Guidance

Explainers relating to the Northern Ireland Troubles (Legacy and Reconciliation) Bill

Explainers relating to the Northern Ireland Troubles (Legacy and Reconciliation) Bill

• From: Northern Ireland Office
• Published: 25 May 2022

Applies to Northern Ireland

1. Structure of the Body and Oversight

What the Bill does

• The Bill establishes a new body, the Independent Commission for Reconciliation and Information Recovery (ICRIR).
• The ICRIR is to be led by a panel of up to five Commissioners, including a Chief Commissioner and a Commissioner for Investigations.
• The Commissioner for Investigations will be responsible for the ICRIR’s investigative functions and carrying out investigations into Troubles-related deaths and cases of serious injury. *The Chief Commissioner will chair the judicial panel that will take decisions regarding requests for immunity. Only individuals who hold or have held high judicial office may be appointed as Chief Commissioner. The Chief Commissioner may authorise another Commissioner or ICRIR officer to carry out any of their duties with the exception of their responsibilities as Chair of the immunity requests panel.
• The ICRIR will also be required to produce and publish a historical record of all Troubles-related deaths that are not subject to a request for a review, consisting of all publicly available information relating to these deaths.
• The ICRIR must produce and publish an annual report detailing, among other things, its finances, number of reviews requested and carried out, number of reports produced and the number of applications for immunity and their status.
• The Secretary of State for Northern Ireland must carry out a review of the ICRIR’s performance of its functions by the end of the ICRIR’s third year of operation.

Why are we doing this?

• Successful implementation of these proposals will be dependent on establishing an information recovery body that is fit for purpose, with decisions regarding information recovery and immunity being taken by individuals with the right expertise and authority  to take those decisions.
• The success of the ICRIR relies on its ability to function independently of the Government, which is why it will be established  as an arm’s length body. The Secretary of State will be responsible for appointing the Commissioners who will in turn be responsible for the running and delivery of the functions of the ICRIR.
• The requirement for annual reports and a review by the Secretary of State will ensure the body is accountable and as transparent as possible, while maintaining its independence.

2. Criminal Investigations, Prosecutions and Sentencing

What the Bill does

• Any criminal investigations into Troubles related incidents by any organisation other than the ICRIR will be barred from the date the legislation comes into force. This applies to any organisation across the UK.This means all ongoing investigations will stop, except where they are being carried out in support of an ongoing prosecution. An investigation which must be stopped under the Bill may be referred into the ICRIR.
• Prosecutions for Troubles-related offences not involving death or serious injury, or which are not connected to offences involving death or serious injury, will also be barred.
• Any existing cases that have reached the stage where a decision has been made to prosecute will be allowed to continue to conclusion.
• Any person in prison having been convicted of a scheduled or equivalent Troubles related offence may apply for immediate release on licence.

Why are we doing this?

• We want the ICRIR to be responsible for investigating Troubles related incidents so that police forces can get on with day to day policing and the Police Ombudsman can focus their resources on current policing issues.
• The ICRIR will be fully equipped with the necessary expertise and full policing powers so that they can carry out robust investigations for the primary purpose of information recovery, as well as being able to refer cases directly to prosecutors if there is evidence of an offence for which someone has not been granted immunity.
• There may be some cases in which a decision to prosecute has been taken before the relevant provisions of this Bill come into force. Those cases will continue and individuals will not have the opportunity to apply for immunity from prosecution. Although a person subject to ongoing prosecution for, or with a conviction for, a Troubles-related offence will not be able to apply for immunity in respect of that offence, in line with our firm focus on reconciliation they will be able to apply for immediate release from prison.

