Chamber and committees

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.

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.

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

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.

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.

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

Yes, she does.

Pushing the UK Government?

I cannot comment on that.

Yes.