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Yes.

Thank you, convener, and good morning.

The United Kingdom Government’s Northern Ireland Troubles (Legacy and Reconciliation) Bill and the subsequent LCM were refused consent when they first came to the Scottish Parliament, in October 2022. The UK Government has now proposed amendments to the bill, which we received in full only on 8 June. We do not consider that the amendments satisfy the concerns that resulted in the previous LCM being refused consent by the Parliament.

In its current form, the bill still allows for the granting of immunity to people who apply for it, even though they might have committed serious offences during the troubles. In effect, the bill potentially means an amnesty for those who have committed offences such as murder or crimes involving abuse or torture, including where those crimes were conducted by agents of the state. Therefore, the Scottish Government recommends that the Parliament maintain its position of withholding consent to the amended bill.

Our reasons for doing so focus on three key areas: the ability of victims to seek justice; the Secretary of State for Northern Ireland’s powers to amend devolved legislation; and the impact on the Lord Advocate’s responsibilities.

First, we do not believe that the amendments to the bill will increase the opportunity for those families and communities who have been directly affected by the troubles and are seeking justice to obtain justice or that they will ensure that those who committed offences during the troubles are appropriately held to account. We are cognisant of the fact that it is not only the Scottish Government that has concerns in that regard; indeed, the bill was opposed by all parties in Northern Ireland. In addition, the UK Parliament’s own Joint Committee on Human Rights has previously raised doubts on the bill and its compatibility with the European convention on human rights. Further, the Northern Ireland office of Amnesty International UK has accused the UK Government of treating victims with “contempt” and has stated that the amendments

“do nothing to address the fundamental flaws with the bill.”

Secondly, 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 is to respect devolution, it should not exercise powers within the devolved competence of the Scottish Parliament and Scottish ministers unless doing so is specifically agreed.

Finally, we are concerned that the bill, even with its amendments, continues to encroach on the role of the Lord Advocate as the independent head of the systems of criminal prosecution and investigation of deaths in Scotland. The Lord Advocate’s independence predates devolution and is protected by section 48(5) of the Scotland Act 1998. However, some of the powers that are proposed for the independent commission that will be created by the bill undermine that independence and breach a fundamental cornerstone of our criminal justice system.

In previous iterations of the bill, it was the case that, even when immunity was not granted, the Lord Advocate could be impeded by the commission refusing to refer appropriate cases to the Lord Advocate’s office. I therefore welcome the amendment that is proposed by the UK Government that means that the Lord Advocate will now be able to direct the commission to refer such a case to the Lord Advocate’s office.

However, as I have previously mentioned, the commission is also given powers to grant immunity from prosecution for the most serious of offences. In practice, that interferes with the independent decision making of the Lord Advocate in such cases, effectively making the Lord Advocate’s decision on whether to be able to prosecute subject to the decision of another person. The bill continues to cut across the Lord Advocate’s role. In effect, it is the commission, not the Lord Advocate, that will decide whether a prosecution can be raised.

It is for those reasons—our concerns about the effect that the bill will have on those who have suffered and the lack of regard for the role of the Lord Advocate and the protections that are enshrined in the Scotland Act 1998—that the Scottish Government cannot recommend consent to the bill in its present form.

I suppose that I would take issue with what might be inferred to be a slight on the accuracy of the Government’s reporting. Nonetheless, what the Lord Advocate communicates to the Parliament is, of course, a matter for her. I will certainly ensure that the request for further information is communicated.

Yes.

Yes, but it is a UK Government bill, so it is my job to point out where it has implications for our devolved responsibilities in Scotland. Issues in and around immunity, so far as they impact on Scotland, would be for the Lord Advocate. Access to justice issues would be a matter for our courts.

I am cognisant of the fact that all political parties in Northern Ireland have raised concerns about the bill, but it is my duty to be clear to the Parliament about my objections in terms of the matters in and around the LCM and the fact that the bill continues to cut across the powers of the Lord Advocate. That is a cornerstone—it is not a technical matter but a fundamental cornerstone—of how our criminal justice system works and of how deaths are investigated in Scotland. As members would expect, the Scottish Government has strong views on the ability of the Secretary of State for Northern Ireland to not even inform, never mind not consult, us if he steps into devolved areas. These are more than technical matters; they are fundamental.

I would have to seek advice on that. There has certainly been correspondence between the two Governments and between the Lord Advocate and the UK Government.

On an alignment of views, as I said in my opening remarks, we welcome the movement that has been made by the UK Government to reduce the impact on the Lord Advocate’s discretion and powers. Nonetheless, the commission still has the ability to grant immunity, which fundamentally cuts across the Lord Advocate’s powers.

I do not know the answer to that. Officials will keep me right, but you will understand that I would not comment on any live investigations, if there were any.

We all appreciate the intent, but the issue is about how things operate in practice.

I point Mr Findlay to the fact that the Scottish Government has some very specific concerns in relation to how devolution operates in Scotland, the powers of the Lord Advocate and the ability of people who are resident in Scotland and who have been impacted by the troubles to access justice via the Scottish courts when the powers of the commission close off opportunities to seek redress, either civilly or criminally. Those are concerns for us here, in Scotland.

We are not a lone voice in expressing concerns—I point the member to the concerns that have been raised across political parties in Northern Ireland with respect to the bill.

As the Cabinet Secretary for Justice and Home Affairs, I trust our court system and our system of prosecution. While we will continue to seek to engage the UK Government on further amendments, as you would expect us to do, the bottom line is that the UK Government can proceed with the bill. Mr Greene will be aware of my dissatisfaction with that type of arrangement, but that is the reality that we are in. I suppose that I would dispute the premise of aspects of his question.

Okay—that is fine.