Meeting of the Parliament

Meeting date: Wednesday, June 28, 2023

Official Report 1008KB pdf

---

Northern Ireland Troubles (Legacy and Reconciliation) Bill

The next item of business is a debate on motion S6M-09722, in the name of Angela Constance, on the Northern Ireland Troubles (Legacy and Reconciliation) Bill, which is United Kingdom legislation. I invite members who wish to participate to press their request-to-speak button now or as soon as possible. I invite Angela Constance to speak to and move the motion for around eight minutes.

15:17  

This is an opportunity for the Parliament to consider a supplementary legislative consent motion on the UK Government’s Northern Ireland Troubles (Legacy and Reconciliation) Bill.

The UK Government first introduced the bill on 17 May 2022, saying that its proposals were to implement a range of measures that sought to address the legacy of the Northern Ireland troubles. The bill includes provisions to establish a new independent body—the independent commission for reconciliation and information recovery—limit criminal investigations, legal proceedings, inquests and police complaints; extend the prisoner release scheme in the Northern Ireland (Sentences) Act 1998; and provide for experiences to be recorded and preserved and for events to be studied and memorialised.

After consideration of the bill, the Scottish Government concluded that a legislative consent memorandum should be lodged in the Scottish Parliament due to the impact that the bill would have on devolved areas of competence, with the recommendation that consent be refused.

The cabinet secretary has outlined the principles of the bill. What conversations did the Scottish Government manage to have with those on the ground in Northern Ireland about their views of the bill and how they think that it will affect things on the ground there?

I am aware that the bill has been opposed by every political party in Northern Ireland, including the Democratic Unionist Party, and key stakeholders such as Amnesty International, Relatives for Justice and WAVE—Widows Against Violence Empower—Trauma Centre, the latter being the largest cross-community victim group in Northern Ireland.

The Scottish Government advised the Scottish Parliament to refuse consent on the bill on 20 October 2022 when the first legislative consent memorandum was lodged. The majority of the Criminal Justice Committee voted to support that position when the committee published its first report on the bill on 10 January 2023, with two members voting against the Scottish Government’s recommendation.

Since then, the UK Government has proposed further amendments to the bill, the most recent of which it published and provided in full to the Scottish Government only on 8 June. We have considered those new amendments, and it is the position of the Scottish Government—which includes the Lord Advocate and the Solicitor General for Scotland—that the recent amendments do not resolve the concerns that resulted in the recommendation that the Parliament should not pass a legislative consent motion on the bill.

In its current form, despite the amendments that were tabled by the UK Government, the bill still gives rise to three key areas of concern for the Scottish Government, of which I apprised the Criminal Justice Committee on 21 June. First, it will limit the ability of victims of the troubles to seek justice through Scottish courts if required. Secondly, it does not respect devolution and provides power to the Secretary of State for Northern Ireland to amend devolved legislation without first discussing the matter with, or obtaining consent from, this Parliament. Thirdly, it has the potential to impact on the powers of the Lord Advocate as independent head of the systems of criminal prosecution and the investigation of deaths in Scotland. The Criminal Justice Committee published its final report on the bill on 23 June, with no members voting against the Scottish Government’s recommendation to withhold consent.

In its current form, the bill still allows the granting of immunity to people who apply for it, even though they might have committed serious offences during the troubles. In effect, it could mean an amnesty for those who have committed offences such as murder or crimes involving abuse and torture, including crimes that were conducted by agents of the state. The amendments will not increase the opportunity for people who have been directly affected by the troubles and are seeking justice to obtain justice or ensure that people who committed offences during the troubles are appropriately held to account.

In its current form, the bill provides the Secretary of State for Northern Ireland with the ability to amend devolved legislation without having to make the Scottish Government aware of that, let alone seek the Scottish Parliament’s agreement to do so. If the UK Government respects devolution, it should not exercise powers within the legislative competence of the Scottish Parliament unless doing so is specifically agreed.

Even with the concessions that have been made by the UK Government, the bill continues to encroach on the role of the Lord Advocate as the independent head of the systems of criminal prosecution and the investigation of deaths in Scotland. The principle that the Lord Advocate takes decisions in their capacity as head of the systems of prosecution and the investigation of deaths independently of any other body predates devolution and is protected by section 48(5) of the Scotland Act 1998. The power to grant immunity that is proposed for the independent commission that will be created by the UK Government’s bill potentially undermines that principle by adversely impacting on the Lord Advocate’s ability to take decisions on whether to commence prosecutions.

