Lord Caine:

Moved by Lord Caine

That this House do not insist on its Amendment 20 and do agree with the Commons in their Amendments 20A and 20B in lieu.

20A: Clause 13, page 11, line 9, at end insert—“(3A) The Commissioner for Investigations must ensure that each review, whether or not a criminal investigation forms part of the review,”

20B: Clause 13, page 13, line 14, at end insert—“(2B) If particular questions were included in the request for a review (see section 11(1)), the final report must include—(a) the ICRIR’s response to those questions, if and to the extent that it has been practicable to respond to them in carrying out the review in accordance with section 13;(b) for each question to which it has not been practicable to respond, a statement of that outcome.”

My Lords, I beg to move Motion A and will speak also to Motions B and C.

We have debated these issues at great length since this Bill was introduced in your Lordships’ House in July 2022. I will therefore speak briefly to the remaining issues today. I have always been the first to acknowledge the challenging nature of this legislation and how it requires some very difficult and finely balanced political and moral choices. The Government have, however, continued to listen and sought to strengthen the legislation. Since July last year, I alone have had more than 80 meetings on legacy issues, mostly in Northern Ireland, but also in Ireland, the US and of course in your Lordships’ House. My right honourable friend the Secretary of State has also had a large number of meetings on these issues.

Motion A1, regarding the conduct of reviews by the commission, raised a number of important issues, and I am extremely grateful to the noble Lord, Lord Hain, a distinguished former Secretary of State, for the manner in which he has engaged on these matters. This engagement has resulted in a number of key amendments to strengthen this aspect of the Bill. This includes amendments expressly to confirm that the Commissioner for Investigations, when exercising operational control over the conduct of reviews and other functions, must comply with obligations imposed by the Human Rights Act 1998 and to make clear that the independent Commissioner for Investigations will determine whether a criminal investigation should form part of any review. The noble Lord has, therefore, already significantly influenced this Bill during its passage, and I genuinely thank him for that.

Respectfully, however, I would suggest that the content of the noble Lord’s amendments has been extensively addressed by the package of amendments tabled both on Report and subsequently at Commons consideration by the Government. Indeed, my right honourable friend the Secretary of State tabled two amendments in lieu in the other place to address further the concerns raised by the noble Lord, Lord Hain, through these amendments.

The first of these amendments, Amendment 20A, clarifies that the duty to look into all the circumstances of a death or harmful conduct when carrying out a review applies no less rigorously in a case where the Commissioner for Investigations has decided that a criminal investigation should not take place. Amendment 20B emphasises the importance of the involvement of victims’ families in the review process. It does so by placing the commission under an express obligation to include in its final report answers to any questions posed by family members as part of a request for a review, where it has been practicable to obtain the requested information as part of that review. I should remind the House that both these amendments in lieu were accepted in the other place without the need for a vote.

Turning to Amendment 20D in the name of the noble Lord, Lord Hain, the Government are also unable to accept the addition of a power that would allow the Secretary of State to prescribe standards under subsection (6A) as an alternative to attempting to provide for those standards on the face of the Bill.

The Government consider it vital to safeguard the independence of the commission. This is something that we have worked very hard to do, and to strengthen, during the Bill’s passage, in direct response to a number of points made in your Lordships’ House. In our view, any such power as set out in the noble Lord’s amendment would run directly counter to this objective.

I am grateful to the Minister for accepting this intervention and I thank him for his generous remarks earlier. The point that he has not so far made, and which I hope he will acknowledge, is that the amendment says that it would be by affirmative resolution. In other words, it will require proper consideration by both Houses. My concern in the amendment, as I will explain, is that this Bill can be further improved over time in the light of experience and the views of victims’ groups.

I thank the noble Lord, although I think my point stands. Throughout the passage of the Bill—in response to criticisms, when it was brought from the other place, that the Secretary of State had too many powers vested in him—we have sought to divest powers and to strengthen the independence of the commission. Whichever procedure is used in this House, this amendment seems to me to be running in the opposite direction. I also remind the House that the Bill already contains a provision in Clause 35 requiring the Secretary of State to review the performance of the new commission by the end of its third year of operation.