3. Requests for Investigations

What the Bill does

• The Bill tasks the ICRIR with carrying out reviews of Troubles-related deaths and cases of specified serious injury.
• The ICRIR will not investigate every death or case of serious injury that resulted from the Troubles. The Commission will be demand led and only take forward reviews when requested, provided that the request is made in line with requirements in the legislation.
• Requests for reviews may be made by the following:
  • Close family members (definition provided within the Bill) may request a review of a death caused directly by the Troubles. If there are no close family members then the Commissioner for Investigations may determine whether it is appropriate for another family member to make the request for a review;
  • Survivors of serious injury (definition provided within the Bill) caused directly by the Troubles may request a review into the conduct that resulted in that injury;
  • The Secretary of State may request a review of either a death or case of injury; and
  • The Attorney General for Northern Ireland, the Advocate General for Northern Ireland and the relevant coroner in NI or England and Wales or sheriff/procurator fiscal/Lord Advocate in the case of Scotland may request a review of a death.
• Requests for reviews may only be made within the first five years of the ICRIR’s operation. Any requests made after five years will not be taken forward.
• When making a request for a review, individuals will be able to include specific questions about the death or case of serious injury. The Commissioner for Investigations is then under a duty to consider these as part of their investigation.

Why are we doing this?

• The ICRIR will be demand led and therefore will only take forward a review where the family of the victim or survivor of serious injury have come forward to request it.
• The five-year window for requests for reviews will ensure the ICRIR’s workload remains deliverable and it is able to focus its resources on cases where there is an active interest and desire for further investigation and information.
• The Secretary of State will be able to refer cases to the ICRIR to ensure that the Government is able to fulfil its ECHR obligations and deliver Article 2/3 compliant investigations.

4. Process of Investigations

What the Bill does

• It will be for the Commissioner for Investigations to decide the form and manner in which a review is taken forward and, provided they are satisfied that the request for a review is appropriate and in line with requirements in legislation, the Commissioner for Investigations is under a duty to ensure that the review is carried out.
• The Commissioner for Investigations is to decide how and when different reviews are carried out, including what steps are necessary to carry out the review and whether different reviews should be carried out in conjunction with one another.
• In carrying out reviews, the Commissioner for Investigations is under a duty to take into consideration any previous investigation that has taken place into the death or serious injury and a duty not to duplicate any aspect of a previous investigation unless necessary.
• The Commissioner for Investigations will have the full powers and privileges of a constable - and the ability to designate senior ICRIR officers with these powers as required - enabling them to secure the information and evidence required for their investigations.
• The Commissioner for Investigations will also have the power to compel individuals to engage with the review and information recovery process, with the possibility of up to a £1,000 financial penalty for individuals who do not comply with requests from the ICRIR.
• The ICRIR will also be given full disclosure from UK Government departments, agencies and devolved bodies, ensuring it has all the evidence it needs to establish what happened in each case.

Why are we doing this?

• Investigations undertaken by the ICRIR will be capable of fulfilling the State’s obligations under Articles 2 and 3 ECHR.  This is why we are equipping the Commissioner of Investigations with the necessary powers to meet such obligations and secure the information that families and survivors are seeking.
• We recognise the risk of putting families and individuals through repeated trauma which is why investigations will seek to avoid duplication where robust investigations have previously been carried out. Ultimately, the Commissioner for Investigations will have the authority to decide how each review is approached.

5. The Immunity Test

What the Bill does

• The Bill will allow people to apply for immunity from prosecution for conduct relating to a Troubles related death or serious injury.
• Immunity will only be granted in respect of conduct disclosed by an individual as part of their application. It will not extend to all Troubles related conduct that an individual may have been involved in but which has not been disclosed.
• An individual cannot apply for immunity from prosecution in relation to an offence for which they already have a conviction. That does not prevent an individual applying for immunity in relation to an offence for which they do not have a conviction.
• A judicial panel - chaired by the Chief Commissioner of the ICRIR - will make a decision about whether or not an individual meets the required criteria in order to get immunity from prosecution.

• This criteria is set out on the face of the Bill and are that:

• The person must make an application to the ICRIR for immunity;
• The panel must be satisfied that the person has provided an account which is true to the best of their knowledge and belief, and which describes conduct which forms part of the Troubles; and

• The panel must be satisfied that the person’s conduct, as described by them in their account, could otherwise expose that person to a criminal investigation or a prosecution.

