Chamber and committees

Of course, the SCTS has a degree of autonomy and independence in relation to the matter. The scheduling of trials is its responsibility. It tries to mitigate the impact of non-attendance by overbooking to minimise the court time that is wasted. A number of specific measures are also taken—including the summary case management pilot, which is being undertaken in Paisley, Dundee and Hamilton, I think—to ensure that, if time becomes available because of non-appearance, another case can take the place of that hearing. That minimises the time that is wasted for the courts. It does not directly address the point of concern for Mark Griffin’s constituent. However, the management of court cases is for the Scottish Courts and Tribunals Service to undertake.

To go back to the original point about cost, the last substantial estimate that was made was done by Audit Scotland. It admitted the difficulties that there were in trying to get a definitive figure but it might be interesting to Mark Griffin and might partly answer his question to know that Audit Scotland arrived at a figure of around 5 per cent for the cost of churn—that is, cases that were not taken. I am happy to provide him with more information in writing about the absolute number if we have the daily number for cases that have been subject to non-attendance.

We have had two days.

No. Carry on.

My app did not work. I would have voted no.

My app did not work. I would have voted no.

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.