As I laid out to the Criminal Justice Committee last week, under previous iterations of the bill, it was the case that, even when immunity was not granted, the Lord Advocate would not be able to commence a prosecution unless and until the commission decided to formally refer the cases to the Lord Advocate’s office. Therefore, I welcome the amendment that has been proposed by the UK Government, which will mean that the Lord Advocate can direct the commission to refer such a case to the Lord Advocate’s office when it is considered appropriate. I understand that the Solicitor General met Lord Caine to discuss that amendment. However, as I already stated to the Criminal Justice Committee, at the heart of the bill is the power given to the commission to grant immunity from prosecution for the most serious of offences.

In Scotland, we would expect the power to make decisions on which individuals should be prosecuted to be exercised by the Lord Advocate acting independently in the public interest. Despite the recent amendments to the bill, the commission’s power to grant immunity still has the potential to cut across the independent decision making of the Lord Advocate. In effect, the commission, and not the Lord Advocate, will have the discretion to decide whether a prosecution can be raised. The Scottish Government does not think that it is wise or appropriate for the UK Government to alter the Lord Advocate’s constitutional position in that way and, in my view, it is not something that the Scottish Parliament should consent to.

The Scottish Government has a responsibility to review UK Government legislation that will impact on the devolved powers of this Parliament and to review any amendments that are made to it. We have done so, and it is our recommendation that the Parliament maintains its position of withholding legislative consent to the amended Northern Ireland Troubles (Legacy and Reconciliation) Bill. Therefore, I urge all members to support that position, which is backed by the Scottish Parliament’s Criminal Justice Committee.

I move,

That the Parliament agrees with the recommendation in the Scottish Government’s supplementary legislative consent memorandum to withhold consent for the UK Government’s Northern Ireland Troubles (Legacy and Reconciliation) Bill.

15:25  

I grew up with the troubles on my television screen. For families in Northern Ireland, it was their lives. Today, it can be easy for us to forget the daily backdrop of terror, devastation and death. I commend the recent five-part BBC documentary, “Once Upon a Time in Northern Ireland”, which expertly tells the stories of some of those people who suffered and also of some of those who inflicted the suffering. The series is a timely reminder that, for many individuals and families, memories remain fresh and losses remain raw.

The legislative consent motion before us today relates to an independent commission for reconciliation and information recovery, which will investigate deaths and serious injuries relating to the troubles. Individuals who were involved in the troubles will be able to come forward and be provided with immunity—under certain strictly defined conditions—if they provide information relating to an event that took place that led to death or serious injury. That could be information that would help to identify the location of remains of people who were taken away to be tortured and executed by terrorists, or it could be knowledge that is harboured about one of the many bomb plots that claimed the lives of civilians or military personnel.

We all need to be very careful in how we talk about and consider this issue. I want to make the following point.

On 20 July 1982, four soldiers from my regiment who were riding horses down the south carriageway at Hyde park were blown up by a man who had planted a bomb surrounded by nails in a car next to their route. Mr Downey was accused and found guilty of that but has never been brought to justice, because he has a way of avoiding it.

At the same time, just two years ago, one of my colleagues, Dennis Hutchings, was charged in Northern Ireland for murder—in 1974, he shot somebody. The argument about whether that is correct is neither here nor there. He was dragged to Northern Ireland, where he was prosecuted. He subsequently died during the trial.

I put to Russell Findlay a question that I would like the Government to reflect on: will the commission bring peace to those people who are left behind? We need to do that.

I thank Edward Mountain for his intervention. I know that, as a former soldier, he knows more than most the extent of the troubles and the horrors that they involved.

That is indeed the sentiment behind the Northern Ireland Troubles (Legacy and Reconciliation) Bill. It is about truth, reconciliation and closure for families who remain badly affected. It is modelled on the truth and reconciliation approach that has worked very successfully in post-apartheid South Africa, albeit under different circumstances. It is a sensible bill with a legitimate aim and, crucially, it takes a consistent approach across the United Kingdom.

That is why I find it concerning that the Scottish National Party Government is seeking to interfere on an issue that primarily, if not exclusively, affects Northern Ireland. There would be an outcry from the SNP if, for example, Stormont decided to deny consent to a bill that had been produced here at Holyrood that was about Scotland. Northern Ireland’s history is unique, and it should not be used for political purposes. It should certainly not be exploited to create any kind of constitutional grievance.

I do not know whether Russell Findlay heard what the cabinet secretary said, but all the parties in Northern Ireland believe that the bill undermines the rights of victims to seek redress. It also undermines devolution and, crucially—this is the first time that I can remember this happening—it undermines the independent role of the Lord Advocate. Does none of that concern Mr Findlay?

