Part of Northern Ireland Troubles (Legacy and Reconciliation) Bill - Report (1st Day) – in the House of Lords at 7:30 pm on 21 June 2023.
There are circumstances where setting aside the prospect of a prosecution, if it is for the greater good of providing more information to victims and survivors that will help society to move on, can be justified.
On the noble Baroness’s other point, I think she referred—I hope she will forgive me if I did not hear her quite right—to recourse to human rights remedies. The Bill does not remove the right of individuals to bring challenges under the Human Rights Act 1998, and that could include judicial review of decisions taken by the ICRIR in relation to the conduct of reviews. As a public authority, the ICRIR is under a duty to act compatibly with human rights obligations, something that we will probably talk about more in the next group of amendments.
I recognise that this is a hugely challenging and difficult area. I suggest that we have to step back and make a realistic assessment of what we can achieve. It is 25 years since the Good Friday/Belfast agreement was reached, it is 29 years this year since the first ceasefires, and of course it is well over 50 years since the start of the Troubles themselves. We must be honest about what we can realistically achieve for people in circumstances where the prospects of prosecutions and convictions are vanishingly small. To quote again from the letter that the noble Lord, Lord Murphy, signed back in 2018,
“experience suggests that it would be a mistake to expect that judicial outcome in any but a tiny percentage of the crimes that have not already been dealt with. Most of the cases were not easy to investigate immediately after they were committed and the passage of time—up to 50 years—has only made the chances of a successful outcome much less likely”.
For many, unfortunately, that is the uncomfortable reality of the situation in which we find ourselves.
In those circumstances, the Government’s objective is to provide greater information, accountability and acknowledgment to victims and families in a more timely manner and to more people—I emphasise “more people”—than is possible under current mechanisms. The way that we do that is by creating an effective information recovery process. The ICRIR will conduct reviews for the primary purpose of providing answers for those who want them, and will grant immunity from prosecution only if individuals provide an account that is true to the best of their knowledge and belief. This is difficult, but it is a crucial aspect of the information recovery process. It is why Clause 18 and conditional immunity are central to this legislation and, in the Government’s view, should not be removed.
Given the range of issues discussed in this group, I will unfortunately have to contradict my earlier comments about being brief and make a slightly longer speech on a group of amendments that took well over an hour to debate. However, I will try to be as brief as possible and respond thematically while setting out the changes that we have brought forward to strengthen the immunity process.
On Clause 21, the commission is already under a duty to consider all relevant information that it holds when forming a view on the truth of a person’s account as part of their application for immunity, including information obtained through a related review. I am going further by tabling Amendments 76, 77 and 78. They will remove Clause 21(4) from the Bill, which many interested parties asked me explicitly to do, and introduce a new duty to require the commission to take reasonable steps to secure information relevant to the truthfulness of an individual’s account when applying for immunity.
I am further strengthening immunity provisions by introducing circumstances in which immunity may be revoked, something that was not in the original version of the Bill. I have therefore brought back Amendments 16, 17, 90 and 167, creating a new offence for those who choose wilfully or recklessly to mislead the commission when providing information. Individuals who are granted immunity will automatically lose it if they are convicted of wilfully or recklessly misleading the commission as part of their application. People convicted of this offence could also go to prison for up to two years and face an unlimited fine.
I understand the concerns about the glorification of terrorism and that those granted immunity could go on to encourage or glorify terrorism in their communities. In respect of glorification, the noble Lords behind me will have heard my comments about the Member for North Belfast and his attendance at a particular event in south Armagh the weekend before last, which are a matter of record.
Responding to the amendments tabled by the noble Lord, Lord Dodds, on this matter in Committee, I have brought forward Amendments 64, 65 and 89 to ensure that a grant of immunity must be revoked if an individual is subsequently convicted of terrorism offences or offences connected to terrorism committed after immunity was granted. The offender will also be precluded from reobtaining immunity for offences within the scope of the revoked grant. This seeks to address a number of concerns raised by Amendment 63 in the name of the noble Lord, Lord Hain—I do not know the reason for the noble Lord’s absence today but, whatever it is, I wish him a speedy return to your Lordships’ House. I am generally sympathetic to the noble Lord’s amendment, which would introduce licence conditions on those granted immunity. I would go so far as to suggest that the Government’s amendments share a similar objective and send a clear message that, once immunity is granted, individuals who are convicted of offences that could impede reconciliation will lose their immunity.
In terms of the conditions set out under proposed new subsection (14B) of Clause 18, there is a degree of overlap with my Amendments 64, 65 and 88. Offences covered by this amendment include those listed in Schedule 1A to the Counter-Terrorism Act 2008, as well as other offences determined by a sentencing court to have a terrorist connection. Offences listed in Schedule 1A to the 2008 Act include a wide range of offences under the Terrorism Act 2000 and the Terrorism Act 2006, as well as other related offences. These include offences relating to fundraising, involvement in terrorist funding arrangements, the encouragement of terrorism and disseminating terrorist publications. It also includes some offences that are similar to those in Section 13 of the Terrorism Act 2000, which was referred to by noble Lords behind me, such as membership of a proscribed organisation, inviting or expressing support for a proscribed organisation, and encouraging terrorism.
