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The maximum number of judges is set out in section 1(1) of the Court of Session Act 1988. The draft order in council will increase the maximum number of judges of the Court of Session by one, from 35 to 36. Judges of the Court of Session also sit as judges of the High Court of Justiciary. An increase in the number of judges of the Court of Session has been precipitated by the recent appointment of Lady Poole as chair of the Covid-19 inquiry. Lady Poole is an outer house judge of the Court of Session on secondment to the inquiry. During the secondment, she will not be available to sit in court. However, she remains a judge for the purposes of the statutory limit in section 1(1) of the 1988 act.

As that inquiry is expected to last for several years, the Lord President requested an additional judge to meet the demands of the business in the Court of Session and the High Court. The appointment of Lady Poole to chair the Covid-19 inquiry, coupled with the current high level of court business, means that the appointment of a further judge will provide additional judicial resource during these challenging times.

The Lord President does not consider that it is possible to appoint a further series of temporary judges drawn from the shrieval bench for this period of time, as that would place additional pressure on the sheriff courts and would therefore not secure the most efficient disposal of court business.

I am happy to answer any questions from members.

It would be consistent with my previous answer, and I would just point out that the Scottish Government and Parliament did not exist at the time. Indeed, policing itself was not devolved at the time. One of the allegations was that, at a Cabinet sub-committee, there was a reference to the way in which the policing of the strike should happen in Scotland. I do not know the exact terms, but it was around the Secretary of State for Scotland being asked at Cabinet to ensure that the strike was policed in the same way as the rest of the UK. That brings us back to the accusation that was made at the time about the policing of the strike being politically directed. There were also allegations about the involvement of security services, the use of phone tapping and so on.

However, we are in no position to examine those things—they do not fall within the competence of the Scottish Parliament. Indeed, if we tried to hold an inquiry without that evidence, we would undermine the calls that I, my predecessors and others have made for the UK Government to hold an inquiry. When I recently wrote to the UK Government on this matter, I said that the very process of introducing the bill and highlighting the issue would increase the pressure for a proper public inquiry to be held. I know that it can seem like a forlorn hope to make such calls to the UK Government, but I note that it recently agreed—at last—to hold an inquiry into the treatment of people who were convicted of homosexual offences in the armed forces before 2000. It is therefore possible to achieve such an aim, and that is where our focus should be. After all, these are the people and the agencies that have the evidence.

As for your point about policing being devolved, I have already mentioned the extent to which policing records have been destroyed. That has happened sometimes for very good reasons—indeed, it is part of the process. There are what are called the 40/20 and 70/30 rules. If you reach the age of 40 and it has been 20 years since your conviction, the police will destroy the records; if we are talking about something more serious, the records will be destroyed if you reach the age of 70 and it has been 30 years since the conviction. As we do not have the records, they cannot be looked at with the rigour of a public inquiry, but, on the outstanding questions about the policing and management of the strike and its political aspects, I believe that the right focus for that is the UK Government. That will certainly continue to be my focus.

That is not covered.

No. I do not know enough of the details of the case. I know the Fishcross miners welfare club, which is no longer called that, very well. I related to you the story about things being thrown at my car, such as snowballs, in a different context. I am also familiar with Alloa sheriff court.

We cannot go into that. As I have explained already, we cannot go back, although if what you have said about Mr Tierney is correct, there are avenues of redress that can be taken forward by him in relation to that. That is the best way to do that—through the judicial system.

What we are saying is that, if somebody was travelling through a community on their way to a demonstration, to the picket line or to their work, that is included. Just to make sure—because I seem to have caused some confusion with my previous answer; it may be me who was wrong, rather than you—we will maybe get Elaine Hamilton to be specific on that.

However, I will add a point for your information. You said—and you are right—that there were very few convictions in Scotland under the Conspiracy, and Protection of Property Act 1875. According to the records that we know about, there were 16 convictions, which were solely in the Strathclyde region. At the time of the strike, the maximum penalty was £50 or three months in prison. We do not know what the disposals were.

I do not know whether Elaine Hamilton wants to add anything to clarify that, specifically in relation to travelling through an area and where we are and are not covering that.

That is a very good point. We are examining what we can do around that. The reason for the automaticity of the pardon is to make it as easy as possible for people who cannot necessarily provide evidence or documentation—in fact, we cannot provide much of the evidence and documentation. However, the idea that people really have to know that they have been pardoned is an important point.

We are looking at whether we can, first of all, work with the National Union of Mineworkers to look at its records and reach out to as many people as possible. However, there may be data protection issues in relation to that, which we will of course observe.

Beyond that, whether we can make a written statement will have to rely in some cases on people getting in touch with us, because we will not have the necessary information. We will not be able to go into the details of anybody’s particular conviction, mainly because those records are no longer held. The written letter, if we are able to do that, would make explicit the details of and qualifying criteria for the pardon, and it would it make it clear to that individual and their family that they are being pardoned. We are looking at that just now.

I can speak from my own experience of watching the events contemporaneously. I was never on the picket line, but I am pretty sure that I was involved in demonstrations, and certainly supporting activities, as a student in 1984. As I am sure the committee will remember, there was a lot of activity among students and community groups to help with miners’ welfare and so on.

