Chamber and committees

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.

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.

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.

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.

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.