Seòmar agus comataidhean

To return to the first question that was asked about the issue, it is not an effect of the bill.

The point that I have tried to make is that the public will know exactly what the legislators have done and what discretions have been afforded to the Crown. Things would be less transparent if they were the result of a back-room discussion between us. We, as legislators, have stuck to our legitimate role of providing the framework, and the Crown sticks to its role and independently comes to its own conclusions while having regard to what the legislators have put in place. The approach is more transparent. People will know where the influence is. That is why we have chosen that route.

I cannot talk to the interpretation that whichever academic you were referring to put on this. I acknowledge, though—I said this in the chamber recently—that risk is a part of the justice system. It is part of every justice system that I know of. I am happy for anybody to point to me a justice system—whether it is parole boards, courts or other parts of the system—that does not have to balance risks on a regular basis.

I acknowledge the risks that are there, but we are trying to minimise those risks. To go back to an earlier answer that I gave, you can argue that, by reducing the numbers of people who are on remand and do not necessarily need to be on remand, you are also reducing risk. There is an element of the bill that helps to reduce risk. Of course, the part that we have not really got on to so much—part 2—is also designed to substantially reduce risk. The package of proposals that we are making is designed to reduce risk. We are not asking the public to trade risks or to accept a higher level of risk. We are trying to minimise risks.

You started with quotes as if there was a dichotomy between different groups of witnesses. I have a number of quotes from Victim Support Scotland that are supportive. Kate Wallace said:

“It seems to us that one of the main purposes of the bill is that it will potentially strengthen the approach to public, complainer and victim safety.”

She also said:

“Given the size of the remand population”.—[Official Report, Criminal Justice Committee, 11 January 2023; c 9, 12.]

You also mentioned the police. I cannot put my hand on them just now, but there are also supportive quotes from the police about what we are doing. It is probably never going to be the case that we will get everyone to agree—that is not going to happen—or that people who do agree with it will agree with every part of it or people who disagree will disagree with every part of it. I accept that, but in the end, the purpose of Government is to show leadership, so we are putting this forward.

At this point, however, it is important to reiterate the point that I made before. Jamie Greene, I think, said in the chamber that we have to wrestle or wrangle with this issue—it might have been Pauline McNeill; forgive me if I am wrong. That is what we are doing. We are not saying that we have a monopoly on wisdom. If people have better ideas on how to do what everybody here says that they want to do, which is to reduce remand, please come forward and say, “This is the way to do it”, and we are happy to look at that.

I will come back to Jennifer Stoddart, but you are absolutely right, convener. The problem of unexpected release, say, straight from the dock, which can happen for a number of reasons, has been raised. We are wrestling with that and with how the agencies can gather round to meet the different demand made in that circumstance. It most frequently happens to somebody who may have been on remand for only a short time.

Jennifer Stoddart might want to put some detail around that.

I think that what Philip Lamont said was that, if part of the case against a person is related to non-appearance, it can be taken into account at summary level. However, we will write with clarification on that.

First of all, it is not for us to say whether the court system has been wrong in relation to those people who have committed serious offences while on bail. One of your expert witnesses—Philip Lamont might have the exact reference—said that around 21 per cent of prisoners did not need to be on remand.

One of the purposes of the bill is to take into account the gravity of the offence, as well as the likelihood of risk of further offending. Of course, to have a sensible estimation of the recidivism—the offending rate—of those on bail, you have to compare that with what it would be if they had served in custody. The two rates are a very useful comparison.

We think that there is a cohort, although not necessarily in relation to serious crime—as I mentioned in response to Rona Mackay, the vast majority of people who are currently remanded under section 23D are likely, for the same reasons, to be remanded in the future—that need not be put on remand.

It would be useful to hear from Philip on that as well, convener.

That does not necessarily relate to the nature of the crimes of which they are accused. It does to some extent; I realise that.

I am a little bit confused. What is it in the test that is proposed that does not go far enough to capture more of the people about whom you are concerned? I say that because I think that the discussion with the committee is also meant to be a bit of a dialogue. I am happy to be questioned, but we are genuinely looking for other people’s ideas about this, so if there is a category of people that we are not going to capture with those proposals, I am happy to hear that.

Since you asked Philip Lamont about a contradiction in his statement, maybe we should hear from him too.

That is a fairly good prediction. I think that Mr Findlay proposed an amendment previously. We are looking at how we can proceed at stage 2, as well.

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.

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.