Amendment 12

Northern Ireland Troubles (Legacy and Reconciliation) Bill - Report (1st Day) – in the House of Lords at 8:00 pm on 21 June 2023.

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Lord Bew:

Moved by Lord Bew

12: Clause 4, page 4, line 31, at end insert—“(4) Before carrying out any reviews, the ICRIR must publish, and in carrying out any reviews, the ICRIR must take into account, guidelines containing best practice on the rights of those likely to be named in any reports.”Member’s explanatory statementThis new subsection makes it clear that when carrying out reviews and in the exercise of its power to make findings in reports the ICRIR will follow best practice for the due protection of the rights of any person who may be named with critical comment.

Photo of Lord Bew Lord Bew Crossbench

My Lords, I apologise for being, as they say in Northern Ireland, a little bit previous. I want to address the fairness of the functioning of the commission. My concerns on this matter, like many people in Northern Ireland and on this island, have been greatly allayed by the appointment of Sir Declan Morgan as the chair of the commission. None the less, fairness has to be at the heart of the future working of the commission. This applies both to people who might work for the state forces who come before it, and those who do not.

It has been established in recent years that good practice in such inquiries is what might be called pre-Maxwellisation. I recall the Green report to the Commons Treasury Committee of 2016, which laid out ground rules for handling people who come before a commission in guaranteeing fairness. I know that to some, these will be seen as exaggerated concerns, but we have talked a lot about the international requirements and obligations that the United Kingdom has under Article 2. There is also an international requirement in, I think, Article 6 to protect reputation and to be fair to the reputation of individuals.

I wish to return to the theme—the Minister has listened already with some responsiveness to it—of the importance of guaranteeing as much as we can that when the commission is set up, it works as fairly as possible in respect of the rights of the individuals who may be coming before it.

Photo of Baroness Ritchie of Downpatrick Baroness Ritchie of Downpatrick Non-affiliated

My Lords, with permission, and in the unavoidable absence of my noble friend Lord Hain, I will speak to Amendment 31, upon which a vote will take place on Monday. The amendment is in his name and those of the noble Baroness, Lady O’Loan, the noble Lord, Lord Blair, and my noble friend Lord Murphy of Torfaen. This amendment seeks to turn a terrible Bill into one that could at least act in the interests of victims, rather than the perpetrators of horrendous crimes of violence, by inserting as a method of bringing some form of justice a model based upon Operation Kenova, led by former Chief Constable Jon Boutcher. This model was referred to by the noble Baroness, Lady O’Loan.

Operation Kenova has the interests of victims, survivors and their families at its core, in stark contrast to the current legislation, in which victims and survivors are barely mentioned and to which they are universally opposed, along with each and every political party in Northern Ireland, as well as the Irish Government. In Operation Kenova, there is a proven model of the way to deal effectively with the legacy of Northern Ireland’s violent past.

After his remarks on this amendment in Committee, my noble friend Lord Hain wrote a detailed letter of rebuttal to the Minister. Sadly, the Minister’s reply completely failed to rebut any of my noble friend’s arguments. While acknowledging the excellent work of Operation Kenova, the Minister, the noble Lord, Lord Caine, made a number of assertions that simply do not stack up. The first was that, in some cases, a full Kenova-type investigation would not be appropriate if a family simply wanted information that could be readily found. The second was that an Operation Kenova model could not be upscaled and it would take too long to deal with the legacy case load. The third was that it would not be value for money. Each of these contentions does not stand up to scrutiny.

On the first, this circumstance has arisen with Operation Kenova, and it has been dealt with in a sensible and pragmatic way by the Kenova team, as the family requested. It is simply not an issue. Indeed, Kenova has been praised by victims’ groups precisely because of its effective truth recovery, providing information never before revealed on what actually happened to loved ones. In fact, Jon Boutcher visited a gentleman who lived quite close to me and whose son was brutally murdered. He did so before the gentleman, sadly, passed away, to explain the circumstances in which his son was murdered. That person was deeply grateful for that information and then, sadly, died some days later.

