Criminal Justice Committee

Meeting date: Wednesday, December 7, 2022

Official Report 532KB pdf

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Northern Ireland Troubles (Legacy and Reconciliation) Bill

A very good morning and welcome to the 31st meeting in 2022 of the Criminal Justice Committee. We have received no apologies this morning, but I should say that Collette Stevenson has had to leave the committee room. Hopefully, she will be able to rejoin us soon.

Agenda item 1 is an evidence-taking session on the legislative consent memorandum to the Northern Ireland Troubles (Legacy and Reconciliation) Bill. I welcome to the meeting the Cabinet Secretary for Justice and Veterans Keith Brown and, from the Scottish Government, Helen Nisbet, deputy director, defence, security and cyber resilience; Michael Sim, defence policy manager; and Nicholas Duffy, senior principal legal officer. I refer members to paper 1.

I invite the cabinet secretary to make a short opening statement.

Thank you, convener.

The Scottish Government has recommended that Parliament withhold consent to the provisions in the United Kingdom Government’s Northern Ireland Troubles (Legacy and Reconciliation) Bill. Our reasons for doing so focus on our concerns about the bill’s impacts on those who were affected by the troubles, as well as the effect of the bill on the Lord Advocate’s role as independent head of the systems of criminal prosecution and investigation of deaths in Scotland.

I will deal first with those who had the misfortune to be directly affected by the troubles. We believe that the bill is incompatible with the Scottish Government’s view that those who suffered during the troubles should have the opportunity to obtain justice and that those who committed offences during that time should be appropriately held to account and/or punished. The bill will effectively mean an amnesty for those who have committed serious offences such as murder and crimes involving abuse and torture.

We are not the only ones who hold that view. The Council of Europe’s Commissioner for Human Rights, whose very mandate is to foster the effective observance of human rights, has raised her apprehensions about the bill. In her report to the Council of Europe, she gives the opinion that the bill also runs a very significant risk of being found in court to be non-compliant with the European convention on human rights. In that same report, she points out that there is minimal support for and confidence in the bill in Northern Ireland.

Even more significant is the opinion of the Northern Ireland Human Rights Commission, which has recommended that

“the entire draft of the present Bill”

requires

“immediate and thorough reassessment, which should take place through meaningful engagement.”

It also expresses its grave concerns that the present draft of the bill

“is therefore incompatible with human rights and the Belfast (Good Friday) Agreement.”

Ensuring justice for those who suffered in the troubles is not our only concern when considering the bill. As I said at the outset, we believe that 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. The Lord Advocate’s independence, of course, predates devolution and is protected by section 48(5) of the Scotland Act 1998, but some of the powers proposed for the independent commission created by this bill undermine that independence and breach a fundamental cornerstone of our criminal justice system.

For example, the commission is given powers to grant immunity from prosecution in certain circumstances, which, in practice, would prevent the Lord Advocate from investigating criminality or a fatality where she would otherwise have jurisdiction. Even where immunity is not granted, the Lord Advocate’s role could be similarly impeded by the commission refusing to refer appropriate cases to her. Although it is the Scottish Government’s view that the clauses pertaining to the Lord Advocate do not require consent, many clauses that do require consent are integral to the Lord Advocate’s ability to perform her role and, if this Parliament were to give its consent to them, the practical effect would be to undermine her independence in those areas.

It is for those reasons—that is, our concerns about the bill’s effect on those who have suffered during the troubles and the lack of regard to the role of the Lord Advocate and the protections enshrined in the 1998 act—that the Scottish Government cannot recommend consent to the bill in its present form.

Thank you very much indeed, cabinet secretary. I open it up to questions from questions. If anyone has any questions, they should indicate as much now.

I call Jamie Greene.

Thank you, convener. First of all, I welcome Collette Stevenson back to proceedings. Are you okay, Collette?

I am sorry—I look like a pirate.

We will just call you Popeye. Do not put that in the Official Report.

Thank you for your opening remarks, cabinet secretary, and for bringing the Scottish Government’s position on the bill to our attention. However, I seek clarification on what seem to be two different strands to the Government’s position.

I will start with the latter strand, which is the perceived technical issues, notably around the bill’s compatibility with rights and legislation associated with the ECHR and the interaction with the role of the Lord Advocate in instigating criminal prosecutions in Scotland. The first of those issues is perhaps more political or policy led, and you have gone into some detail about incompatibility with the Scottish Government’s view that those who suffered during the troubles should be able to obtain justice. I will start with that and then move on to some more technical aspects.

