Chamber and committees

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.

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?

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.

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.

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.

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.

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.

I understand the point that Pauline McNeill is making, but she also started her comments by saying that she knows that I cannot comment on some of those things. Whatever else it was, the decision was taken by an independent Crown Office, so she knows the constraints around what I can say, but she also knows the process for accountability that is in train for that. If there is a subsequent inquiry, that will also be independent. That is the reason why I am not able to say more at this stage.

If there is a public inquiry, some people would term that as a process of accountability.

That has been established in the First Minister’s responses in the chamber on a number of occasions.