It is complicated. Clause 18 provides that the commission can grant immunity for not only all identified offences but
“all serious or connected Troubles-related offences which are within a description determined”
by the ICRIR. Will the Minister tell us what that means and what types of offences are envisaged by these provisions?
Clause 18 does not provide that the commission must investigate whether there is information available which may undermine or assist the verification of P’s account. The commission will have to make the decision on the basis of the information supplied by P, the information already in its possession and P’s statement that to the best of his knowledge and belief it is true.
Clause 18 is fundamentally flawed. It is in contravention of our legal and moral obligations. It is actually offensive to those who are expected to believe that the perpetrator has fulfilled his obligation to provide complete information. My experience as Police Ombudsman for Northern Ireland, and even as chair of the Daniel Morgan Independent Panel during my service on the independent steering group for Kenova, has shown that perpetrators very often do not tell the whole truth even when they are swearing that that is what they are doing. Their information is frequently disproved by other available information when the necessary investigation occurs.
One of the most questionable things about the Bill is that, under Clause 18 and government Amendment 85, and the new schedule to follow Schedule 4, a perpetrator of Troubles-related sexual offences, which includes attempted sexual offences, cannot be granted immunity but immunity will be available for murder, and for things such as dropping concrete blocks on people’s limbs, shooting them in the knee so that they will live their lives with constant pain and disability, or other forms of torture. Paramilitaries were known for torturing people to confess to that which they had not done so as to justify their subsequent murder, with bodies left mutilated and naked on country roads as a warning to others, or even concealed for ever so that
they became disappeared. These are the kind of offences for which the Government intend to grant immunity from prosecution in return for information. The big question is whether the commission would ever really be in a position to know that the whole truth, or even a semblance of the truth, had been provided, even if the proposed amendments are accepted. For this reason, Clause 18 should not form part of the Bill.
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While I have no doubt that Clause 18 should be removed from the Bill, like other noble Lords, I have sought to try to mitigate the worst effects of these measures, because that is what we must do. I support Amendment 112 to Clause 18 in the names of noble Lord, Lord Hain, and others. Had they not got there before me, I would have tabled such an amendment. Amendments 113, 115 and 119 to Clause 18 in the name of noble Lord, Lord Browne, to which I have put my name, would require the commission to be satisfied that any grant of immunity would be compatible with human rights et cetera. That is a very significant requirement. I also support Amendment 114 in the name of the noble Lord, Lord Dodds, though I think that it might be improved by the inclusion of a requirement to investigate and then, where appropriate, to submit a file to the prosecution service. I support Amendments 120 and 121 in the names of the noble Baronesses, Lady Suttie and Lady Ritchie. My own Amendment 122 is designed to ensure that there is consideration of all identified possible Troubles-related offences arising from P’s conduct and which were disclosed by P, because I think that Clause 18(10) is possibly ambiguous.
It is most important that there is a provision in the Bill for the revocation of immunity. I think that has now to some degree been accepted by the Government. My Amendments 123 and 126, also in the names of the noble Lords, Lord Murphy and Lord Hain, and the noble Baroness, Lady Ritchie, provide for revocation where it can be shown that P has not actually complied with the requirements for the grant of immunity in the first place.
The Government’s opposition to Clause 19 standing part, to be replaced by government Amendments 125, 139 and 140, provides for revocation by a court after a court has held that an offence has been committed under the new offence created in government Amendment 139. That amendment involves making a false statement. Will the Minister explain whether a statement which is true but incomplete is a false statement which would attract a penalty on conviction? Moreover, will the Minister consider how an accusation of making a false statement might be proved beyond a reasonable doubt in an environment in which it is so difficult to prove so much of what happened in the past and in which there are such limitations on the disclosure of information, particularly sensitive information, which may well be needed to prove a perpetrator’s involvement in a crime to which he has not admitted? Disregarding the inadmissibility of various forms of evidence, as referred to by the noble Lord, Lord Hogan-Howe, many very expensive and lengthy trials collapsed in the past when the evidence which was available which might have led to a conviction could not be presented because of the need to protect lives and sources. What will be different about this situation? If a conviction is
impossible because of matters like this, under the Government’s amendment there can be no revocation of immunity.
Amendment 124, in the name of the noble Lord, Lord Hain, provides an alternative: the revocation of the grant of immunity by the commission for specified conduct by P. Amendment 127, in the name of the noble Lord, Lord Dodds, provides for revocation where an offence of encouragement of terrorism or glorification of terrorism is subsequently committed. That may require some consideration as to the legitimate expectations of a person who is granted immunity that they will not be prosecuted. I am not sure about that; perhaps the Minister and the noble Lord, Lord Dodds, could help us.
In reality, in most cases, all that any perpetrator has to do is sit it out until the end of the five-year period provided for in the Bill, and then they know that the murders and the life-changing injuries which they inflicted, and the serious mental health issues which were caused by their actions across the generations, will no longer be a cause for concern. Nothing can happen to them. The measures in this Bill, in particular Clauses 18 and 34, could mean, among other things, that ultimately any murderer or torturer, whether IRA, loyalist, state agent or member of the security forces, could not be prosecuted unless the commission agreed to an investigation within the five-year period at the request of a family member or a victim/survivor. Is it possible that these people could be subjected to pressure not to seek investigation by the perpetrators? The commission has no power, such as the police and the Police Ombudsman for Northern Ireland have, to initiate an investigation because there is a serious matter which requires to be investigated.
For this reason, with the noble Lords, Lord Murphy of Torfaen and Lord Hain, and the noble Baroness, Lady Ritchie, I have tabled Amendment 130 to Clause 21. It would impose an obligation on the ICRIR to investigate and seek information, which would allow a more informed decision to be made about whether P has actually told the truth—something which in most cases may well be incapable of verification.
Our subsequent Amendment 131 removes the Secretary of State’s power under Clause 21 to give guidance to the ICRIR about how to operate the immunity system. It would leave the immunity requests panel, which comprises the chief commissioner—a person who holds or has held high judicial office—and two ICRIR officers, who must be senior lawyers, as provided for in Clause 22, to make its decisions with complete and unfettered independence. If this immunity system is to operate at all—and I do not believe that it should—it will be vital that there can be no suggestion that the independence of the immunity requests panel is in any way compromised by political interference.