I turn next to the issue of conditional immunity, which I readily accept is the most difficult and challenging element of this legislation, but which, in the view of this Government, is essential if the new processes which the legislation establishes are to have a chance of working. I am grateful as always to the noble Lord, Lord Murphy of Torfaen, for his alternative proposal, instead of insisting on the wholesale removal of conditional immunity. Having been passed in your Lordships House by 12 votes, this was decisively overturned in the elected House by 92 votes—far more that the Government’s actual majority in the other place. As I have said, conditional immunity is, in this Government’s view, an important mechanism to help the independent commission to fulfil its functions.

I briefly remind the House that the aim of the Bill is simple and straightforward: to provide more information to more people in a shorter timeframe than is possible under current mechanisms, to establish the facts of what happened to the families who wish for that, and to help society both to remember the past and to look forward to a more genuinely shared future.

I understand that the aim of Amendment 44E in the name of the noble Lord, Lord Murphy of Torfaen, is to give family members a role in whether immunity should be granted. In the Government’s considered view, that would critically undermine the effectiveness of these provisions in their principal aim: the recovery of information for families. For example, the “public interest” consideration element in condition D would lead to uncertainty as to the circumstances in which immunity will be granted, undermining the clear and transparent approach that we have sought to develop.

To ensure that the commission can obtain as much information for families as possible, we need to ensure that the right incentives are in place for individuals to come forward and provide that information. The possibility that eligible individuals who co-operate fully with the commission could be prevented from obtaining immunity is highly likely to act as a significant disincentive for individuals to disclose information.

As the House is well aware from our numerous debates over many months, the commission will grant immunity from prosecution only if individuals provide an account that is true to the best of their knowledge and belief. We have developed a more robust test for immunity in which that account must be tested against any information that the commission holds or can access. The commission must, as a result of amendments in your Lordship’s House, take reasonable steps to secure additional information needed to test the truthfulness of an account.

If an individual does not provide a truthful account of their actions that could be passed to families or does not participate in the immunity process at all, immunity will not be granted and that individual will remain liable for prosecution, should the evidence exist. Where prosecution takes place, should a conviction be secured, an individual will not be eligible for the early release scheme under the Northern Ireland (Sentences) Act 1998—again, as a result of amendments in this House.

Similarly, while I acknowledge the sentiment behind introducing the so-called licence conditions again under Amendment 44E, I respectfully suggest that the Government have sought to address these issues through amendments that were agreed on Report. They send a clear message that, once immunity is granted, individuals who are convicted of offences that could impede reconciliation will lose that immunity. In our view, that approach strikes the right balance between providing sufficient certainty regarding the effect of a grant of immunity and ensuring that there are appropriate consequences for those whose behaviour after being granted immunity is not compatible with the fundamental aims of this legislation. The alternative tabled by the noble Lord, Lord Murphy, would not support an effective information recovery process, and I therefore ask that the noble Lord does not insist on his Motion B1.

Lastly, the legislation as originally introduced gave the Secretary of State a power to write in the date for “the relevant day” in respect of the cessation of inquests and criminal investigations. However, the clarity brought forward by amendments on Report removed the requirement for defining “the relevant day”. Amendment 119A is therefore entirely technical in nature and seeks to remove that power as it is no longer necessary.

I express my gratitude for the manner in which noble Lords across the House have engaged with, scrutinised and sought to improve the Bill. I pay particular tribute to the Opposition for their patience and encouragement. I add, as I was unable to do at Third Reading, my thanks to officials who have worked tirelessly behind the scenes and put in an incredible amount of work on this legislation. My thanks go to them, to parliamentary counsel for the standard and quality of amendments that they drafted and to the officials in the NIO and Whitehall who have worked on the Bill.

In conclusion, I ask noble Lords not to insist on Motions A1 and B2 and instead to agree with the Commons in their amendments in lieu under Motions A, B and C. I beg to move.