First, you have gone to great lengths to explain the perceived view of the bill in Northern Ireland. I have to wonder, though, about the relevance of that to the Scottish Parliament and to the question of the Scottish Government’s consent. After all, this is a bill with five parts and 58 clauses that address a number of wide areas, not just the issue of immunity and prosecutions. Other things in it—for example, the extension of the prisoner release agreement—have been in place for a number of years, and I would just point out that it also establishes and instigates the independent commission for reconciliation and information recovery, about which many positive things have been said. Being a big bill, it will perhaps have some controversial aspects, and it addresses a number of issues on which there will be a range of views. Can you start by explaining the policy or political problems that you have with the bill, cabinet secretary, before we talk about the technicalities?

First of all, I concede that there are parts of the bill with which we would have no issue, if they were standing in their own right. However, in the overall context of the bill, there are three areas where we—and human rights organisations in Northern Ireland and elsewhere—think that this Parliament’s ability to comply with its human rights obligations will be undermined.

As I have said, the bill infringes on the Lord Advocate’s independence. Under its provisions, she could not be—as she currently is and as all the parties in the Scottish Parliament have hitherto generally agreed should be the case—the person who decides on all investigations into certain serious offences in Scotland. That is a fundamental objection to the bill; even if some of the bill’s elements are absolutely fine on their own, our objection has to be seen in that context.

11:15  

You have also asked about the impact on people who suffered during the troubles. This is not just some academic thing; such cases could come to and be tried in Scotland. Perhaps the issue of human rights standards is, as you have suggested, political—although it does not seem to me to be so, given how these matters have not been so contested in the past—but if somebody has been subjected to torture or abuse or knows somebody who has been murdered, it is important that those matters receive due process. The bill would insert a new body into that process in a way that we think would undermine the independence of the Lord Advocate and this Parliament’s role in relation to human rights.

I am not sure that those are necessarily political objections. I think that they are well founded, and they are founded on principles such as the Lord Advocate’s independence and the human rights basis of this Parliament.

Helen, do you want to add anything?

No, cabinet secretary. You have already highlighted the views of the Northern Ireland Human Rights Commission and other bodies. It is a matter for the Scottish Parliament as to the extent to which it is prepared to give way to them, but the Scottish Government has taken a position on the legislative consent memorandum that has been lodged.

Just for clarification, then, is it the Scottish Government’s position that any form of reconciliation that offered amnesty to individuals, irrespective of their background or circumstance, would be a matter subject to a more fundamental principle of disagreement? In short, is it the Government’s position that such a process should not take place? Moreover, is it the Government’s position, therefore, that the independent commission would not, in that sense, be truly independent?

We are, of course, not against the idea of reconciliation—or, possibly, amnesties—as we have already seen under the Belfast/Good Friday agreement. There is no in-principle objection to that; it is just the way in which the proposal has been constructed, with the insertion of the commission into a process that, we believe, undermines the two principles that I have mentioned: the independence of the Lord Advocate and the human rights basis of this Parliament and Government. Those are the two principles that I am highlighting. It must be at least theoretically possible to contrive a commission that can do such things without undermining those principles; this is not, in principle, about the commission itself.

Let me pose a hypothetical question: what if a solution were to be found to those barriers, namely the interaction between the role of the Lord Advocate and the role of the independent commission? First, are you aware whether the Lord Advocate has made her views on the matter open to the Northern Ireland Office or the Secretary of State for Northern Ireland and, if so, whether she has had any response and whether the Government has been privy to that correspondence? Has that approach been in any way helpful or constructive in, perhaps, finding a possible solution?

If a solution could be found through whatever means—I am sure that there are a number of means by which that could take place—would that make the bill as a whole more palatable to the Scottish Government? Even if the issue were addressed and further advice given on ECHR matters, would the Government still have a problem with the fundamental premise of the legislation?

I will get Helen Nisbet to give us an update on the engagement between the Lord Advocate and the Northern Ireland Office. There has been engagement, and the Lord Advocate has suggested remedies that might help deal with the situation, but I do not think that there has been a response yet.

However, any answer that is given will be to what is, as you have said, a hypothetical question. We have to deal with the bill before us. If the issues with regard to the two fundamental principles that I have mentioned—that is, the independence of the Lord Advocate and the human rights aspects—were to be resolved to the satisfaction of the Lord Advocate and the Scottish Government, it would at least be possible to see some way through, because those are our two main objections. Again, though, that is hypothetical, and we have to deal with the bill as currently constructed.

I do not know whether there is any update to what I have just set out.