On the other contentions, I urge the Minister to take note of the independent National Police Chiefs’ Council’s review of Operation Kenova. The reviewers are recognised nationally as experts in investigations, especially homicide investigations—they deal in analysis, not assertion. On upscaling to deal with outstanding legacy cases, they said that

“the Terms of Reference … included the question as to whether Kenova might offer a ‘scalable’ model upon which to build any future Legacy Investigative capability for Northern Ireland. Having exhaustively reviewed its strategy, governance, partnerships and all facets of its operations, the review team firmly believes that Kenova would form the best possible foundation for this purpose”.

In his evidence to the Northern Ireland Affairs Committee on 2 September 2020, Jon Boutcher, who leads Kenova, said that legacy cases could be addressed within “five to 10 years” because Operation Kenova has developed processes that can now carry out comprehensive investigations expeditiously, not least because it now has unfettered access to security and police files that have hitherto been hidden. This is the considered view of a hugely experienced and highly regarded senior investigator.

In the past, the Minister has alluded to the fact that Jon Boutcher himself said that aspects of Operation Kenova could not be scaled up. He was referring to the level of his personal engagement with families. Although that would not be feasible with a larger case load, there is no reason why the principle of quality contact with the investigation team and senior staff could not be scalable.

On value for money the NPCC said:

“The review team have identified several examples of exceptional innovation, organisational learning and national best practice which should be considered in other legacy, and similarly complex, inquiries in the future. These outstanding operating practices have undoubtedly contributed to the excellent ‘value for money’ that Kenova represents when compared with other large-scale investigations”.

But perhaps most tellingly for those who want to see legacy dealt with, with the interests of victims and survivors at its heart, the review said:

“Any future Historical Investigation Unit or similar would benefit immeasurably from building on the exceptionally strong reputation that Kenova has achieved and by adopting its leadership and investigative model throughout. Discussions with several key stakeholders, including representatives of victims’ families and survivors from all sections of the community, in fact revealed that one of the main challenges for any alternative investigative initiative in this area would be that it would inevitably risk being constantly negatively compared with Kenova, with the confidence of victims’ families and survivors being undermined as a consequence”.

In short, in Operation Kenova, there is a working model that is compliant with Article 2 of the ECHR, unlike the Bill. It is a working model that gives value for money and is scalable, as referenced in the NPCC review above. It is also a working model that has the confidence of families whose cases it has dealt with, and of Northern Ireland political parties. From his long service in Northern Ireland, the Minister will know that achieving a model backed by pretty well every victims’ group and every political party in Northern Ireland is unique. It is also a working model that is delivering on legacy, which the Bill so badly fails to do. If the Government continue to resist this amendment, which has wide cross-party and Cross-Bench support, I will put it to a vote on Monday. In that respect, I commend Amendment 31 to the House.

Photo of Baroness O'Loan Baroness O'Loan Crossbench 8:15, 21 June 2023

My Lords, I will speak to my Amendment 13, which is also in the name of the noble Baroness, Lady Ritchie, and which simply requires the removal of the word “reasonably” from Clause 5. The noble Lord, Lord Hogan-Howe, is unable to be with us today, but he associates himself with my remarks.

The Government told us that one of the purposes of the Bill is to provide families with information that was not previously available to them, and another is to gather all investigative and review functions within the ICRIR. This was always the proposal under the Stormont House agreement, and I have no difficulty with it, except for the way in which it is done and the immunity clause. But the powers accorded under the Bill do not provide to the ICRIR the access to information that will be necessary to obtain the information that families need, without lengthy judicial reviews and threats of judicial reviews, which have bedevilled inquiries such as the Saville inquiry and, indeed, the Kenova investigation.

