Criminal Justice Committee

Meeting date: Wednesday, June 21, 2023

Official Report 572KB pdf

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Northern Ireland Troubles (Legacy and Reconciliation) Bill

Good morning, and welcome to the 19th meeting in 2023 of the Criminal Justice Committee. We have no apologies, and Fulton MacGregor joins us online.

Our first item of business is consideration of a supplementary legislative consent memorandum on the Northern Ireland Troubles (Legacy and Reconciliation) Bill. I am pleased to welcome to the meeting the Cabinet Secretary for Justice and Home Affairs, Angela Constance, and her officials Clare McKinlay, who is a solicitor in the Scottish Government’s legal directorate, and Michael Halpin, who is defence policy manager in the directorate for safer communities.

I refer members to paper 1. I invite the cabinet secretary to make some opening remarks on the supplementary LCM, after which we will move to questions.

Thank you, convener, and good morning.

The United Kingdom Government’s Northern Ireland Troubles (Legacy and Reconciliation) Bill and the subsequent LCM were refused consent when they first came to the Scottish Parliament, in October 2022. The UK Government has now proposed amendments to the bill, which we received in full only on 8 June. We do not consider that the amendments satisfy the concerns that resulted in the previous LCM being refused consent by the Parliament.

In its current form, the bill still allows for the granting of immunity to people who apply for it, even though they might have committed serious offences during the troubles. In effect, the bill potentially means an amnesty for those who have committed offences such as murder or crimes involving abuse or torture, including where those crimes were conducted by agents of the state. Therefore, the Scottish Government recommends that the Parliament maintain its position of withholding consent to the amended bill.

Our reasons for doing so focus on three key areas: the ability of victims to seek justice; the Secretary of State for Northern Ireland’s powers to amend devolved legislation; and the impact on the Lord Advocate’s responsibilities.

First, we do not believe that the amendments to the bill will increase the opportunity for those families and communities who have been directly affected by the troubles and are seeking justice to obtain justice or that they will ensure that those who committed offences during the troubles are appropriately held to account. We are cognisant of the fact that it is not only the Scottish Government that has concerns in that regard; indeed, the bill was opposed by all parties in Northern Ireland. In addition, the UK Parliament’s own Joint Committee on Human Rights has previously raised doubts on the bill and its compatibility with the European convention on human rights. Further, the Northern Ireland office of Amnesty International UK has accused the UK Government of treating victims with “contempt” and has stated that the amendments

“do nothing to address the fundamental flaws with the bill.”

Secondly, 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 is to respect devolution, it should not exercise powers within the devolved competence of the Scottish Parliament and Scottish ministers unless doing so is specifically agreed.

Finally, we are concerned that the bill, even with its amendments, continues to encroach on the role of the Lord Advocate as the independent head of the systems of criminal prosecution and investigation of deaths in Scotland. The Lord Advocate’s independence predates devolution and is protected by section 48(5) of the Scotland Act 1998. However, some of the powers that are proposed for the independent commission that will be created by the bill undermine that independence and breach a fundamental cornerstone of our criminal justice system.

In previous iterations of the bill, it was the case that, even when immunity was not granted, the Lord Advocate could be impeded by the commission refusing to refer appropriate cases to the Lord Advocate’s office. I therefore welcome the amendment that is proposed by the UK Government that means that the Lord Advocate will now be able to direct the commission to refer such a case to the Lord Advocate’s office.

However, as I have previously mentioned, the commission is also given powers to grant immunity from prosecution for the most serious of offences. In practice, that interferes with the independent decision making of the Lord Advocate in such cases, effectively making the Lord Advocate’s decision on whether to be able to prosecute subject to the decision of another person. The bill continues to cut across the Lord Advocate’s role. In effect, it is the commission, not the Lord Advocate, that will decide whether a prosecution can be raised.

It is for those reasons—our concerns about the effect that the bill will have on those who have suffered and the lack of regard for the role of the Lord Advocate and the protections that are enshrined in the Scotland Act 1998—that the Scottish Government cannot recommend consent to the bill in its present form.

We move straight to questions from members, starting with Jamie Greene.

Good morning, cabinet secretary and officials. I have a few questions that follow on from the cabinet secretary’s opening remarks, the first of which is an overarching question on the Scottish Government’s position on the concept of the bill and what it is trying to achieve.

