I am very grateful to noble Lords for their contributions on this group of amendments. I will start with Clause 7. As the Committee knows, the Government’s overriding objective is to put in place mechanisms that have the potential to deliver better outcomes for those most affected by the Troubles, particularly victims and survivors, while seeking to help society look forward. The Bill is designed to help achieve those objectives.
The primary focus of this legislation is effective information recovery. The commissioner will conduct investigations for the purposes of providing answers to those who seek them. Central to that is Clause 7, which creates restrictions on the use of material against a person in criminal proceedings where that material was obtained by or provided to the ICRIR—that acronym of which the noble Baroness, Lady Smith of Basildon, is so fond—by that person. This is very much in line with the approach for information recovery included in the Stormont House agreement in 2014 and is extremely important in avoiding the creation of a disincentive for people to come forward and provide information to the ICRIR. In the Stormont House
agreement there were similar provisions on evidence given to the ICIR, as was. It is very much in line with previous approaches to this issue.
The clause does not affect the use of material in proceedings brought against any other person, so it would be possible for a witness to provide information about an individual who was involved in a death or serious injury and for that information to be used in any subsequent prosecution against that individual. Equally, the clause does not affect the use of material obtained by a designated ICRIR—I am just going to say “the commission”—officer, for example when exercising police powers. This would ensure that the content of an interview given by a suspect while under caution, as part of a criminal investigation, could be used in criminal proceedings in the normal way.
I hope that goes some way to addressing the concerns of my noble friend Lord Weir of Ballyholme in respect of Clauses 7 and 23. If not, I am more than happy to sit down with him with my officials and go through it in greater detail, well in advance of the next stage of the Bill.
6.15 pm
The amendment in the name of the noble Baroness, Lady O’Loan, deals with the five-year limit. We believe that five years is a reasonable limit for families or survivors to request a review into a death or serious injury. This five-year limit will also apply to individuals who want to come forward and apply for immunity of their own volition. The time limit will ensure that individuals have sufficient time to consider their engagement with the commission, while rightly providing the body with sufficient certainty within which it will be best able effectively to manage its caseload and conclude its work in a timely manner.
I agree with my noble friend Lord Weir of Ballyholme that making this open-ended would be mistaken and risk prolonging the work of the body, perhaps indefinitely. The Stormont House agreement envisaged that the work of both the HIU and the ICIR—the information recovery body—would be wound up within five years: they would conduct all the investigations and information recovery processes within five years. This Bill says that families have five years in which to approach the new commission. Thereafter, the commission will be able to deal with the caseload for as long as it exists. This is going much further and being more generous than the Stormont House agreement.
I cannot remember who asked about preparatory work and the starting time for the five-year period, but it is from commencement of the commission. The five-year period begins with the coming into being of the actual body and does not start with the commencement of the Bill; it is from commencement of the operation of the body.
My noble friend Lord Dodds of Duncairn raised an important point. The family, the Secretary of State or the Attorney-General for Northern Ireland can refer cases within a five-year period. Once referred, there are no time restrictions on referring conduct to prosecutions, as long as the body remains in operation.
I turn to the amendment probing our definition of serious harm, tabled by the noble Baroness, Lady Suttie. The remit of cases that the commission will
consider will clearly be wider than that of previously proposed bodies, including in the Stormont House agreement, which looked only at deaths. The commission will look not just at deaths but at serious injuries which occurred during the Troubles. A number of noble Lords referred to the concerns of the victims’ commissioner on this matter. I have met the victims’ commissioner twice in the past fortnight, so I am well aware of his views.
I turn back to the Bill. As set out in Clause 1, the detail of this definition is intended to help potential applicants to have a good sense as to whether their level of injury and therefore case would be accepted by the commission. Where an Article 3 procedural obligation arises in relation to a case not involving either death or harmful conduct causing
“serious physical or mental harm”
under Clause 1(6), the Secretary of State for Northern Ireland has the power to request that the ICRIR carries out a review. One of the points brought out by the debate is the difficulty of drawing up comprehensive lists in this area. This is an honest attempt to be as comprehensive as possible. I take on board the comments of the noble Baroness, Lady Smith of Basildon, and the powerful points made by the noble and right reverend Lord, Lord Eames, who made a very effective contribution. I will take this away and look at it again.
On the repetition of reviews that the noble Baroness, Lady Hoey, sought to address in her amendment, Clause 11(7) says that
“the Commissioner for Investigations … must ensure that the ICRIR does not do anything which duplicates any aspect”
of a previous review unless duplication is deemed absolutely necessary. We agree with the noble Baroness in her intent that there should not be endless duplication of previous reviews, but we are confident that the legislation as drafted will ensure that does not happen.
The noble Baroness referred in passing to the McKerr group of cases in Strasbourg. I have signed off responses to the Council of Europe on these cases over many years, so I can assure her that the Northern Ireland Office is far from inert or inactive in defending the UK Government’s position on these matters.
Turning to the amendment from the noble Lord, Lord Hain, on Operation Denton, we are very much aware of Denton’s unique status as a cross-border thematic review following on from the Barnard judgment in 2019. We are aware that Operation Denton intends to conclude its work, as the noble Lord reminded the Committee, by spring 2024. Where the outcomes of such operations are imminent, the practical effect of the Bill should not be to prevent the timely transmission of information to families. While we do not see the need to reference specific reviews in the legislation, we are open to considering further how best we can ensure that the legislation delivers this priority. Again, I am content to discuss this matter further with the noble Lord and the others who signed his amendment, including the noble Lord, Lord Hogan-Howe. I am very grateful to him for his words about the Royal Ulster Constabulary, which I think echoed my own from the previous debate. The issue of resources is covered by a later group of amendments, so I will respond to that point then.
Transparency is covered by the amendments from the noble Lord, Lord Browne of Ladyton. We agree with him on the importance of transparency as a principle encompassing this process, which is why the commission will be under a duty to issue a publicly available family report in each case where a review has been carried out as a result of a family request or a request by the Secretary of State or others listed in the legislation. But we are concerned that transparency must be balanced with other considerations such as natural justice, the public interest in identifying perpetrators and the wishes of families.
There is nothing in the legislation to prevent reviews being carried out in public, but we consider that the extent to which they are is probably best left to the commission to determine. We also consider it important that, as far as appropriate, the commission’s decision-making policies and practices are explained publicly, and we will want to see this achieved through the commission’s work. It is important that the commission follows best practice in how it communicates publicly in order to provide transparency, but also in how transparency is provided through engagement with families, victims and survivors.
On the noble Lord’s amendment dealing with the obligation to answer questions, the Government’s view is that we agree with the intention of the amendment but that it is not necessary because the commission can already require an individual to attend at an appointed time and place and to provide information. This will include the provision of information orally, including answering questions.
In conclusion, and in asking noble Lords not to press their amendments in this group, I stress again that I am very happy to continue discussing all the issues in this group following Committee and in advance of Report.