In normal criminal investigations, there is a proviso that an investigator will not do anything which would prejudice national security or put someone’s life at risk. There is law that deals with this. The law also provides mechanisms which include a power to recover information, such as the search process when a warrant has been obtained. For example, police will seize all the computers in a house to determine whether the contents of any of them may be relevant to the matter under investigation. Those are general statutory investigation powers. Those charged with criminal investigation also have powers to require the provision of information from agencies and individuals. For example, under Section 17 of the Police Reform Act 2002 there is a simple duty on every chief constable and local policing body to provide information to the IOPC. Similarly, Section 66 of the Police (Northern Ireland) Act 2000 says:

“The Chief Constable and the Board shall supply the Ombudsman with such information and documents as the Ombudsman may require for the purposes of, or in connection with, the exercise of any of his functions”.

There is no qualification, simply a duty to provide information. However, this Bill as drafted states that a relevant authority

“must make available to the ICRIR such … information … documents, and … other material as the Commissioner for Investigations may reasonably require”.

This provision applies only to information which the ICRIR reasonably requests. Of course, an investigator must always act reasonably and in compliance with the law. However, there is no process for which a chief constable may, for example, say, “No, it’s not reasonable for you to make that request for information”. I had those conversations in the early days of my tenure as Police Ombudsman. I was told, for example, that it was not reasonable for me to ask for sensitive information, such as information held by Special Branch—now the Intelligence Branch. I was able to point to the law, which said that the chief constable

“shall supply the Ombudsman with such information … as the Ombudsman may require”.

That is how it is in criminal investigations. It is not required that the investigator demonstrates the reasonableness of any request for information.

The Minister has said that a requirement that information shall be reasonably required is to be found in other statutes. He cited one, the Finance Act 2008, so I looked it up. Section 113 of and Schedule 36 to the Finance Act 2008 provides that an officer of His Majesty’s Revenue and Customs can require a taxpayer to provide information reasonably requested by the officer for the purposes of collecting a tax debt owed by a taxpayer. There is a big difference in the powers required to collect an unpaid tax debt and those required to investigate a murder, as is evidenced by the current state of the law, which provides necessary protections for privacy in appropriate circumstances under the GDPR and the Data Protection Act, for example, but also empowers criminal investigators to access information. This is the proper working out of UK compliance with its obligations under the Good Friday agreement and the European convention.

If an agency could respond to a request for information by the ICRIR by challenging the reasonableness of that request, there would be inevitable and very lengthy disputes, possibly—indeed probably—involving judicial review, about why what the ICRIR was asking for was reasonable. The reality is that the investigator—the ICRIR in this case—may be in possession of material justifying the reasonableness of the request for information, but that material cannot be disclosed at this particular point in time without compromising the integrity of the investigation. The result is that an agency may be unaware of the material which the investigator holds, but it may be very aware that information which is held by that agency is highly compromising of the agency and may indicate how it came about that, despite an agency, for example, being aware of a proposal to murder someone, it did not intervene to stop that murder. It has happened.

The necessary unqualified powers to compel the production of documentation, especially documentation held by the other agencies, security intelligence services and police intelligence units, will not be available to the ICRIR because of how the Bill is drafted and the definition of sensitive information. The proposed powers to identify and gather information will also be subject to veto by the Secretary of State under the extensive provisions of Clauses 29 and 30. Access to information could be severely curtailed through the exercise of powers conferred on the Secretary of State in this Bill, because it gives the Secretary of State powers to give guidance about how the ICRIR is to identify sensitive information such as that held by police intelligence units and how that information is held and handled, et cetera, and even to create new criminal offences in relation to such matters.

Last year, the European Committee of Ministers exposed serious concerns about the Bill, and the Commissioner for Human Rights has now said that the amendments proposed by the Government do not sufficiently allay those concerns. This emphasised again that it is crucial that the legislation, if progressed and ultimately adopted, is in full compliance with our convention obligations and will enable effective investigation into outstanding cases.