I appreciate that the Scottish Government has questions on technical issues with regard to the role of the Lord Advocate, and perhaps it has further questions on the potential implications of the human rights aspects of granting immunity. However, fundamentally, from a policy point of view, what problem does the Scottish Government have with the concept of immunity from prosecution in return for information, for example, or with the concept of amnesty in general in Northern Ireland? What is its major substantive problem with that?

Convener, I am not gonnae breenge into Northern Irish affairs. With respect to—

But this is not about Northern Ireland.

Yes, but it is a UK Government bill, so it is my job to point out where it has implications for our devolved responsibilities in Scotland. Issues in and around immunity, so far as they impact on Scotland, would be for the Lord Advocate. Access to justice issues would be a matter for our courts.

I am cognisant of the fact that all political parties in Northern Ireland have raised concerns about the bill, but it is my duty to be clear to the Parliament about my objections in terms of the matters in and around the LCM and the fact that the bill continues to cut across the powers of the Lord Advocate. That is a cornerstone—it is not a technical matter but a fundamental cornerstone—of how our criminal justice system works and of how deaths are investigated in Scotland. As members would expect, the Scottish Government has strong views on the ability of the Secretary of State for Northern Ireland to not even inform, never mind not consult, us if he steps into devolved areas. These are more than technical matters; they are fundamental.

Okay. I say respectfully that the question was about one of the three pillars that you laid out regarding your rationale for opposition to granting consent. One of those pillars was to do with the concept of whether immunity should be granted in certain scenarios, which is a philosophical question. Does the cabinet secretary not agree that that might be a useful tool for the new commission to have in the box to maintain on-going peace? It is quite a well-established protocol; the Good Friday agreement itself was, in effect, one great amnesty for people on many sides of the troubles. Therefore, it would be a continuation of that. I am still struggling to understand what the political opposition to it is.

The political opposition is as I clearly laid out in my statement. Maintaining peace in Northern Ireland is of paramount importance to everyone. I refer Jamie Greene to the views of all political parties in Northern Ireland, which, of course, take precedence over my views in this instance.

On the issue of the Lord Advocate’s functions, what correspondence exists between the Scottish Government or the cabinet secretary and the Lord Advocate? As a committee, we have not seen any letters from the Lord Advocate explaining her position on the matter. Obviously, I take your word for it that the Government believes that there are issues, but what does the Lord Advocate herself say about it? Would you be willing to publish any such correspondence?

I would have to seek advice on that. There has certainly been correspondence between the two Governments and between the Lord Advocate and the UK Government.

On an alignment of views, as I said in my opening remarks, we welcome the movement that has been made by the UK Government to reduce the impact on the Lord Advocate’s discretion and powers. Nonetheless, the commission still has the ability to grant immunity, which fundamentally cuts across the Lord Advocate’s powers.

Irrespective of what the committee discusses, the issue will probably come back to the Parliament—I believe that a debate on it is scheduled for next week. Perhaps it would be helpful if the Lord Advocate were to write to the committee or the cabinet secretary on her current position, given that any previous correspondence that is in the public domain will be from before the UK Government’s amendments were tabled. I would be keen to see whether it remains the Lord Advocate’s position that she has a problem with the bill. That might make it easier for the Parliament to make a decision on the LCM. At the moment, we are hearing third-hand information through the Government rather than information directly from the Lord Advocate.

I suppose that I would take issue with what might be inferred to be a slight on the accuracy of the Government’s reporting. Nonetheless, what the Lord Advocate communicates to the Parliament is, of course, a matter for her. I will certainly ensure that the request for further information is communicated.

Thank you.

Another couple of members want to come in.

When was the last troubles-related police investigation in Scotland?

I do not know the answer to that. Officials will keep me right, but you will understand that I would not comment on any live investigations, if there were any.

I imagine that they are pretty rare, if there have been any at all in recent years. Could we perhaps come back to that?

It is not something that I have information on today. We can look into it, but there are certainly no live cases currently going on.

What I can say, if it is helpful, convener, is that we understand that there are no live cases.

It might also be useful to know whether there is data available on recent years.

One thing that the commission seeks to be able to do is release prisoners early as part of the immunity and reconciliation process. How many troubles-related prisoners are there in Scotland just now?

