Chamber and committees

We are still looking at that, but that is likely to be the case. We have started discussions with the NUM about using its records to identify a number of people in relation to the convictions that they had. If we can do something proactively in relation to that, we will look at that. However, there are bound to be people who are not captured by that, and we want to make it as clear as possible that if they want to get in touch with us, we will give them as explicit a statement as possible, in writing, about the pardon.

The maximum number of judges is set out in section 1(1) of the Court of Session Act 1988. The draft order in council will increase the maximum number of judges of the Court of Session by one, from 35 to 36. Judges of the Court of Session also sit as judges of the High Court of Justiciary. An increase in the number of judges of the Court of Session has been precipitated by the recent appointment of Lady Poole as chair of the Covid-19 inquiry. Lady Poole is an outer house judge of the Court of Session on secondment to the inquiry. During the secondment, she will not be available to sit in court. However, she remains a judge for the purposes of the statutory limit in section 1(1) of the 1988 act.

As that inquiry is expected to last for several years, the Lord President requested an additional judge to meet the demands of the business in the Court of Session and the High Court. The appointment of Lady Poole to chair the Covid-19 inquiry, coupled with the current high level of court business, means that the appointment of a further judge will provide additional judicial resource during these challenging times.

The Lord President does not consider that it is possible to appoint a further series of temporary judges drawn from the shrieval bench for this period of time, as that would place additional pressure on the sheriff courts and would therefore not secure the most efficient disposal of court business.

I am happy to answer any questions from members.

It would be consistent with my previous answer, and I would just point out that the Scottish Government and Parliament did not exist at the time. Indeed, policing itself was not devolved at the time. One of the allegations was that, at a Cabinet sub-committee, there was a reference to the way in which the policing of the strike should happen in Scotland. I do not know the exact terms, but it was around the Secretary of State for Scotland being asked at Cabinet to ensure that the strike was policed in the same way as the rest of the UK. That brings us back to the accusation that was made at the time about the policing of the strike being politically directed. There were also allegations about the involvement of security services, the use of phone tapping and so on.

However, we are in no position to examine those things—they do not fall within the competence of the Scottish Parliament. Indeed, if we tried to hold an inquiry without that evidence, we would undermine the calls that I, my predecessors and others have made for the UK Government to hold an inquiry. When I recently wrote to the UK Government on this matter, I said that the very process of introducing the bill and highlighting the issue would increase the pressure for a proper public inquiry to be held. I know that it can seem like a forlorn hope to make such calls to the UK Government, but I note that it recently agreed—at last—to hold an inquiry into the treatment of people who were convicted of homosexual offences in the armed forces before 2000. It is therefore possible to achieve such an aim, and that is where our focus should be. After all, these are the people and the agencies that have the evidence.

As for your point about policing being devolved, I have already mentioned the extent to which policing records have been destroyed. That has happened sometimes for very good reasons—indeed, it is part of the process. There are what are called the 40/20 and 70/30 rules. If you reach the age of 40 and it has been 20 years since your conviction, the police will destroy the records; if we are talking about something more serious, the records will be destroyed if you reach the age of 70 and it has been 30 years since the conviction. As we do not have the records, they cannot be looked at with the rigour of a public inquiry, but, on the outstanding questions about the policing and management of the strike and its political aspects, I believe that the right focus for that is the UK Government. That will certainly continue to be my focus.

That is not covered.

No. I do not know enough of the details of the case. I know the Fishcross miners welfare club, which is no longer called that, very well. I related to you the story about things being thrown at my car, such as snowballs, in a different context. I am also familiar with Alloa sheriff court.

We cannot go into that. As I have explained already, we cannot go back, although if what you have said about Mr Tierney is correct, there are avenues of redress that can be taken forward by him in relation to that. That is the best way to do that—through the judicial system.

What we are saying is that, if somebody was travelling through a community on their way to a demonstration, to the picket line or to their work, that is included. Just to make sure—because I seem to have caused some confusion with my previous answer; it may be me who was wrong, rather than you—we will maybe get Elaine Hamilton to be specific on that.

However, I will add a point for your information. You said—and you are right—that there were very few convictions in Scotland under the Conspiracy, and Protection of Property Act 1875. According to the records that we know about, there were 16 convictions, which were solely in the Strathclyde region. At the time of the strike, the maximum penalty was £50 or three months in prison. We do not know what the disposals were.

I do not know whether Elaine Hamilton wants to add anything to clarify that, specifically in relation to travelling through an area and where we are and are not covering that.

That is a very good point. We are examining what we can do around that. The reason for the automaticity of the pardon is to make it as easy as possible for people who cannot necessarily provide evidence or documentation—in fact, we cannot provide much of the evidence and documentation. However, the idea that people really have to know that they have been pardoned is an important point.

We are looking at whether we can, first of all, work with the National Union of Mineworkers to look at its records and reach out to as many people as possible. However, there may be data protection issues in relation to that, which we will of course observe.