• Guidance, which the Secretary of State may publish and to which the independent body must have regard may set out the circumstances in which these criteria should be considered to be met.
• Individuals applying for immunity from prosecution will be able to rely on previous statements they have made in previous investigations, but the ICRIR can ask further questions if it chooses to do so. The outcome of requests for immunity must be given - in writing - to the individual who has applied for immunity.
• The ICRIR will have a choice when it comes to how best to express the grant of immunity. An award of general immunity is likely to be appropriate in most cases, but the panel has the flexibility to grant specific immunity in instances where - for example - an individual may have had a lesser role in a death or serious injury, or where the factual position is straightforward.
• If immunity is granted, no criminal enforcement action can be taken against that person in respect of the offence in question. It will not mean that individuals have immunity for any other Troubles related incidents they may have been involved in.
• If immunity is not granted, criminal enforcement action could be taken in respect of the offence. If the Commissioner for Investigations thinks there is enough evidence that an offence has been committed, the ICRIR can directly refer a case to the relevant UK Prosecutor.
• A person cannot apply for immunity from prosecution for an offence in respect of which they are currently being prosecuted or for which they hold a conviction.  Instead, if the prosecution results in conviction and imprisonment, the person can apply for immediate release on licence under proposed changes to the Northern Ireland (Sentencing) Act 1998 early release regime.

Why are we doing this?

• Since publishing the July 21 Command Paper, many individuals and organisations told us that an unconditional Statute of Limitations was too challenging. We have listened, and we have adjusted our approach as a result.
• A Judge-led panel will now grant immunity from prosecution on a case-by-case basis, based on an individual’s cooperation with the ICRIR.
• Importantly, this model recognises that those who choose not to reveal what they know remain indefinitely liable to the threat of prosecution.
• To get immunity, an individual must provide an account to the ICRIR which is true to the best of their knowledge and belief. We think this strikes the right balance between requiring individuals to acknowledge involvement in serious Troubles related incidents and revealing what they know, and also recognising that the passage of time means some accounts may not always be fully accurate.

6. Family Reports and Historical Record

What the Bill does

• The Bill places a duty on the Chief Commissioner to produce a final report on the findings of each review that the ICRIR has carried out as soon as is practicable once the review has concluded.
• The Chief Commissioner is under a duty to publish these reports unless the review was carried out as a result of a request for immunity. In this scenario, the Chief Commissioner must take into account the views of any survivors or close family of any victims of the case in question when deciding whether to publish the report.
• A draft of the final report must be provided to the person who requested the review and the opportunity provided for that person to make representations in advance of publication.
• Where the person who requested the review was not a family member, the ICRIR should seek to identify close family members or if one cannot be identified another family member, share with them a draft copy of the final report and provide them with the opportunity to make representations in advance of publication.
• The Chief Commissioner must also provide a draft final report to anyone criticised within the report and provide them with the opportunity to make representations in advance of publication.
• In the case where an individual has not been granted immunity and has instead been referred to a prosecutor, a report may not be published until either a decision has been taken not to prosecute or any prosecution has come to an end.
• The ICRIR will also be required to produce and publish a historical record of all Troubles-related deaths that are not subject to a request for a review, consisting of all publicly available information relating to these deaths.

Why are we doing this?

• The information recovery process will not only seek to provide answers for families and surviving victims of the Troubles but, in making public its findings, will also inform wider society in Northern Ireland and help enable communities to look forward from the legacy of the past.
• By publishing family reports, the ICRIR will be able to provide a thorough public account of every case that it investigates. But on its own this would only be a partial picture. By producing and publishing a historical record of the publicly available information relating to those deaths not referred to it, the ICRIR will ensure there is  a comprehensive public resource and overview of all deaths that resulted from the Troubles.

7. Inquests

What the Bill Does

• Inquests (inquiries in Scotland) that have reached an advanced stage by 1st May 2023 or by the date on which the ICRIR becomes operational (whichever comes first) will continue to their conclusion.
• Inquests will be considered to have progressed to an advanced stage where a substantive hearing to ascertain — (a) who the deceased was, and (b) how, when and where the deceased died, has begun.
• Inquests that have not progressed to an advanced stage will not be continued.
• There is no automatic referral process, but in cases where an ongoing inquest must close, families may request the ICRIR reviews a death, as may a coroner (Sheriff in Scotland).
• No new inquests or inquiries into Troubles-related deaths may be started after the commencement of the relevant provisions of the Bill.