Like everyone else at that time, I saw the pictures coming in from Orgreave, for example, where the policing seemed to me to be inconsistent with policing methods in Scotland. That distinction sometimes still appears to be there. For example, we might look at the policing of the recent 26th United Nations climate change conference of the parties—COP26—and the policing of the aftermath of Sarah Everard’s murder and the conviction that followed.

Policing in Scotland followed a different path even back then. However, there were allegations at the time—for example, that officers did not have numbers on their tunics and so on. I remember that there was a lot of grievance, because it was a time of heightened tensions at Bilston Glen and the other mines where there were issues. We are saying, therefore, that it was very difficult for the police, too, as they had not been put in such a situation before.

I do not have enough evidence to make a judgment on what the policing was like or where it fell down, but we know that miners were trying to defend their communities, their way of life and their livelihoods, and that led to some of the situations that happened on picket lines. For that reason, we are trying to see whether we can bring some reconciliation to the communities, and some comfort to the miners who were convicted and have had that conviction hanging around them for some time. That is the purpose of the bill; I do not pretend that it is trying to do anything else.

There are good reasons why we should not try to do a job that should be done by the UK Government. We do not have the facility to do that—we do not have the records, and the Parliament does not have the competence to look at some of those issues.

We will listen to any representations that are made. We have had substantial consultation with interested parties, mining communities, trade unions and others. As you say, there have been calls for other offences to be included. Some of those will fall under the Conspiracy, and Protection of Property Act 1875, which I am sure that we are all familiar with, which covers a wide spectrum of behaviours relating to attempting, without legal authority, to compel another person to support a strike or not go to work, which relates to your point about miners who continued to work during that time. Convictions under the 1875 act could cover the use of violence to intimidate another person or their family or damage their property; behaviour such as persistently following another person from place to place or following, along with others in a disorderly manner, another person on or through any street or road; or things such as watching, or what the 1875 act calls “besetting”, a house.

The lack of any surviving police or court records is a problem, and makes it very difficult to confirm the exact circumstances of the offences that were committed during the strike. We could not confirm, for example, the degree of violence or malice that was involved or where they actually occurred. It is also very difficult to determine the motivation behind such conduct. In some cases that have been reported, previous disputes between people were the basis for some of the things that happened during the strike.

We have extended the independent review group’s recommended criteria—for example, we are not introducing a constraint that says that someone is disqualified if they have had a previous or subsequent offence—but we do not think that it would be right to extend the pardon to those other potential offences when we cannot ascertain their details. We have tried to make the pardon applicable exclusively to miners and incidents that took place in the specified locations, or when travelling through a community to them. That is why we followed the views of the independent review group and have those qualifying criteria, although we have extended them slightly.

I do not think that the bill is the vehicle for doing that. The bill’s legacy will be the impact that the pardon has on communities. I reiterate that that will be significant. The bill is us—not the state that was in control at the time but the Scottish Government that is now established—saying that we understand the pressures that obtained at the time of the dispute and that led people into the situations that we are talking about, and that, as a society, we want to pardon that.

We have made the bill simple and straightforward for those reasons. However, you are right that other work must continue. Work started straight away. I used to work for Stirling District Council and, in its various different political guises, that council worked right from the strike to support communities such as those in Fallin and Plean. That was true throughout Scotland, so such work is not new. However, because of the time that has elapsed, the help for regeneration finds different routes. The main route that the Scottish Government takes is to support the Coalfields Regeneration Trust. We intend to commit to that.

There is no question but that it was something that impacted on communities. I note that we launched and publicised the bill at the Polmaise Murray outdoor mining museum in Fallin, which I have been familiar with for many years.

As you said, even if the miners were 100 per cent out, if there was a heavy police presence and arrests emerged from that, those people will be pardoned. Whether people were at a demonstration, on a picket line or wherever something took place in the community, those things should be captured by the qualifying criteria that we have. I am genuinely not aware of any instance of someone in Fallin being convicted for reasons that are outwith the qualifying criteria for the pardon.

I have given the reasons why we think that we should restrict the pardon in the way that we have. Our approach also makes the pardon more meaningful for the people to whom it will apply. As you will know, quite a lot of secondary picketing went on. People from one community would go to another to support it. However, the approach is legitimate and it has been taken for the best of reasons. The pardon is restricted to miners and to the qualifying offences, which will include being on a picket line or at a demonstration in the community in Fallin.

There are some categories—but I will perhaps get the officials to come back on that. We are saying that there have been calls for those kinds of offences to be included within the scope of the bill, although it is worth pointing out that the independent review group did not make that specific recommendation. A conviction under the 1875 act could cover a wide spectrum of behaviour relating to attempting, without legal authority, to compel another person to support the strike or not go to work. The use of violence to intimidate another person or their family will not be covered, for instance. It could also cover behaviour such as persistently following someone else from place to place, as we have discussed previously. We are not looking to cover that. As I have said, it could also cover the “watching” or “besetting” of a house.

The lack of surviving police and court records makes it difficult to confirm the exact circumstances that gave rise to any offences under the 1875 act that were committed during the strike, such as the degree of violence or the malice attached. That is why we have taken the position that we have taken.

I do not know whether Elaine Hamilton wants to come in to say anything in addition to that.