Parliament will certainly have an opportunity to scrutinise the guidance as published. As for the timescale, that will be dictated by how quickly the nominations of the commissioners are made. However, we do not take this lightly. The guidance is very important and everyone needs to know where they stand with it, which is why I welcome the fact that it is going to be published. I will get some clarity for the hon. Gentleman on whether the guidance will be done by regulation.
The guidance referred to in clause 2(5)(a) is intended to assist the commission in the discharge of its duty under clause 2(3)(a), which is not to do anything that would prejudice national security. However, we recognise that, while many of the same principles may apply to the protection of national security interests in Ireland as in the United Kingdom, it is not appropriate for the Government to issue detailed guidance about national security matters in another jurisdiction, and it was never the Government’s intention to attempt to do so.
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To avoid any doubt about the matter, we propose to remove the reference to Ireland in clause 2(5)(a). The practical effect of the amendment will be that the Secretary of State will be required to issue guidance to the commission in respect of its functions in relation to information that, if disclosed, might prejudice national security, but the guidance will not deal with information that might prejudice the national security interests of Ireland. The guidance will continue to cover information that might put at risk the life or safety of any people.
As provided in the Bill, the commission will still be required to have regard to the guidance, and the Secretary of State will remain able to amend or replace the guidance as necessary. The guidance will still be published when issued. I can also confirm that the guidance will be published and a copy will be placed in the Library of each House. The guidance will be made available to the commission before it begins its operation.
Clause 2, as amended, seeks to secure an appropriate balance between the provision of important safeguards in relation to the exercise of the commission’s functions, and ensuring that the commission has the independence and discretion it needs to deliver effectively on those functions.
Clause 3 confers on the independent reporting commission immunity from suit and legal process, and inviolability of its official archive and premises. In practice, that means that the commission will not be subject to legal challenge or process, including civil claims and judicial review. It also means that its premises and archive cannot be subject to search of requisition, as is the case with a diplomatic mission.
Those legal privileges are routinely given to international organisations and, indeed, there are a number of recent examples in the Northern Ireland context, including the Independent Monitoring Commission, the Independent Commission for the Location of Victims’ Remains and the Independent International Commission on Decommissioning.
The legal privileges serve two key purposes. First, they ensure that the commission cannot be compelled to disclose material it holds, including the identities of those who have provided information. That is crucial to ensuring that the commission is able to reach out to a wide range of sources in pursuit of information on paramilitary activity and thus fulfil its role in promoting the ending of it. IMC commissioners recognised that point in their final report, stating:
“These immunities were fundamental to our ability to operate.”
In addition, the legal privileges are essential to protecting the independence of this new body. They ensure that it cannot be challenged by those who may be the subject of its reports, or by the sponsoring Governments.
Clause 3 also enables the commission to waive its legal privileges where it deems appropriate. That is key to the proportionality of the provisions.