Meeting of the Parliament 28 June 2023
I am aware that the bill has been opposed by every political party in Northern Ireland, including the Democratic Unionist Party, and key stakeholders such as Amnesty International, Relatives for Justice and WAVE—Widows Against Violence Empower—Trauma Centre, the latter being the largest cross-community victim group in Northern Ireland.
The Scottish Government advised the Scottish Parliament to refuse consent on the bill on 20 October 2022 when the first legislative consent memorandum was lodged. The majority of the Criminal Justice Committee voted to support that position when the committee published its first report on the bill on 10 January 2023, with two members voting against the Scottish Government’s recommendation.
Since then, the UK Government has proposed further amendments to the bill, the most recent of which it published and provided in full to the Scottish Government only on 8 June. We have considered those new amendments, and it is the position of the Scottish Government—which includes the Lord Advocate and the Solicitor General for Scotland—that the recent amendments do not resolve the concerns that resulted in the recommendation that the Parliament should not pass a legislative consent motion on the bill.
In its current form, despite the amendments that were tabled by the UK Government, the bill still gives rise to three key areas of concern for the Scottish Government, of which I apprised the Criminal Justice Committee on 21 June. First, it will limit the ability of victims of the troubles to seek justice through Scottish courts if required. Secondly, it does not respect devolution and provides power to the Secretary of State for Northern Ireland to amend devolved legislation without first discussing the matter with, or obtaining consent from, this Parliament. Thirdly, it has the potential to impact on the powers of the Lord Advocate as independent head of the systems of criminal prosecution and the investigation of deaths in Scotland. The Criminal Justice Committee published its final report on the bill on 23 June, with no members voting against the Scottish Government’s recommendation to withhold consent.
In its current form, the bill still allows the granting of immunity to people who apply for it, even though they might have committed serious offences during the troubles. In effect, it could mean an amnesty for those who have committed offences such as murder or crimes involving abuse and torture, including crimes that were conducted by agents of the state. The amendments will not increase the opportunity for people who have been directly affected by the troubles and are seeking justice to obtain justice or ensure that people who committed offences during the troubles are appropriately held to account.
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 respects devolution, it should not exercise powers within the legislative competence of the Scottish Parliament unless doing so is specifically agreed.
Even with the concessions that have been made by the UK Government, the bill continues to encroach on the role of the Lord Advocate as the independent head of the systems of criminal prosecution and the investigation of deaths in Scotland. The principle that the Lord Advocate takes decisions in their capacity as head of the systems of prosecution and the investigation of deaths independently of any other body predates devolution and is protected by section 48(5) of the Scotland Act 1998. The power to grant immunity that is proposed for the independent commission that will be created by the UK Government’s bill potentially undermines that principle by adversely impacting on the Lord Advocate’s ability to take decisions on whether to commence prosecutions.
As I laid out to the Criminal Justice Committee last week, under previous iterations of the bill, it was the case that, even when immunity was not granted, the Lord Advocate would not be able to commence a prosecution unless and until the commission decided to formally refer the cases to the Lord Advocate’s office. Therefore, I welcome the amendment that has been proposed by the UK Government, which will mean that the Lord Advocate can direct the commission to refer such a case to the Lord Advocate’s office when it is considered appropriate. I understand that the Solicitor General met Lord Caine to discuss that amendment. However, as I already stated to the Criminal Justice Committee, at the heart of the bill is the power given to the commission to grant immunity from prosecution for the most serious of offences.
In Scotland, we would expect the power to make decisions on which individuals should be prosecuted to be exercised by the Lord Advocate acting independently in the public interest. Despite the recent amendments to the bill, the commission’s power to grant immunity still has the potential to cut across the independent decision making of the Lord Advocate. In effect, the commission, and not the Lord Advocate, will have the discretion to decide whether a prosecution can be raised. The Scottish Government does not think that it is wise or appropriate for the UK Government to alter the Lord Advocate’s constitutional position in that way and, in my view, it is not something that the Scottish Parliament should consent to.
The Scottish Government has a responsibility to review UK Government legislation that will impact on the devolved powers of this Parliament and to review any amendments that are made to it. We have done so, and it is our recommendation that the Parliament maintains its position of withholding legislative consent to the amended Northern Ireland Troubles (Legacy and Reconciliation) Bill. Therefore, I urge all members to support that position, which is backed by the Scottish Parliament’s Criminal Justice Committee.
I move,
That the Parliament agrees with the recommendation in the Scottish Government’s supplementary legislative consent memorandum to withhold consent for the UK Government’s Northern Ireland Troubles (Legacy and Reconciliation) Bill.
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