No. The Lord Advocate has written to the Northern Ireland Office and explained where she feels her constitutional position as Lord Advocate of Scotland in respect of the investigation of crimes and fatalities would be impacted by the bill. She has proposed avenues that could be explored as a means of closing that gap but, as far as I am aware, she has not had a response to her proposals.

On Mr Greene’s question whether the human rights side of things could be overcome, it might be worth pointing out the Northern Ireland Human Rights Commission’s comment that the bill is—and these are its words—“fatally flawed” and that it is “not possible” to make the bill compliant with the European convention on human rights. It has also expressed grave concerns that the

“the Bill is incompatible with Articles 2 (right to life) and 3 (freedom from torture)”

of the ECHR and with the Belfast/Good Friday agreement. There will be a long way to go to overcome those objections.

I am not sure, convener, how much of that correspondence can be made available to the committee either privately or publicly or to the wider public with an interest in it, but that communication would certainly be helpful, as, indeed, would any response from the United Kingdom Government to the Lord Advocate or the Scottish Government, in so far as it is appropriate. I also note that a letter was sent by the Parliament’s Delegated Powers and Law Reform Committee to the UK Government in, I think, early November, but I am not sure whether that committee has had a response either. Certainly, all of that in the round would help committee members in future.

Cabinet secretary, I am pleased to hear you at least making it sound as if a constructive conversation could be had. However, as you have said, you can judge this only on the merits of what you have in front of you today, and I understand that. Thank you very much for your time.

I call Pauline McNeill, to be followed by Russell Findlay.

Good morning, cabinet secretary and everyone.

I must confess that I think that the committee was given quite a lot of information to consider on what seems to be a vital issue of principle on a number of matters and the highly sensitive issue around the commission. I want to take my time to decide whether I want to support the Government, which has set out some good reasons, and whether, in principle, what is intended by setting up the commission is perhaps a long-term objective.

Cabinet secretary, you have set out the Lord Advocate’s independence. I have questions around why civil issues, for example, would be included. If we were to support the LCM in the Parliament, criminal and civil jurisdictions would be severely restricted, so I have questions around that.

In a nutshell, is the Scottish Government fundamentally opposed to the principles behind the commission or to the principles within it? That is the bit that I have difficulty grappling with, as well as the human rights issues on which you replied to Jamie Greene. Would that mean, therefore, that the overall purpose of the commission could not really be achieved on any other basis?

We are trying to consider what would happen if the bill were passed. The effect of that would certainly be to undermine the Lord Advocate’s role, because there would be cases that she could no longer prosecute that she might otherwise want to prosecute. In fact, even if the commission decided not to prosecute, if it decided not to refer a case to the Lord Advocate, there would be nothing that she could do to prosecute a case that she might want to prosecute. That is one of the effects, and it is that effect that we are talking about.

I mentioned the specific articles that some of the human rights organisations have expressed concern about, and we have the same concerns. You know the basis on which the Parliament was founded in relation to human rights. However, it is also true to say, I think, that every Opposition party at Westminster and all the parties in Northern Ireland are similarly concerned about aspects of the bill.

I am trying to point out the practical effects for the Scottish Government and why we would object to them. You asked about the principles of the commission. If the principles of the commission allow for that intervention in the legal system in Scotland in a way that undermines the Lord Advocate’s position, it is a principled objection. It is certainly a principled objection to say that we do not think that the commission is compliant or to say that we have sufficient concerns about compliance with the ECHR. It is a principled objection to the basis on which the commission is founded, rather than to the idea of a commission itself.

That is helpful. Put simply, is it fair to say that to take those powers away from the Lord Advocate and the Scottish criminal justice system and place matters entirely in the hands of the commission would place too much trust that the commission would achieve its objectives and not undermine any interest that we might have in Scotland?

You will know better than I do that the basis on which the Lord Advocate’s role is constructed is undermined by the bill. She might suddenly be no longer able to say, “I think that there is a crime here, and it is in our interests to prosecute”, because somebody else is allowed to say, “No. In fact, it will not even come to you until we have done our business here, and we might not let it come to you afterwards”. It is that fundamental change to the position of the Lord Advocate that is detrimental. For all the reasons that it is good in principle to have an independent prosecutor in Scotland, the role is not really beholden to anybody else, and certainly not to the Government. This would be the first time that you would see that power and independence being fettered by another body. That is our objection.