The Committee of Ministers has called on the Government, first, to ensure that the Secretary of State for Northern Ireland’s role in the establishment and oversight of the ICRIR is more clearly circumscribed in law, in a manner that ensures that the ICRIR is independent and seen to be independent. Secondly, it has called on them to ensure that the disclosure provisions unambiguously require full disclosure to be given to the ICRIR. Thirdly, it has asked that they ensure that the Bill adequately provides for the participations of victims and their families for transparency and public scrutiny, which is fundamental to Article 2. It has again stressed the importance for the success of any investigative body of gaining the confidence of victims, families of victims and potential witnesses.

I also put my name to Amendment 31 in the name of the noble Lord, Lord Hain, supported also by the noble Baroness, Lady Ritchie, who has spoken at length about it, as well as the noble Lords, Lord Blair and Lord Murphy. The noble Lord, Lord Hain, is unable to be with us today. I shall support that amendment if a Division is called. I do not think that I need to describe the reasons for it, but I shall say that the National Police Chiefs’ Council has said that the Kenova model could effectively be scaled up for the purposes of the ICRIR.

I regret that I cannot support Amendment 28 in the names of the noble Baroness, Lady Hoey, and the noble Lords, Lord Bew and Lord Godson, because it requires that, when a family is seeking a review or investigation, they will have to be able to show that, if there is to be a review, and there has previously been an investigation or an inquest, for example, the ICRIR should not decide to grant a review unless there is compelling new evidence. To require a family to provide compelling new evidence would be to deprive them of their Article 2 rights to investigation, in particular in older cases where investigations and inquests were not as thorough or impartial as they are now. It is not the role of a traumatised and bereaved family to gather compelling new evidence. They have neither the powers nor the access to do so. That is the job of the investigator—in this case, the ICRIR.

Photo of Baroness Hoey Baroness Hoey Non-affiliated

My Lords, with regard to Amendment 28 in the name of myself, the noble Lords, Lord Bew and Lord Godson, I tabled similar in Committee and have changed it to take note of what the Minister then said, deleting the parts that he found objectionable, which related to family requests for reinvestigations. I hope that what remains the Minister will find acceptable, given that the purpose of my amendment to Clause 11 is to ensure that there will not be duplication by the ICRIR in relation to previous investigations, despite what the noble Baroness, Lady O’Loan, has said, without compelling new evidence. This is the concept that was used in the overseas operation Act, and I cannot understand why it cannot be used in this legislation.

If the previous investigations listed in the amendment, such as those by a public inquiry, HET, or the police services Legacy Investigation Branch are not added to the Bill, thus narrowing the ICRIR’s potential range, I repeat what I said at Committee: namely, that the ICRIR could end up reinvestigating every one of the nearly 4,000 deaths, the cost will be £1 billion at least, not the budgeted £250 million, and the process will last for many years.

We now have legacy practitioners—a new force in Belfast, not the victims’ relatives, as the Bill naively believes—using the concept of collusion, or “collusive behaviours”, to use the phrasing chosen by the Police Ombudsman, who can design a case to reinvestigate any death. Collusion can be alleged in relation to all loyalist killings and, indeed, all republican ones, by virtue of the use of security force agents in both paramilitary groups, never mind the alleged investigatory failings that the Strasbourg court complains of.

Rewriting history is about the complexity of the Troubles being distorted into a single concern with state killings, which of course republicans and their allies then use —slowly, drip by drip, case by case—to construct the narrative of the IRA being a popular resistance force that had no alternative to killing. The Committee of Ministers at the Council of Europe, when enforcing European Court judgments on the so-called McKerr line of cases, refers only to killings

“either during security force operations or in circumstances giving rise to suspicion of collusion in their deaths by security force personnel”.

There we have it. Strasbourg has therefore, in effect, accepted a republican perspective on the matter for the past 20 years. This means that some 90% of victims’ families are told by the human rights court that they do not count.