Through Amendment 88, I have also clarified that the commissioner is able to refer for possible prosecution conduct which constitutes “connected” offences within the meaning of the Bill. These are offences which do not themselves meet the Bill’s definition of “serious offence” but are nevertheless factually connected to such offences, for example because they form part of the same incident. This would allow the commission to refer evidence of sexual offences which were connected to a death or serious injury to prosecutors, if that came to light during an investigation into a death or serious injury.
As a reminder to your Lordships, I am intending to oppose the question that Clause 19 stand part of the Bill. This is because I propose moving provisions made by Clause 19 to the new schedule titled “No immunity in certain circumstances”, introduced by Amendment 65. This schedule will bring together these provisions and those relating to the revocation of immunity mentioned before. Moving Clause 19 into the schedule is intended to make this already complex legislation easier to follow, by bringing exceptions to the duty to grant immunity together into one place.
Amendment 60 makes it clear that where a person applying for immunity is subject to an ongoing prosecution, immunity may not be granted if there is a risk that it might prejudice that ongoing prosecution.
I turn next to the notion of incentives for engaging with the commission. I have therefore retabled Amendments 159, 160 and 161 to disapply the Northern Ireland (Sentences) Act 1998 for future convictions. This means that individuals who choose not to engage with the commission and are subsequently convicted of an offence will not be able to apply for early release; they will be liable to serve a full sentence. I know the noble Baroness, Lady Hoey, referred to this in her comments but, with respect, I think she was referring to the Bill as currently drafted and not as amended. My amendment makes it very clear that anybody who is convicted of an offence and has not been granted immunity under this process will be subject to a full sentence, which, given the nature of the incidents that we are looking at, could mean a very long time in prison.
This approach, in our view, gives us a better chance of maximising the amount of information we can obtain from people who engage with the commission, through ensuring that those who choose not to engage and are subsequently convicted will be liable to that full sentence. Alongside this, I have retabled Amendment 146 to increase the financial penalty for non-compliance with the commission from up to £1,000 to up to £5,000.
I am sympathetic to the intention behind Amendment 18 in the name of the Baroness, Lady O’Loan, in seeking to leave out Clause 7 because, all things considered, we would want as much information obtained by the ICRIR as possible to be available in any future criminal proceedings. But it is important to the efficacy of the information recovery process that information cannot be used in criminal proceedings against those individuals who provide it as part of the immunity process or in response to a notice issued under Clause 14, relating to the supply of information. This is a crucial aspect of encouraging the provision of information and, in the case of supplying information under Clause 14, it provides an important legal safeguard of the right against self-incrimination—important because the clause contains a power to compel testimony, a power that police constables do not have.
To be absolutely clear, Clause 7 does not restrict the use of material in criminal proceedings against anyone other than the person who provided it; and where Clause 7 does not impose restrictions, normal rules on the admissibility of evidence in criminal proceedings would apply. In cases where people have not been granted immunity, because they have either refused to engage or not provided an account that the immunity requests panel determines is true to the best of their knowledge and belief, the ICRIR has the necessary policing powers, such as interviewing people under caution. Clause 7 would not prohibit the transcript of an interview under caution from being adduced as evidence against a defendant in the normal way.
It is worth reminding the House that this arrangement is not unique. The Attorney- General can give an undertaking that information collected during a public inquiry can be inadmissible in any subsequent criminal proceedings. This was the case during the Saville inquiry into the events of Bloody Sunday, as noble Lords will recall, and in the Stormont House agreement, which made it clear that any information provided to the then ICIR could not be used in criminal proceedings at all.
On a similar note, I turn to discussing Amendments 9, 29, 59, 61 and 62 in the name of the noble and right reverend Lord, Lord Eames, to whom I always listen with the greatest of respect and admiration. The Government’s view on his amendments can be summarised as follows: to get as much information to families as we possibly can, we need to ensure that the right incentives are in place for people to come forward. That is why we have developed a test for immunity, in which an individual must provide an account that is true to the best of their knowledge and belief. That account must be tested against any information that the ICRIR holds and, as a result of Amendment 76, which the Government are bringing forward, the ICRIR must take reasonable steps to secure information to test the truthfulness of any account. This is the most effective way to get as much information to families as possible about what happened to their loved ones. If an individual decides not to provide a truthful account that could be passed to families, or does not participate in the immunity process at all, immunity will not be granted and that individual will remain liable for prosecution should the evidence exist.
Touching briefly on the referral of conduct to prosecutors, I understand the rationale behind Amendment 59A in the name of the noble Lord, Lord Dodds of Duncairn, but it is not necessary. If an individual is not granted immunity because the account they have provided is not deemed to be true to the best of their knowledge and belief, and if there is sufficient evidence that an offence has been committed, we expect the commission to refer that case to prosecutors. However, given the age of some of these cases, and to ensure that we can manage the operational burden on prosecutors, it would not be proportionate to require a referral in every case.