That is the bit that I understand. The bit that I wrestle with is that the general principle behind the commission is to get some of the stories and to get to the truth about what happened in Northern Ireland. In that framework, the commission would have the powers to invite people to come forward without prosecution or would, I suppose, indemnify them. That is the principle behind it, and the Lord Advocate would need to trust completely that the commission would do it in the right way and would not upset families or individuals who want justice for their family or for themselves but cannot get it because the commission is trying to do something else—namely, provide indemnity to get to some of what happened.

You are right. There might be laudable purposes behind what is intended, and it might be that, given the exchange and engagement between them, the Lord Advocate and the Northern Ireland Office can find a way around the more fundamental objections. The issues that we have objections about undermine those perhaps laudable purposes. There might well be merit in getting people to come forward without fear of prosecution, but it does not overcome our fundamental objections.

You raised a point about the civil side of things, and it might be best to get someone who is more expert than me to address that point, if that is okay.

Under the bill, if a civil claim is not raised before 17 May 2022, it cannot be raised at all. That is basically a retrospective stop on all civil claims. That is the date when the bill was introduced at Westminster.

Finally, given that the issues are historical, are there likely to be many civil claims?

It is really hard to tell. Stuff is coming out, but I do not really know. It is hard to tell.

I want to touch quickly on something that Helen Nisbet said about the letter, which Jamie Greene suggested should be made public, if possible. Is it already in the public domain?

I am not aware that it is in the public domain. I am not here on behalf of the Crown Office, so I cannot say one way or the other, but I noted what Mr Greene said.

11:30  

No problem.

This question is for the cabinet secretary. We have heard your concerns in writing and verbally. Pauline McNeill asked a version of this question. Do you agree with the sentiment behind what is intended by the bill, which is to find truth and justice for many of the people who suffered loss during the troubles? Do you back that principle, even if the bill is not the way to achieve it?

That is a difficult question to answer. Certainly, I back the general idea that you want to get as much truth, openness and justice as possible through any such process. However, you cannot get justice if you undermine, on the one hand, the role of the Lord Advocate and, on the other hand, the accepted basis of human rights. In general terms, why would you not support trying to achieve greater truth, transparency and, hopefully, reconciliation? Justice must be at the heart of it, however, and we do not think that justice is served by the bill. All that we can go on, rather than sentiment or hypothesis, is what is presented to us. That is why we are opposing it.

As a continuation of that, if not through this bill—clearly, you have serious misgivings about it—do you agree in principle that, given the sensitivities of the troubles and everything that goes with them, a United Kingdom-wide approach is preferable and, indeed, necessary?

Yes. There is no way that it can be other than an approach that is taken forward by the UK Government. The powers are all reserved powers that rest there. It is just the interface with the justice system in Scotland that we are concerned about.

Any system must be based on the principles of justice, and I have outlined why we think that that is not served by the current proposal. It is for those who want to initiate this to come forward with an amended proposal, if they want to do so, to see how it can be achieved without undermining human rights and the position of the Lord Advocate. Justice is a broad concept, however. People need to feel that justice is served. To do that, you have to observe other principles, such as the independence of the judiciary and the fundamental nature of human rights.

It is not a closed door, as far as the Scottish Government is concerned—is that a reasonable interpretation? Are you willing to look at whatever form it might take?

Yes. We are obviously interested to hear the outcome of the Lord Advocate’s engagement with the Northern Ireland Office. As Helen Nisbet rightly says, it is not for us to take a decision on publication; that is entirely for the Crown Office and the Lord Advocate. It might, however, help to find a way forward on the issue.

It is regrettable that we were informed so late in the day. That has not allowed us to carry out the consultation that we would have liked to carry out. It is becoming a more regular occurrence. We were advised of the bill on the day that it was introduced at Westminster, although some paragraphs had been shared with us beforehand. We will, of course, look at any changes that come and will discuss with the Lord Advocate how she feels that the engagement and the suggestions that she has made have been received by the Northern Ireland Office.

That is great. Thank you.

I thank the cabinet secretary and his officials for attending. We will have a short suspension before moving on.

11:34 Meeting suspended.  

11:36 On resuming—  

I have a quick update on the point that Jamie Greene raised about the correspondence that was sent to the UK Government from the Delegated Powers and Law Reform Committee in relation to the bill. I can confirm that, to date, there has been no reply to that letter, which was dated 10 November.

In view of the questions that were raised in response to the update given by the cabinet secretary and some of the comments made by his officials, and also in view of the Scottish Government’s position on the LCM, I propose—I am happy to discuss this further with members—that we do not put the question of consent today and that we consider the matter as a committee, so that we can obtain more information for further consideration. That is my proposal, and I am interested in hearing members’ views on it.

I apologise for having instigated the conversation about the correspondence, but LCMs are important.