I do not know. I would have to go and check that information. If Mr Findlay wants a bit of an overview of how the bill will impact on issues such as prisoners and prisoner transfer, I could ask Ms McKinlay to provide that.

I think that the submission explains how it might work in Scotland.

Okay—that is fine.

I just wanted to know what the bill will mean practically, in terms of numbers, and whether the impact is more theoretical, as I suspect, or whether there is a likelihood of it coming into play here.

I do not have that data to hand, and I would have to check whether it exists and is available.

Sure.

I want to go back to the point that Jamie Greene raised about the Lord Advocate. She wrote to the UK Government and it made some movement with regard to amendments, but we do not know what, specifically, that movement was. Jamie rightly asked for that information to be provided. Is the Lord Advocate satisfied with the UK Government’s response? Is the decision a ministerial decision as opposed to the Lord Advocate’s decision?

09:45  

It is a Government decision, and the Lord Advocate is a minister of the Government.

So, there is full agreement with her.

The matter relates to the impact on the Lord Advocate’s powers, and I would not take issue with the Lord Advocate on that, if I can put it that way.

Let me answer the question about the change as a result of the amendment. The amendment that the UK Government has made—which is welcome but does not go far enough—will mean that, once the commission has decided that someone will not be granted immunity, the Lord Advocate could request that the case be referred to her, but the outstanding issue is that it continues to be the case that the commission will make decisions about immunity in the first instance, so it will pre-empt the Lord Advocate.

I understand. However, given that the issue is fundamentally about the Lord Advocate’s independence to operate in Scotland and to make decisions as he or she sees fit, I am curious to know whether the Lord Advocate remains dissatisfied with the UK Government’s position.

Yes, she does.

The submission refers to the need for people who have committed offences during the troubles to be “punished”. That is not a word that we often hear from the SNP Government in relation to crime. The new commission will seek to persuade people to engage truthfully so that answers can be provided honestly, closure can be given to families and so on. Do you not think that one of the potential consequences of not consenting to the LCM is that, without a UK-wide approach, there will be a fractured approach that could lead to people not getting the closure and the answers that they need?

We all appreciate the intent, but the issue is about how things operate in practice.

I point Mr Findlay to the fact that the Scottish Government has some very specific concerns in relation to how devolution operates in Scotland, the powers of the Lord Advocate and the ability of people who are resident in Scotland and who have been impacted by the troubles to access justice via the Scottish courts when the powers of the commission close off opportunities to seek redress, either civilly or criminally. Those are concerns for us here, in Scotland.

We are not a lone voice in expressing concerns—I point the member to the concerns that have been raised across political parties in Northern Ireland with respect to the bill.

I just want to say that it is inconceivable that we would support the bill. The cabinet secretary laid out the reasons for that very clearly at the start of the meeting, and I will not repeat all of them, but the standout for me is that it would deny justice to people in Scotland and Northern Ireland who have been affected by the troubles. The fact that all the parties in Northern Ireland did not support it says it all. I do not even think that we should consider supporting the bill.

Do any other members want to come in?

Does the cabinet secretary believe that it would create any problems or any opportunities if the legislation were to go ahead without Scotland participating in it, as Scotland has a separate legal system? What risk analysis has been done of the bill passing in Westminster without Scotland participating in it?

Could that undermine any policy objectives of the legislation? Would it undermine the work of the independent commission? Indeed, could it render much of the legislation useless, for example if someone who was an accused person was residing in Scotland and would therefore be prosecuted in Scotland, rather than anywhere else in the United Kingdom? Has the Government done any analysis of what that potential outcome or scenario might look like?

As the Cabinet Secretary for Justice and Home Affairs, I trust our court system and our system of prosecution. While we will continue to seek to engage the UK Government on further amendments, as you would expect us to do, the bottom line is that the UK Government can proceed with the bill. Mr Greene will be aware of my dissatisfaction with that type of arrangement, but that is the reality that we are in. I suppose that I would dispute the premise of aspects of his question.

No problem—thank you.

