I am grateful to the noble Viscount, Lord Brookeborough, for his intervention. Much of what he says will of course be dependent upon the way in which the criminal investigation, if there is one as part of a review, is carried out. But there is a duty to take reasonable steps to establish the truthfulness of an individual’s account by looking at all the relevant information that is available. If an individual’s account is deemed to be not truthful to the best of their ability, they will not qualify for immunity.
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The noble Lord, Lord Dodds, made a couple of points, one of which was about people coming back to the UK to live out their years. If there is an active prosecution for someone who has fled the UK, they will not be able to apply for immunity. If there is no active prosecution, they would be able to apply, but in the same way that anyone living in the UK would. They would have to provide an account that is true to the best of their knowledge and belief.
The noble Lord, Lord Dodds, also referred to sentencing for post-1998 crimes under Amendment 93A. This was subject to debate in the other place, as he mentioned. The Bill sets out that those who do not co-operate and who are consequently convicted will face a full sentence, as I have set out. Those who are granted immunity will, as a result of government amendments, be subject to clear consequences if they engage in criminal behaviour following a grant of immunity, as I think I made clear in response to earlier amendments.
I wish to clarify, in response to Amendments 20, 27 and 69 in the name of the noble and right reverend Lord, Lord Eames, that requesting a review is not a process for which legal representation is required. Family members can already obtain help or representation from whomever they wish when making a request for a review. I suggest that these amendments are therefore unnecessary.
I will touch very quickly on Amendments 71, 72, 73 and 74, tabled by the noble Lord, Lord Browne of Ladyton. I question the practicality of an immediate nomination by the chief commissioner of another person who is also judicially qualified to perform the same or all of the immunity functions, because there is no mechanism to appoint an additional judge. We have set out that the remaining commissioner roles are to be advertised and subject to open competition. This would not be workable if the field was restricted to the judiciary. We would also need to consider the right way to manage the risk that too early a nomination could mean that the person called upon to act may no longer be eligible or available. Our system ensures that an eligible and available person is identified.
Noble Lords will be relieved to know that I am nearly at the end of my speech. The ability of ICRIR officers to use their powers of arrest and detention as part of investigations is, with the greatest respect to the noble Baroness and others, key to ensuring compliance with our international obligations. I have therefore retabled Amendments 94 and 97 to remove any doubt as to the circumstances in which criminal enforcement action can be taken where immunity has not been granted and where a referral to a prosecutor has not yet been made.
In addition to allowing for the exercise of powers of arrest and detention, the amendment also ensures that the commission would be able to charge a person with an offence before a referral to a prosecutor has been made, as would be necessary in urgent cases. The amendment clarifies that those with existing powers of detention, such as the police, may continue to use those powers where they are being exercised in connection with the exercise of the commission’s functions. This would
allow, for example, a police custody officer to detain a suspect at a police station for the purposes of questioning by commission officers.
I apologise to the House for speaking at such length on this group of amendments, but there are many and I think it only right that we do justice to the importance of this challenging debate. I hope that I have answered as many questions as possible and I ask the noble and right reverend Lord to withdraw his amendment.