Beyond that, whether we can make a written statement will have to rely in some cases on people getting in touch with us, because we will not have the necessary information. We will not be able to go into the details of anybody’s particular conviction, mainly because those records are no longer held. The written letter, if we are able to do that, would make explicit the details of and qualifying criteria for the pardon, and it would it make it clear to that individual and their family that they are being pardoned. We are looking at that just now.

The answer to the second point is no, I am not sure that we have considered that suggestion from the Lord President.

However, the draft order before us comes at the request of the Lord President, and that is partly for the reasons that you mention. We are keen to tackle the backlog, and that is perhaps why we have gone beyond the previous limit of 35, which was increased from 34 in 2016. We do not want the business to deal with the backlog to slow down, and that is why we want to appoint a further judge.

We have considered other things that may help. Sheriffs are sometimes elevated, but that would put more pressure on the sheriff courts. We are trying to balance that. The measure increases capacity for the Court of Session at a time when it would otherwise reduce because of the appointment of Lady Poole to the inquiry.

I am pretty sure that the Lord President said to me in his letter that the measure was to do with the backlog, too. That is being taken into account.

This landmark bill honours the commitment that the Scottish Government made to bring forward legislation to pardon miners of certain offences relating to the miners strike of 1984 to 1985. It follows up a recommendation made by an independent review group that a pardon should be granted to miners who were convicted of certain offences during the strike, subject to qualifying criteria. The pardon was intended to recognise the disproportionate impact felt by those miners as a result of taking part in the strike, to restore dignity to them, and to help the mining communities heal old wounds.

To establish what the qualifying criteria should be, the Scottish Government undertook a public consultation last year. The provisions in the bill reflect both the outcome of that consultation and careful consideration of the available data. It is important to emphasise at this point that there is very little surviving evidence from police and court records from the time of the strike, which is why I do not propose to put in place an application scheme for the pardon. I wish to make the qualifying criteria for the pardon as simple as possible so that people are able to assess for themselves whether the criteria are met, without having to find documentary evidence.

The bill proposes a collective pardon to miners that will apply automatically to those who meet the qualifying criteria, which are that the miner’s conviction relates to an offence committed while on a picket line, demonstration or similar gathering in support of the strike, or while travelling to or from such a gathering. The qualifying offences are breach of the peace, breach of bail conditions and those under section 41(1)(a) of the Police (Scotland) Act 1967, commonly known as obstruction.

The bill is about reconciliation and dealing with the past in a sensitive way. The conditions of the pardon recognise that miners and police officers found themselves in extremely challenging situations where relationships came under unprecedented strain. Miners who took part in industrial action did so to protect their jobs, their way of life, and their communities. Police officers were only exercising their duty to uphold the law, in circumstances and on a scale that they had never encountered before.

The pardon will apply both to living people and posthumously, given the passage of time since the strike. The pardon does not quash a conviction; neither does it create any rights or entitlements. I am clear that the bill should not cast any doubt on decisions made by the judiciary at the time or seek to place blame on any individual or group of individuals. Once again, I am happy to take the committee’s questions.

I can speak from my own experience of watching the events contemporaneously. I was never on the picket line, but I am pretty sure that I was involved in demonstrations, and certainly supporting activities, as a student in 1984. As I am sure the committee will remember, there was a lot of activity among students and community groups to help with miners’ welfare and so on.

Like everyone else at that time, I saw the pictures coming in from Orgreave, for example, where the policing seemed to me to be inconsistent with policing methods in Scotland. That distinction sometimes still appears to be there. For example, we might look at the policing of the recent 26th United Nations climate change conference of the parties—COP26—and the policing of the aftermath of Sarah Everard’s murder and the conviction that followed.

Policing in Scotland followed a different path even back then. However, there were allegations at the time—for example, that officers did not have numbers on their tunics and so on. I remember that there was a lot of grievance, because it was a time of heightened tensions at Bilston Glen and the other mines where there were issues. We are saying, therefore, that it was very difficult for the police, too, as they had not been put in such a situation before.

I do not have enough evidence to make a judgment on what the policing was like or where it fell down, but we know that miners were trying to defend their communities, their way of life and their livelihoods, and that led to some of the situations that happened on picket lines. For that reason, we are trying to see whether we can bring some reconciliation to the communities, and some comfort to the miners who were convicted and have had that conviction hanging around them for some time. That is the purpose of the bill; I do not pretend that it is trying to do anything else.

There are good reasons why we should not try to do a job that should be done by the UK Government. We do not have the facility to do that—we do not have the records, and the Parliament does not have the competence to look at some of those issues.

You are absolutely right that it comes down to judgments. However, it is also true that, if we were to seek to pardon those convictions, it would set quite a precedent for similar offences that are committed now or in the future. Based on the consultations that we have had, I think that there would be a lot less sympathy when it comes to offences such as street fights, intimidatory conduct, violence or damage to property.

The point about the picket line is important. Our view—which, as you said, is based on a judgment that we have to make—is that, on the balance of probabilities, the miners’ conduct on a picket line or demonstration, or when going through a community to attend one of them, was directly related to support for saving jobs, rather than being an action born of anger or retribution against an individual. Therefore, you are right that it is a question of judgment, and that is the judgment that we are making. However, we will, of course, listen to other points of view.