There are many views about the legislation in Northern Ireland and across the United Kingdom, but it is vitally important that a UK-wide approach is taken. Thousands of lives were lost during the troubles and thousands more were damaged due to the crushing impacts of the violence, and everybody wants to move on from that time. The Northern Ireland of today is nothing like the Northern Ireland of the 1970s, 1980s or 1990s. Quite why we would want to get involved in what is, really, an internal issue for the people of Northern Ireland is beyond me, and it would be wrong if this were simply another chance to pick a fight with the UK Government. The bill would play an important role in helping Northern Ireland to further consign the violence of the past to the history books.

The UK Government has addressed some of the concerns that were raised by the Lord Advocate, and it is clear that it is willing to continue to address outstanding concerns. When I questioned the cabinet secretary about the concerns, it transpired that there are no live troubles-related police investigations in Scotland and there do not appear to be any troubles-related prisoners in Scotland. It is therefore a largely theoretical question. There appears to be a slim chance of the commission’s work impinging on Scotland, but while there remains any chance, I believe that we should support the bill. Today, we will vote against the Scottish Government’s LCM.

15:31  

The Northern Ireland Troubles (Legacy and Reconciliation) Bill proposes an effective amnesty from prosecution for troubles-related offences in exchange for co-operation with a truth retrieval body. The bill would halt future civil cases and inquests linked to killings that took place during the conflict, and it would establish a new independent commission for reconciliation and information recovery, which would be responsible for reviewing deaths and other harmful conduct forming part of the troubles and publishing its findings.

The bill would seemingly effectively draw a line under offences in the troubles era across the UK by ensuring that long-running cases that have not been resolved are closed and closing avenues for justice in cases that did not involve death or serious injury. However, importantly, as Keith Brown said, that view is not shared by virtually any of the political parties and victims groups across the island of Ireland, north and south, which have slammed the substance of the bill. The Democratic Unionist Party is against it. In fact, one of the few issues that all sides of the political debate in Northern Ireland seem to agree on is that the proposal should not proceed. I agree with Edward Mountain that there are great sensitivities among the people of Northern Ireland about their history, but it is for that reason that we must recognise that the proposal does not have the people’s consent.

On top of strong opposition in the north, the Republic of Ireland Government is also against the bill. In a press release, Irish foreign and defence minister Micheál Martin urged that the bill be paused, because it would potentially set back peace in Northern Ireland.

The families of victims of the troubles have also expressed deep concerns about the bill. Some have said that it is

“designed to cause pain and hurt to families seeking the truth about what happened to their loved ones.”

The Council of Europe warned that the bill will diminish rights and accountability in a country that has seen precious little of either. The Council of Europe Commissioner for Human Rights, Dunja Mijatovic, stated that she has

“repeatedly warned”

Westminster

“that the Bill would undermine the human rights of victims, as well as truth seeking, reconciliation and justice efforts.”

Because of such opposition, I worry deeply that the bill, which is opposed by all political parties in Northern Ireland and by victims and survivors of the troubles across nationalist and unionist communities, will be a setback for Northern Ireland.

The bill threatens to undermine the powers of the Lord Advocate—or it did. I heard the cabinet secretary say that there has been a last-minute change regarding the Lord Advocate’s powers. That is to be welcomed, although I would have preferred to have seen it a bit earlier, because the Criminal Justice Committee has scrutinised the bill over a large number of weeks and has made the point that a major objection to it concerns the removal of powers from the Lord Advocate.

I had the privilege of representing Scottish Labour on the British-Irish Parliamentary Assembly, which includes all political parties. This year, the British-Irish Parliamentary Assembly marked the 25 years since the Good Friday agreement, which largely ended bloodshed that left 3,600 people dead. I had the privilege of listening to former Taoiseach Bertie Ahern, former senator George Mitchell, and former civil servants, who spoke of the incredible coming together of people to ensure the Good Friday agreement.

I am grateful to Pauline McNeill for giving way. She knows of my deep personal interest in the issue—indeed, she will note that I had the great honour of hosting in this Parliament three people who were deeply involved with the architecture of the Good Friday agreement, as we marked 25 years of the agreement. As we have heard, they were clear that the bill will not work in achieving the consensus on reconciliation that is required, and that it does not have the support of the people of Northern Ireland. Crucially, it is relevant to people in Scotland because of the strong diaspora links between Scotland and Northern Ireland. Would the member agree that we have to respect the people of Northern Ireland on this matter?

I can give you the time back, Ms McNeill.

I agree whole-heartedly with Paul O’Kane that, although the substance of the debate is about whether we give legislative consent to the bill because it cuts across devolved powers, it is also important to acknowledge that it does not have the political support of organisations and parties in Northern Ireland.

Britain’s exit from the European Union has further complicated the peace process, creating political tensions that have rattled the foundations of the Good Friday agreement. As of today, Northern Ireland has been without a sitting Assembly for nearly a year and a half. If the bill is passed, it threatens to further drive a wedge between all political parties in Northern Ireland. I, for one, think that we have a duty, as MSPs of a devolved Parliament, to collectively oppose anything that threatens the Northern Ireland peace process.

