Northern Ireland Troubles (Legacy and Reconciliation) Bill

Debate between Baroness O'Loan and Baroness Smith of Newnham

Committee stage
Tuesday 31st January 2023 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, the amendments in this group deal with the requirements in Clause 5 to provide full disclosure of information to the ICRIR. They are intended to assist the ICRIR in its work and are quite simple, but slightly technical.

In normal circumstances, the Police Ombudsman and many other public policing authorities with criminal investigation powers are entitled to require information to be supplied by relevant authorities such as those in Clause 54, where a whole list of police organisations is given. The ones from which there is no power to require information are the Security Service, the Secret Intelligence Service and GCHQ. Clause 5 as drafted imposes a requirement that any request for information must be reasonable. That is an unnecessary restriction, as the purposes for which the information will be required are the statutory functions of investigation. If the essential amendments providing for investigation, review and immunity are accepted, this information, which will be sought by the ICRIR, will be that required for the purposes of investigation, review and immunity.

The effect of my amendments is to take that composite group in Clause 54 of relevant authorities and divide it into two: relevant authorities and special relevant authorities. Relevant authorities will have to supply information. There will be one category of relevant authority, which will be under the obligation to provide information as provided for in Clause 5, as amended by Amendments 37 and 39. That will include all the authorities listed in Clause 54 except the Secret Intelligence Service, the Security Service and GCHQ. I suggest that the House remove them from the list by accepting Amendment 191. Through Amendment 197, a new category of “Special relevant authority” would be created into which the Security Service, the Secret Intelligence Service and GCHQ would be inserted.

Imposing a requirement of reasonableness on the process of making requests for information, which can be very complicated, imposes an unnecessary hurdle. When I was Police Ombudsman, I had complete power to require information, and it was delivered. There were a few early hiccups in the process, but everyone settled into it. When I was doing the non-statutory review of the Daniel Morgan inquiry for the Home Secretary, I had no power to require information and we had endless arguments about which information should and should not be required. Those arguments cost a lot of money and took a lot of time.

If the Bill is passed as drafted, there would need to be a process for determining reasonableness and a determination as to who other than a court might determine what is reasonable. This would lead to disputes and the matter ultimately would end up in court, particularly if a relevant authority is reluctant to disclose information about, for example, the handling of an informant or the way in which physical evidence was managed. To impose the restriction of a requirement of reasonableness, which will be assessed, on the ICRIR, would impact on the perception and reality of its independence and powers. For this reason, Amendment 37 simply excludes “reasonably” from Clause 5(1). That would make it consistent with current law as it applies, for example, to the Police Ombudsman and the police. It would apply to all the authorities listed as relevant authorities, as I said, except the Security Service, the Secret Intelligence Service and GCHQ.

Amendment 39 adds to the list of those required to provide reasonable assistance to facilitate the effective use of information, documents and other material. When one gets information from policing organisations, the way in which it has previously been handled can often be very helpful, particularly if it is on a digitised account such as the HOLMES investigation accounts. If there is a requirement, as there is in Clause 5, to provide reasonable assistance, the policing organisation supplying the material would also have to provide assistance to access those databases, et cetera.

The reason I suggest that other organisations should be included under Amendment 39 is that some of the criminal offences the ICRIR will investigate or review relate to events such as the bombings in Hyde Park, Manchester, London, et cetera, which were not investigated by the PSNI but by other police forces. The clause as it stands requires only the PSNI and the Police Ombudsman to provide assistance, but I suggest to your Lordships that all the other policing organisations should be under a similar obligation. Without this amendment, those providing information as relevant authorities would not be under the same obligation as, say, the PSNI to assist in the effective use of the information. Amendment 39 is therefore designed to assist the ICRIR in conducting its investigations.

Because we have to deal with GCHQ, the Security Service and the Secret Intelligence Service, Amendment 197 suggests a new category of “special relevant authority” in which those three organisations would sit. They would be required to supply information if the request by the ICRIR was reasonable. I would prefer that they had to provide it without a reasonableness requirement, but I understand that noble Lords might be reluctant to impose an obligation on the security services to provide information. This would enable those agencies to protect national security, which is their function. To give effect to that new special category of three organisations for which there would be a reasonableness requirement, a new clause, Clause 5A, would be required. That is provided by Amendment 40.

Amendment 185 is very simple: it would include the director-general of the NCA in the list of chief officers of police for the purposes of the Bill, to enable them to assist the ICRIR. It may be that the National Crime Agency will not have material relevant to the ICRIR, but it is distinctly possible that it will. It is important that it be empowered to provide information.

Finally, I support the amendment in the name of the noble Baroness, Lady Smith, which relates to the power of the Secretary of State to make regulations under Clause 31 about biometric materials and raises the level of procedure required for such regulations to the affirmative procedure. I beg to move.

[Baroness Smith of Newnham (LD)]

My Lords, I will speak to Amendment 145 in my name, and I also support the amendments in the name of the noble Baroness, Lady O’Loan. Amendment 145 is quite different from most of the other amendments put forward to the Bill. I am aware that it might sound a bit geeky, but much legislation brought forward by His Majesty’s Government seems to include sweeping powers for Secretaries of State in whichever department. This Bill does not have quite as many egregious cases of Henry VIII clauses but with Clause 31, about retention of biometric material, there is some concern that the Secretary of State can make regulations for which there would be very little scrutiny and by which, potentially, individuals’ rights are interfered with.