I fear that the following will happen when the ICRIR opens next year if this amendment is not added to the Bill: the IRA Army Council will almost certainly not be tempted by the immunity opportunity, nor will the loyalist paramilitary groups. There will be a small number of requests for reviews from distressed relatives, but the vast majority of requests will be from legacy practitioners who will demand rigorous reinvestigations—in fact, new criminal investigations in hundreds of cases—often on the flimsiest of allegations, unless prevented by this amendment.

The judicial reviews and civil suits will also keep on coming. However, recent court judgments in London and Belfast on the temporal scope of ECHR Article 2 procedure, already referred to, suggest that demands for reinvestigation are no longer being obliged, both for time-lapse reasons and the non-application of the Human Rights Act to deaths before 1982.

The Belfast agreement never envisaged what has happened on legacy. About victims, it simply said:

“The achievement of a peaceful and just society would be the true memorial to the victims of violence”.

The Northern Ireland parties failed to deal with the matter and it has passed, as usual, to Westminster. The only credible legacy initiative was former Chief Constable Sir Hugh Orde’s Historical Enquiries Team, but that was needlessly closed down.

This amendment is designed to stop unintentional ICRIR mission creep. Without a mention in statute that narrows access and curtails repeat applications, the commission’s workload will only grow. We need finality and I am afraid that, without my amendment, we will not get it.

I also want to say something about Amendment 31, which I will not be able to support if it goes to a vote on Monday. This amendment from the noble Lord, Lord Hain, and others is, in essence, the alternative legacy policy promoted by the former Chief Constable of Bedfordshire Police, Jon Boutcher, head of Kenova, and other former Metropolitan Police officers in your Lordships’ House.

Everyone talks about Kenova, but I guarantee that most Members of the House of Lords do not know anything about the detail of Kenova. It is important to spell out that it is in fact four separate operations commissioned by the PSNI following particular judicial rulings on which, to date, £37 million has been spent, without any prosecutions—although 30 files and a million pages of evidence on MI5, Army and IRA personnel are with the PPS. It started out as one inquiry into the late Freddie Scappaticci, or “Stakeknife”, about the IRA and the use of informers by the Security Service. Then there was Operation Denton, a review—but not an investigation—about the Glenanne Gang and alleged loyalist collusion with the security forces. The other two Kenova commissions are much less complex, so I will not go into them because of the time.

Jon Boutcher, as I am sure many of your Lordships know, was a detective superintendent in the Metropolitan Police Service in July 2005 when, in Vauxhall, then my constituency, we had the terrible tragedy of Jean Charles de Menezes, a Brazilian electrician mistaken for a suspected Islamist terrorist, who was shot dead by armed police officers on a stationary Tube train at Stockwell station, just down the road. Cressida Dick was in charge of that operation on 22 July and Jon Boutcher was one of the silver commanders in the control room. The Met’s plan had been for SO12, a surveillance team, to apprehend its suspect after he left his apartment building. SO19, comprising firearms officers, was also deployed. A series of events then led to tragedy: confusion in the control room, SO19 having to stop for petrol, SO12 failing to arrest the suspect before the Tube station and SO19 catching up with him only as he entered the station.

The Menezes family, with London supporters who lobbied me—I got to know many of them during that time—brought a human rights case to Strasbourg. The actions of the Met’s senior officers that day may be followed in the 2016 court judgment Da Silva v United Kingdom. It is clear from that that the Met was a police service that believed in “shoot to kill” when it came to possible suicide bombers. The family’s case at Strasbourg was not on Article 2 substantive obligations—the right to life—but Article 2 procedural obligations. Possibly inspired by Northern Ireland cases, they argued unsuccessfully that there had been an inadequate investigation into the death. The court, however, found the investigation in general to be adequate.