As I said earlier, I welcome the late change to the bill in relation to the Lord Advocate’s powers. However, the proposals do not, in principle, have the consent of the community. For those reasons, we will absolutely support the Government on the legislative consent motion and ask the Parliament not to recommend support for it this evening.

I call the cabinet secretary to wind up the debate, for around five minutes.

15:36  

The Government recognises the great sensitivity of the matters that we are discussing today, and it has proceeded on that basis at all times. In essence, the proposed amendments from the UK Government have not gone far enough to remedy the issues that were raised by the Scottish Government and its committees when it was initially recommended, in October 2022, that the Scottish Parliament should not pass the legislative consent motion on the bill.

The amendments that the UK Government tabled on 8 June, although they are welcome, do not alleviate the three major concerns that we have about the bill. The Scottish Government cannot support a bill that reduces or eliminates the ability of victims of crime to seek justice through our court system, and that position is backed by the Scottish Parliament’s Criminal Justice Committee.

We should not forget that the bill will provide the commission with the power to grant immunity from prosecution for some of the most serious offences, including abuse, torture and murder. The decision on whether to prosecute someone for those offences should remain with the Lord Advocate, and to remove the decision-making process from that office and place it with another body—

Will the cabinet secretary give way?

No, thank you.

In our view, that has the potential to adversely impact the long-standing position of the Lord Advocate.

The bill—

Will the cabinet secretary give way?

No, I will not, Mr Mountain.

Okay—yes, I will.

I am very grateful. Some people who have already been prosecuted have got letters, known as “on the run” letters, from a previous UK Government, which allow them to avoid prosecution, so that already happens. Does the cabinet secretary think that that is right? Doing what she is doing and preventing the bill from going forward will not aid in resolving the problems that those letters have produced.

Mr Mountain, I am trying very hard not to have a politicised debate, given the matters that we are discussing. I am aware of the sensitivity of the issues for many members across the political divide, but I have a duty, as a member of this Parliament, to point out issues regarding access to justice for people who reside in Scotland and who may wish to pursue civil or criminal action in Scotland. I have a duty to stand up to any legislation, irrespective of its purpose, if it interferes with the long-standing constitutional right of the Lord Advocate.

I will go on to reflect on some of the most sensitive matters, and on what we understand of the views of the political groups and community groups of interest in Northern Ireland.

The decision on whether to prosecute someone for those offences should always remain with the Lord Advocate. To remove the decision-making process from that office and place it with another body has the potential, in our view, to adversely impact the long-standing position of the Lord Advocate. It is also our view that the bill will not make it easier for victims who suffered during the troubles to obtain justice.

It is not only the Scottish Government that has serious concerns over the bill, which has been reflected on in the debate. There has been widespread opposition to the bill. As I said to Maggie Chapman, all the political parties in Northern Ireland oppose the bill, as do key stakeholders such as Amnesty International. Many victims groups have raised serious concerns about the bill and its ability to help deliver justice and reconciliation, including the Widows Against Violence Empower trauma centre, which is the largest cross-community victims group in Northern Ireland.

Amnesty International conducted polling to gauge opinion about the bill and released results showing that 87 per cent of UK adults thought that people should still be prosecuted for serious crimes such as murder even if they were committed decades ago. Grainne Teggart, Amnesty International UK’s Northern Ireland deputy director, has said that the UK Government’s plans for the bill are

“an affront to decency, human rights and the rule of law and must be scrapped.”

In addition, Mark Thompson, chief executive of Belfast-based Relatives for Justice has said that the bill is

“anti-rule of law, anti-victim, anti-Good Friday Agreement, anti-international human rights law.”

He went further and said:

“It denies the right to a basic investigation and truth and accountability”.

We have heard that the DUP strongly opposed the introduction of the bill, and Sir Jeffrey Donaldson wrote to the Prime Minister urging him to scrap the bill. Sir Jeffrey Donaldson said:

“Reconciliation will not be achieved by sacrificing justice. Access to justice must be preserved”.

Micheál Martin, the Minister for Foreign Affairs and Minister for Defence in the Irish Government has said that he is deeply worried that

“the enactment of this bill, opposed by all political parties in Northern Ireland, and by victims and survivors of the Troubles across communities, will set back the essential work of reconciliation”.

Presiding Officer, although I note the opposition to the bill, as a Government minister, it is for the reasons that I have already outlined that I urge all members of the Parliament to support the Scottish Government’s recommendation that the Scottish Parliament does not pass a legislative consent motion in relation to the UK Government’s Northern Ireland Troubles (Legacy and Reconciliation) Bill.