My Lords, I will speak to Amendments 71 and 83, which are in my name and that of my noble friend Lady Ritchie of Downpatrick. Amendment 83 is also in the name of the noble Baroness, Lady O’Loan, and my noble friend Lord Murphy of Torfaen. I am grateful to them for their support. I too have benefited from engagement on my amendments with not only the Minister but the Bill team and his private office, and I put on record my thanks and appreciation.
Amendment 71 requires that, as far as possible, ICRIR reviews be conducted in public, providing for transparency in the conduct of reviews by that body. Transparency is not only desirable in reconciliation but a necessary precondition for it to occur. Many of the reviews that the ICRIR will be charged with conducting will have decades of mutual suspicion to contend with. My amendment to Clause 13 attempts to bring greater transparency to those reviews where possible. It is not merely a question of procedural efficiency; it will make clear to those for whom we are seeking the truth that they can be as confident as possible that there is no thumb on the scales, that the review process can be trusted, and that those tasked with handling these hugely sensitive investigations are doing so without the pressure to conform to some predetermined narrative.
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Clause 13(1) provides that:
“The Commissioner for Investigations has operational control over the conduct of reviews by the ICRIR, whether they have been … requested under section 9 or 10, or … decided on by the ICRIR under section 12.”
The amendment reflects what I have perceived to be a strongly held view that the reviews conducted by the commissioner should be transparent. Accordingly, the amendment is necessary. As I have had the benefit of engaging with the Minister and his office, I anticipate that in his response the Minster will explain that the commissioner already has this power to conduct reviews—or at least parts of them—in public where appropriate. I am afraid that this view is not universally held by experts in statutory interpretation with whom I have discussed the amendment.
In part, this interpretation is reinforced by the fact that there is a presumption in Section 18 of the Inquiries Act 2005, which is the basis of all statutory inquiries in this country, that members of the public can watch the inquiry, either in person or via broadcast. This section imposes duties on an inquiry as to the disclosure of documents and evidence to members of the public. The chair must take reasonable steps to secure that members of the public can view documents and records of evidence given to the inquiry.
The 2005 Act provides that the proceedings of an inquiry must be made public unless one of several circumstances apply. It sets out a substantial list of issues that must be considered. They are
“the extent to which any restriction on attendance, disclosure or publication might inhibit the allaying of public concern … any risk of harm or damage that could be avoided or reduced by any such restriction … any conditions as to confidentiality subject to which a person acquired information that he is to give, or has given, to the inquiry … the extent to which not imposing any … restriction would be likely … to cause delay or to impair the efficiency or effectiveness of the inquiry or … otherwise to result in additional cost”.
Amendment 83 would impose a duty to respond to questions posed by the commissioner for investigations on a person who, in the course of conducting a review, had been required to submit information under Clause 14. Clause 14 sets out various requirements for the supply of information which can be set by the commissioner for investigations. For example, subsection (2) provides that:
“The Commissioner for Investigations may by notice require a person to attend at a time and place stated in the notice … to provide information.”
However, there is no power to require such a person to respond to questions asked about the information provided. This is a gap in the powers of the commissioner that needs to be filled. Again, there is statutory provision in another important piece of legislation that does just that.
This amendment achieves the objective of making questions be asked. It is instructive to look at the Coroners and Justice Act 2009 in this regard. Schedule 5 to the Act deals with the powers of coroners, which include the power to require evidence to be given or produced, stating:
“A senior coroner may by notice require a person to attend at a time and place stated in the notice and”--
importantly—
“to give evidence at an inquest.”
So why are these provisions necessary in other inquiry legislation but omitted from this Bill? What is the Minister’s explanation—and why, if he resists these amendments, does he think that the Bill will not need these powers?