Kenova is about extensive reinvestigations that would never happen in London and which our courts increasingly suggest are pointless because of the time lapse and the fact that Article 2 of the ECHR does not apply to such elderly events. I put it to your Lordships’ House that we must not be starstruck, almost, by Kenova and think that it is the solution to everything. The Kenova investigations are about a small subset of victims: those whose relatives were agents or informants, who, sadly, can never be told what went on, and those who allege collusion with state forces, who will never be satisfied with any report.

I am very pleased that the government amendment usefully refers to the UK Human Rights Act, the HRA, and not to the ECHR, as the noble Lord, Lord Hain, does. Amendment 31, if passed, would ensure that we spend millions of pounds and not actually achieve very much, other than to ensure that state forces—the RUC, the Army and all those who worked so hard to defend innocent people—will be the ones who will be chased and pursued. So I will not be voting for that on Monday and I hope the Minister will respond to what I said on my first amendment, Amendment 28.

Also, does the Minister have any comment on what Minister Varadkar said today? He is the Minister in the Republic of Ireland, for noble Lords who have not heard of him, and he is now threatening that an interstate case at Strasbourg will be taken against the UK Government if this legacy Bill passes. I would be very grateful if the Minister commented on that.

Photo of Lord Blair of Boughton Lord Blair of Boughton Crossbench 8:30, 21 June 2023

My Lords, it is unusual for me to start by saying that I could not disagree more with what I have just heard from the noble Baroness, Lady Hoey. I was Metropolitan Police Commissioner at the time of the death of Jean Charles de Menezes, and it was a tragedy. I do not actually understand the connection that she is making with what is happening in relation to Operation Kenova.

Photo of Lord Blair of Boughton Lord Blair of Boughton Crossbench

I shall stop there on that point.

I support Amendment 31 in the name of the noble Lord, Lord Hain, and the other signatories to it. It concerns Operation Kenova—the multiple investigations being carried out by ex-Chief Constable Jon Boutcher into some 200 murders on both sides of the conflict in Northern Ireland. I last spoke on Kenova on 24 January this year, when I read into the record of the House comments made by Jon Boutcher the previous October. I will not repeat all of that, except to remind noble Lords of his summary of his focus, being on the Provisional IRA,

“which committed these murders and whether steps were, or were not taken by the security forces before these abductions and murders occurred to protect people”.—[Official Report, 24/1/23; col. 161.]

I am not an expert on Northern Ireland, but I bring before the House two aspects of my own professional experience which I believe are of relevance. First, I have investigated murders and I know how difficult it is to tell families of victims that the trail has run cold and the investigation is, at least for the time being, being closed. Secondly, I have led some very large and complex investigations and watched many others. Never have I seen such a comprehensive, transparent and outstanding investigation as Kenova. Mr Boutcher has meticulously worked to gain the trust of families and has submitted a number of files, as we heard during the debate, to the Northern Ireland prosecution services. The submissions await a decision and the families know that. To discontinue all those inquiries by an Act of Parliament in these Houses seems to me to be an extraordinary step.

Of course, like many others in the House, I am a great supporter of the truth and reconciliation process in South Africa, but that process took place instead of investigations, not after they had been completed. Moreover, entering into such an approach has to be a voluntary process; and, having come this far, from a position of deep cynicism to trust in Kenova’s approach, I doubt whether many families will wish the completed investigations into these deaths just to be put to one side. With respect to the Minister, he knows that the continuance of Kenova is supported by politicians of every stripe in Northern Ireland, a position which I believe is not a common occurrence on any topic, let alone one as explosive as this. Any suggestion that the Kenova model is too expensive is risible, given all the suffering and all the costs that have preceded it.

I hope that when the House returns to this subject next week, it will ask the Government to think again.

