the necessity of the bill, because truth and closure are key pillars of that process, and if the independent commission—if it is really independent—can continue some of that work, that is important.

It is a five-part bill with 58 clauses, so it is complex and, although there are some controversial elements—particularly on immunity and perhaps even the issue of prisoner release and so on—those issues have been controversial for many years, as part of the peace process.

There are positive aspects on investigation of deaths, fatal accident inquiries and so on. There are many aspects to the bill, and it is very easy to take a simplistic and one-sided view on it. I am open minded to what the bill is trying to achieve, and I feel that it is appropriate to let it make its progress.

On the specifics of what we are being asked to do in the context of legislative consent, I want to comment on three things. The Government gave three reasons for opposition rather than two, I think.

The first is around concerns that were raised by the Lord Advocate, which were duly and quite well stated. When we considered the issue previously, we did not have those concerns on paper. From looking at the correspondence from the Lord Advocate to the secretary of state in the UK Government, it is clear that those concerns are well laid out. Equally, the letter goes on to offer a pathway through the concerns.

The Lord Advocate talked about a memorandum of understanding with each of the United Kingdom prosecution authorities—in relation to referrals, for example. I do not want to put words into the Lord Advocate’s mouth, but it seems that there is a genuine and constructive willingness on her part to find a solution to any conflict that might arise between her independent role as head of public prosecutions in Scotland and interaction with the bill and the powers that Pauline McNeill spoke of.

It is not quite as simple as our handing over powers from Scotland to another jurisdiction, today. It sounds as if there is an on-going conversation to be had, and we should allow that to progress. I note that it is naturally disappointing that we have not had a response to those concerns, and I hope that we will have sight of that when it is made available.

The second point is about compliance with the European convention on human rights and the potential legal implications of the bill for human rights law. I questioned that in the evidence session with the cabinet secretary, and I felt like he gave more of an opinion than anything else. The cabinet secretary was unable to point us in the direction of any specific published reviews or advice on that. It seems to be something of a smokescreen.

11:30  

The third point—this is probably the one that worries me most—is the political disagreement on the bill. The Government’s primary reason for not offering legislative consent is that it believes that, as drafted, the bill is incompatible with the Scottish Government’s view that those who suffered during the troubles should be able to obtain justice. That sounds more like a difference of opinion on policy rather than one based on legality.

That is, of course, based on the bill as drafted. The bill will go through a process and I expect all parties, including members who represent the Scottish Government’s party in the UK Parliament, to conduct that process properly. We put our trust in them to do that.

For that reason, our view is that we should offer legislative consent, let the bill run its course, and work through the many issues that I have mentioned. Holding it back at this stage would be unhelpful. We therefore do not agree with any recommendation to withhold consent.

Thank you, members—that has been helpful.

I will add a few personal comments. Jamie Greene talked about the correspondence between the Lord Advocate and the secretary of state. The Lord Advocate’s most recent correspondence was on 10 October, when she wrote to the new Northern Ireland secretary and outlined suggestions on the bill. As far as I am aware, the Lord Advocate has not had any response to that. On that note, the bill is nearly complete and through its journey, so I am concerned that nothing has come back from the UK Government in response to the Lord Advocate’s correspondence.

Secondly, I want to point out some comments from the Council of Europe Commissioner for Human Rights that the bill runs the risk of being found to be non-compliant with human rights. Indeed, the Northern Ireland Human Rights Commission also expressed grave concerns about the bill and its incompatibility with the Good Friday agreement. The cabinet secretary alluded to that in his statement when he joined us a couple of weeks ago.

Finally, I am uncomfortable with the notion that the ICRIR would have a role in Scotland that could impact on people’s access to justice, whatever that might be. I am also uncomfortable with the notion that the role and function of the Lord Advocate could be affected.

Does the committee agree with the Scottish Government that the Scottish Parliament should not consent to the relevant provisions in the bill as they have been set out in the Scottish Government’s draft motion?

It is probably best to go round the table and let members indicate their position.

For

Clark, Katy (West Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Nicoll, Audrey (Aberdeen South and North Kincardine) (SNP)
Stevenson, Collette (East Kilbride) (SNP)

Against

Findlay, Russell (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)

We will compile a report and present it to Parliament.

I would like to make a small request of the clerks. These LCMs are often waved through quite easily. I presume that the issue will come to a vote in plenary at some point, and it would be nice to know when that is coming up so that we can keep an eye out for it.

That is correct, Mr Greene. It will come before the Parliament and it will be up to the Parliament to decide. There might be a vote, if necessary. As soon as we have information on the timing of that, we will let the committee know as far in advance as we can.

Are members content to delegate to me the publication of the report that summarises the outcome of our deliberations on the LCM?

Members indicated agreement.

The issue will now be sent to the chamber for all members to decide, based on our report.

That completes our final business for the year.

I take this opportunity to wish all members, our clerks and other staff all the very best for the festive season. I hope that you all have a happy and peaceful Christmas and new year.

I also thank all the witnesses who have given formal and informal evidence to the committee this year. It is greatly appreciated.

I now move the meeting into private.

11:36 Meeting continued in private until 11:46.