The convener’s suggestion is very helpful, and I appreciate it. Whatever our views on the substantive elements of the bill, such as the commission and other aspects, that would give us the opportunity to seek more information.

Specifically, it would be helpful if the Northern Ireland Office was pressed to respond to the DPLR Committee on its feedback. There was a very late submission to members of that committee last night from the Law Society of Scotland, which raised a number of valid points.

The DPLR Committee will also need the opportunity to respond to the Lord Advocate’s letter. We have not seen that letter and do not know its content, but it sounds like it could be a productive and helpful piece of communication. There might be a question as to whether we could get sight of that letter and of any response in due course, or whether we could at least get confirmation about whether any impasse is insurmountable or whether there could be a positive way forward that would alleviate some of the Lord Advocate’s potential concerns. We have not heard directly from the Lord Advocate, and I do not want to put words into her mouth, but, from what the cabinet secretary said, it seems that she has some concerns that have led, in due course, to the Government’s position. The Lord Advocate might wish to write to that committee or to the Government and then to us; I am not that fussed which it is. However, if we could look at all that correspondence, that would help us to make a better-informed decision about whether to agree with the Government’s position.

The passage of the bill through Westminster—I am not sure of the timeline for that—might present an issue, given that recess is nearly upon both Parliaments. We would not want to stand in the way or affect that.

That is certainly a middle ground, if nothing else, given that this is quite a big and, as members have pointed out, sensitive issue. We all want to do the right thing.

That was a helpful contribution from Jamie Greene. I start from the viewpoint that the commission’s central purpose is a good one in principle. However, if it achieves what it wants to do, it will have wide-reaching implications, especially in indemnifying anyone against criminal prosecution and, as we have heard, civil proceedings.

I am clear in my own mind now, having read the DPLR Committee’s report and listened to the cabinet secretary. That committee noted that

“There is no requirement in the Bill that the UK Ministers obtain or seek the consent of the Scottish Parliament or Scottish Ministers before exercising the powers in the Bill within the Scottish Parliament’s devolved competence.”

It is important to uphold the principle that Westminster should seek the consent of this Parliament when seeking to do something on a UK-wide basis that is within the competence of the devolved Parliaments, such as criminal legislation. That principle needs to be upheld.

There is a lot to consider in all this. There are a number of substantial issues and, for that reason, I would like us to take more time. I am sympathetic to the Government’s position, now that I have heard it, but I would like us to take time over it in order to balance the overall objectives against some of the principles. However, it is really hard to overlook that principle because, at the end of the day, if we were to give up the powers of independence of the Lord Advocate, we should seek Parliament’s consent to do so.

I take a more straightforward view: I completely and utterly oppose the bill. There are two sides to it. There is the mission creep into our competencies and judicial system, which is quite blatant. The other side is the content of the bill. I really do not understand why the UK Government is trying to introduce this. I am not sure what its objective is. In relation to the commission, people say that it is good to investigate things, but if you look at the detail, you see that, even if it investigates, nothing can happen. There is a block on any access to justice for victims.

I cannot see any good in the bill. I realise that I might be outvoted, but I do not think that there is any purpose in delaying our decision. There should be a flat rejection of the bill. I am not sure of the worth of getting further information, because the bill, as it stands, is clear cut. I would oppose it completely right now.

There is probably universal agreement that truth and justice are paramount, and we should not lose sight of the fact that that is the intent behind the bill. So many families have still not got answers after so many decades. I was reassured that the cabinet secretary agrees with that principle. Importantly, he also seems to agree with the need for a UK-wide approach.

I cannot agree with Rona Mackay’s interpretation of this being some kind of nefarious mission creep into the Scottish justice system. To oppose the bill on principle would be wrong and, indeed, premature. Pressing pause, as has been proposed, is the right thing to do, for the reasons that have been outlined by Jamie Greene and others.

I thank members for their comments.

To summarise, we are looking to strike a balance. There is our desire to deal timeously with the LCM, and, as has been pointed out, we have to take into consideration timescales elsewhere. However, it is important that all members are comfortable that we have fully considered the implications of the bill and, accordingly, feel that we, as individual members, can take a position on it.

On that basis, I propose my initial suggestion to delay putting the question of consent to committee members today so that we can obtain more information. I note Jamie Greene’s comments about seeking copies of correspondence, if possible. He also mentioned the Lord Advocate, which is entirely appropriate, given her role in this. We will come back to the matter at a future meeting, when we will give it further consideration and, I hope, come to a conclusion. Do members agree to that approach?

Members indicated agreement.