Photo of Baroness Suttie Baroness Suttie Liberal Democrat Lords Spokesperson (Northern Ireland)

My Lords, this has been an interesting short debate. These Benches fully support Amendment 31, tabled by the noble Lord, Lord Hain, and signed by the noble Lords, Lord Blair and Lord Murphy, and the noble Baroness, Lady O’Loan; if it is pushed to a vote on Monday, we will certainly support it. As other noble Lords have spelled out so clearly—perhaps not the noble Baroness, Lady Hoey, who has reservations, but certainly the noble Lord, Lord Blair, and the noble Baroness, Lady Ritchie—the Operation Kenova model, with investigations to criminal justice standards, has been proven to work and should and could provide an effective alternative to the approach being adopted by the Government. I still hope that the Government will move further in this direction and support at least the spirit of Amendment 31. If they will not, it would be very useful to hear why from the Minister in his concluding remarks.

Photo of Lord Murphy of Torfaen Lord Murphy of Torfaen Labour

My Lords, I very much appreciate the amendments put forward by the Government in this group, which are a genuine attempt to improve the Bill. In particular, Amendments 30 and 33 make it clear that the commission must act in a way that is consistent with the Human Rights Act and therefore the European Convention on Human Rights. The problem is that the Government need to ensure that the people who take these matters very seriously are convinced, when it is said that the legislation is compliant, that it actually is. That is a job of work that the Minister must undertake in the weeks ahead.

I very much support Amendment 31 in the name of my noble friend Lord Hain, ably moved by my noble friend Lady Ritchie. I have met Jon Boutcher on a number of occasions and have been deeply impressed by his work and by him personally. Operation Kenova has achieved a very compassionate and efficient way of dealing with these issues, not just in a couple of cases but in anything up to 200, as the noble Lord, Lord Blair, has said. I hope the Government seriously consider my noble friend’s amendment on this issue, because it would be more generally acceptable than the present system.

Photo of Lord Caine Lord Caine Parliamentary Under-Secretary (Northern Ireland Office), Lord in Waiting (HM Household) (Whip) 8:45, 21 June 2023

My Lords, I am grateful to all those who have spoken. We have debated compatibility with the European convention at length, as recently as the last group. I do not propose to revisit all those arguments in response to this group.

I have, however, brought back Amendment 32 to make it clear in the Bill that the independent commissioner for investigations will determine whether a criminal investigation should form part of a review. I have also tabled Amendments 30 and 33 expressly to confirm that the commissioner, when exercising operational control over the conduct of reviews and other functions, must comply with obligations imposed by the Human Rights Act. In addition, I will place a duty on the commission to publish a statement outlining how each review was conducted as part of its final report, thus enhancing the transparency of its work through Amendments 34, 49, 50 and 55.

The legislation rightly ensures that the independent commission, via the commissioner for investigations, has the flexibility to determine whether and when it is appropriate to use police powers during its review. An approach requiring a criminal investigation in all cases, as would be required under Amendment 31 in the name of the noble Lord, Lord Hain, would remove such flexibility and significantly increase the likely time to complete reviews, further delaying the provision of information to many families. I do not intend to go over the contents of my letter to the noble Lord again; it is there for everybody to see.

As I have said in the House on numerous occasions, I recognise the work carried out by Operation Kenova and the way in which Jon Boutcher, to whom I pay tribute, has developed strong relationships with the families of victims. There are many features of Operation Kenova’s work that the Government consider capable of being built on, should the commission choose to do so. However, as I have put on record numerous times, the Government view it as vital that the commission is free to determine its own approach to these complicated matters. That would be constrained if we were to adopt the amendment of the noble Lord, Lord Hain.

In response to amendments tabled by the noble Baroness, Lady O’Loan, in Committee, I have brought forward Amendments 14 and 15 to Clause 5. These would extend the list of authorities which may be required by the commissioner for investigations to provide the commission with assistance for the purposes of, or in connection with, the effective use of information, documents and other material provided by those authorities under Clause 5.