Good morning, cabinet secretary. You might not be able to answer this, but, if the political parties in Northern Ireland and the Scottish Government have some issues with the way in which the legislation is framed—albeit there has been some change—what is the driving force behind the bill, if not the parties in Northern Ireland? Has it come purely from the UK Government? It seems odd. Usually, there would be a campaign somewhere behind such a measure that had been pushing the Government to do something.

Pushing the UK Government?

Yes.

I cannot comment on that.

Okay—but do you think that is a fair question to ask somebody who could answer it?

Yes.

Where is the bill coming from? That is the difficulty that I have in making an assessment on the matter. Did the Scottish Government fully review what changes had been made to the bill?

Yes. They came late in the day, only on 8 June. We worked as speedily as possible on it, and we will continue to engage with the UK as much as possible, but time is short. As Mr Greene said, we anticipate debating the matter in the chamber next week. As for how the legislation will progress at Westminster, it will go to the report stage next week, I believe. Although it is not a matter for me, it is my understanding that the UK Government will be seeking to make progress with the bill before Westminster goes into the summer recess. Time is quite short.

I am just trying to get my head round the changes that have been made. How would you describe them? Would you say that they are fairly minor or superficial? Do you think that there have been any substantive changes since we last discussed the matter?

There remain fundamental concerns about how the bill cuts across the Lord Advocate’s constitutional powers.

So, that concern is still there.

Yes.

Thank you, members and cabinet secretary.

Our next item of business, under item 2, is consideration of any final issues that we would like to include in our report on the supplementary legislative consent memorandum. I open up the floor to members again, so that they can raise any specific issues that they would like to be included in our report. We will then move on from there.

The Scottish Government has been frank and open about its position on the bill—whether or not one agrees is a different matter. For the purpose of whether the committee, or indeed the Parliament, agrees or disagrees with the Government’s position on the legislative consent motion, one thing that has been sorely lacking is communication from any other party, other than the conversations that we have had in evidence sessions with the cabinet secretary. If the committee had been given sight of any correspondence or communication between civil servants, Governments, ministers, the Lord Advocate, the Northern Ireland Office, secretaries of state and so on, that might have been helpful. I am not saying that I do not trust the cabinet secretary’s word on the matter, but what we have heard is very much the opinion of the cabinet secretary and the Scottish Government on many of the matters before us, and it would have been helpful if some of that communication had been in the public domain—where it was not breaching any privacy or individual cases. I understand the sensitivities around that. Having sight of such communication may have helped the committee, and it could help members in the chamber next week.

Thanks very much for raising that issue. When we were scrutinising the original LCM, there was quite a lot of good communication at that time. I would not like to say how that has continued as regards what we are considering today and in relation to amendments, but there was some pretty robust communication previously.

It would be quite useful to see some things set out. We have had sight of one or two letters, but I cannot recall whether we have seen the most up-to-date correspondence. If it would be at all possible to hear directly from the Lord Advocate, that would be worth while. She is a member of the Scottish Government, and the matter relates entirely to her jurisdiction. I think that she could explain more confidently how the bill might potentially affect her role.

Thanks for raising that. There are a couple of points to make here. First, time is against us—we are under pressure of time. I am assuming that, if there was an update regarding the Lord Advocate’s position on the matter, and if she felt it appropriate to share it with the committee or with the Government, she would do so. The key issue concerns timescales, unfortunately.

I thank committee members very much for raising those issues. We will ensure that they are included in the committee’s report.

On that note, the question is, that the committee agrees with the Scottish Government that the Scottish Parliament should not give its consent to the relevant provisions in the Northern Ireland Troubles (Legacy and Reconciliation) Bill, as set out in the Scottish Government’s draft motion. Do members agree?

Members: No.

There will be a division.

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)

Abstentions

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

The result of the division is: For 6, Against 0, Abstentions 2. The committee therefore agrees with the Scottish Government that the Scottish Parliament should not give its consent to the relevant provisions in the Northern Ireland Troubles (Legacy and Reconciliation) Bill, as set out in the Scottish Government’s draft motion.

Are members content to delegate to me the publication of a short factual report on the outcome of our deliberations on the LCM?

Members indicated agreement.

The issue will now move to the chamber for all members to debate, based on our report. With that, I thank the cabinet secretary and her officials for attending this morning.

We will now have a short suspension while we wait for the next team to come in.

09:59 Meeting suspended.  

10:01 On resuming—