My Lords, I would like to say that I will try to be brief, but I fear that that might be impossible in response to a debate that has lasted for one hour and 58 minutes. I think the only debate that has lasted longer since I joined your Lordships’ House in October 2016 was on one of the amendments to the European Union (Withdrawal) Bill from my noble friend Lord Patten of Barnes, which lasted longer than two hours.
This has obviously been an extensive debate. I say sincerely that I am grateful to all those who have taken part. Noble Lords are absolutely right that these clauses and amendments go to the heart of the legislation before the Committee. I hope that noble Lords will forgive me if I take longer than normal in trying to respond to as many points as possible, in the knowledge that I will not be able to deal with everything but will try my best.
I start by expressing my gratitude to my noble friend Lord Bew for his kind words at the outset of this group some time ago. He and others who have spoken were absolutely right to draw attention to occasions in the past when quite extraordinary changes have been made to the criminal justice system in Northern Ireland: the noble Baroness referred to the decommissioning Act of 1997, the location of victims’ remains Act of 1999, and the early release scheme in the 1998 agreement and the subsequent Northern Ireland (Sentences) Act—the latter have caused so much difficulty, not least for my noble friends on the Democratic Unionist Benches. Those remind us that it is far from unknown for changes to be made to the normal process of the criminal justice system in Northern Ireland.
My noble friend Lord Bew referred to the importance of the commission following best practice in carrying out reviews and so on. I assure him that it is already under a clearly defined obligation in Clause 4(1)(b) not to do anything which
“would risk putting, or would put, the life or safety of any person at risk”.
It is the Government’s view that this safeguard is wide enough to offer protections of the kind to which he was referring.
A large number of amendments in this group, the vast bulk of them, consider the immunity process. It is worth reflecting at the outset that the Written Ministerial Statement of March 2020 and Command Paper of July 2021, both published by my right honourable friend Brandon Lewis when Secretary of State, envisaged a form of unconditional closure of cases which would apply to all Troubles-related offences, including offences carried out by members of terrorist organisations and the security forces. I am on record as saying that I do not support, and have never supported, a blanket statute of limitations. My position has not changed, so, as I said in the House last week, if the Government were still pursuing the position from the Command Paper of 2021, I would not be standing here taking the Bill through.
The point is that the legislation before us today is very different. Rather than a statute of limitations, it provides for a conditional immunity model whereby immunity from prosecution will be granted only on a case-by-case basis, and will depend on individuals providing an account that is assessed by the commission, using all the evidence available to it, to be true to the best of their knowledge and belief. I will go into some of the points raised in connection to that later. If individuals do not do so, they remain liable to prosecution should sufficient evidence exist or come to light. I want to be absolutely clear that prosecutions in circumstances where individuals do not engage and co-operate fully with the commission will still be possible.
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The Government maintain the view that the immunity process is robust, but I have heard the strength of feeling on this most serious of issues during numerous engagements with interested parties, and I am therefore bringing forward key amendments that will ensure that there are stronger incentives for individuals to engage in the truth recovery process and stronger penalties for those who do not.
Before I go on to Amendment 112, I shall respond briefly on the Kenova point, and perhaps we can take this away. The noble Lord is absolutely right that, in a technical sense, Kenova could be scaled up; I think the problem is applying the Kenova model to all outstanding cases and all cases that might be referred. For example, the PSNI Legacy Investigation Branch currently has a caseload of more than 1,000 cases. If you were to apply a full criminal standard investigation to all of them, you are looking at this process potentially taking many years indeed. That is one of the principal difficulties, but I am happy enough to talk to the noble Lord about this matter.
The noble Lord referred to prosecutions and so on within the legislation. I remind noble Lords that a number of former Secretaries of State, including Members of your Lordships’ House, wrote to the then Secretary of State for Northern Ireland in 2018 attacking the Stormont House legacy proposals that provided for prosecutions in the normal way:
“We understand why many victims and others attach great importance to the prosecution, conviction and sentencing of those responsible for the appalling loss that they have suffered … But experience suggests that it would be a mistake to expect that judicial outcome in any but a tiny percentage of the crimes that have not already been dealt with.”
That letter was signed by the noble Lords, Lord Hain, Lord Browne of Ladyton and Lord Murphy of Torfaen, and my noble friend Lord Cormack. I think there is an understanding that criminal justice outcomes would be very rare, and that is why, as I have said on previous occasions, the Government move towards the condition—