On the issue of Maxwellisation, I have introduced a series of amendments to Clauses 15 and 17, in response to discussions with the noble Baroness, Lady O’Loan, requiring the chief commissioner to share only relevant sections of a report criticising a person rather than the full draft report and allow them to make representations about that material.

I am sympathetic to what Amendments 39 and 41 in name of the noble Baroness, Lady O’Loan, attempt to do. We explored this in Committee and the noble Baroness and I discussed these matters yesterday, so I do not intend to go over all the arguments again. Suffice it to say that, in our view, the current drafting ensures that the chief commissioner can modify material as well as exclude it, so in our view the amendments are unnecessary.

In response to Amendments 12, 37 and 47 tabled by my noble friend Lord Bew, the ICRIR is already under a clearly defined obligation, in Clause 4(1)(b), not to do anything that would risk putting, or would put, the life and safety of any person at risk. It is the Government’s view that this safeguard is wide enough to offer sufficient protection of the rights of anyone likely to be named in reports, and therefore my noble friend’s amendment is unnecessary.

In respect of Amendment 13 to Clause 5, again in the name of the noble Baroness, Lady O’Loan, it is not unusual for legislation giving a power to require the provision of information to be subject to the requirement of reasonableness. Reasonableness is a widely used and understood term, which is included in other legislation. She referred to one example which I provided, in the Finance Act. I could add the paragraph 19ZA of Schedule 3 to the Police Reform Act 2002, which uses the same reasonableness requirement formulation in the equivalent power of the director-general of the Independent Office for Police Conduct. The Inquiries Act 2005 gives the chairman of an inquiry the ability to require a person to provide evidence and documents to the inquiry panel within such a period that appears reasonable to the inquiry panel. Section 17(2) of the Criminal Appeal Act 1995, which gives equivalent powers to the Criminal Cases Review Commission, is also drafted in those terms, so there are a number of other examples.

In practice, the commissioner for investigations will decide, based on the facts of the particular review, what information can reasonably be required of a relevant authority. If there is a dispute, and the relevant authority considers the commissioner has acted unreasonably in imposing the requirement, the matter will ultimately have to be resolved by the courts. I believe the noble Baroness, as we discussed recently, is reading too many restrictions into the Bill, where do they not exist and there is no intention for them to exist, and where our purpose is to get as much information into the public domain as possible.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

I thank the Minister for giving way. Does he accept that, in the examples he gave of the time within which information might reasonably be provided, and the powers of the chair of a tribunal who is reasonably requesting information, there is a distinction between a reasonable request for information and a request for information to be provided within a reasonable time? We have seen, in the current judicial review, the difficulties faced by the Government in relation to the information held in respect of the Prime Minister which is required by the Covid inquiry.

Photo of Lord Caine Lord Caine Parliamentary Under-Secretary (Northern Ireland Office), Lord in Waiting (HM Household) (Whip)

If I am honest, I am not entirely sure I follow the point the noble Baroness is making, but I stand by the point I have just made, that our intention is not to impose unnecessary restrictions through this legislation but to allow the commission to access information and be in a position to put more information about what happened into the public domain than has been the case.

Turning to Amendment 28 in the name of the noble Baroness, Lady Hoey, I understand the intention behind this amendment, but Clause 11(7) already requires the commissioner for investigations to ensure that the commission does not do anything that duplicates any aspects of a previous review, unless duplication is deemed absolutely necessary. We believe this is a proportionate approach that ensures the resources of the commission are not wasted through unnecessary duplication, while providing limited discretion for the commission where that might be required. In our view, the effects of the amendment tabled by the noble Baroness would be to hamper the ability of the commission to conduct reviews which might lead to the effective provision of information to many families, which would run counter to a key objective of the legislation. I therefore urge noble Lords not to press their amendments.

Photo of Lord Bew Lord Bew Crossbench

I beg leave to withdraw Amendment 12.

Amendment 12 withdrawn.

Clause 5: Full disclosure to the ICRIR

Amendment 13 not moved.