Why are we doing this?

• We have listened to the concerns set out by many stakeholders since we published the Command Paper last year, and note in particular the strength of feeling against the proposals for inquests.
• It is important that families are able to obtain access to information as soon as possible. In order to ensure that those families who have seen significant progress through the coronial process are not disadvantaged in the recovery of information, it is right that inquests at an advanced stage will continue to their conclusion.
• For those inquests that have not progressed to an advanced stage, the information recovery body (the ICRIR) offers an effective investigative process to obtain information, without families having to go through lengthy court processes or needing to seek legal aid in order to find out what happened to their loved one.
• The ICRIR will have access to more information than inquests and comparable powers to compel witnesses. The Government believes that once the ICRIR is established, there should be one process for investigating the past that is available equally to all those who have lost loved ones.

8. Civil cases

What the Bill does

• The Bill will prohibit the bringing of new civil claims related to the Troubles from the date of its introduction to Parliament.
• Any claims that were brought before the date of the Bill’s introduction (“existing claims’’) will be allowed to continue to their conclusion.
• In the context of the legislation, the word ‘brought’ means a claim that has been filed with the court. The Bill will prohibit claims brought in tort, delict or under fatal accident legislation. It is expected that this will capture the vast majority of Troubles legacy related claims.
• In practice, once the Bill becomes law the civil prohibition will either dissuade individuals bringing new claims forward entirely (on the grounds that it is prohibited) or, where a new claim is brought in the period between introduction and the Bill becoming law, there will be a preliminary hearing once the Bill is commenced, where defendants will be able to argue that the civil prohibition prevents the claim from proceeding.
• The Bill requires the court to determine whether the prohibition applies as an initial matter before considering the merits, unless there are exceptional reasons not to do so.
• It is expected this will mean the vast majority of new Troubles-related civil claims will be prevented from proceeding.

Why are we doing this?

• There is no doubt that the current and projected future civil caseload is putting a huge burden on the courts and others, which must be addressed.
• For Northern Ireland to move forward, it must begin to look past the cycle of Troubles-related adversarial legal processes, which include civil claims.
• However, we have listened to the concerns set out by many stakeholders since we published the Command Paper last year, and note in particular the strength in feeling against interference in existing civil claims, which will be allowed to continue.
• While it is true that many of those bringing civil claims are seeking financial redress, there are those who are looking for answers. This Bill will continue to support those families in accessing that information.
• This is a balanced approach that acknowledges the strong opinions we have heard against interfering with existing litigation, while bringing an end to new processes that would have added to an already overstretched court system.
• Our aim is to reduce the burden on the courts, while beginning the process of moving away from adversarial legacy litigation and towards a new system focused on information recovery and transparency in the interests of wider reconciliation.

9. Oral History and Memorialisation

What the Bill does

• The Bill provides for the designation and funding of organisations with the requisite experience and trust to collaboratively deliver an inclusive oral history initiative with the purpose of encouraging people from all backgrounds to share their experiences of the Troubles, and to listen to those of others.
• Using new digital resources and physical exhibitions, the designated organisations are required to work with community groups to link existing oral history projects, in order to enhance public engagement and accessibility, while promoting voices that may have historically been under-represented.
• To ensure independence and trust, a high degree of flexibility is afforded to these organisations in terms of the implementation of this initiative, with a requirement to publish a document outlining key operational details.
• The designated organisations are also required to convene and work with an advisory forum representing a cross-community, cross-sectoral range of organisations with a defined interest or expertise in oral history and memorialisation, in order to build consensus and encourage collaboration.
• The Bill also provides for the establishment of a research fund, developed in partnership with the Arts and Humanities Research Council, to commission new academic studies into themes and patterns relating to the Troubles, to inform public understanding through use of newly available source material.
• This politically independent academic initiative will include a study of gendered perspectives and a statistical analysis of Troubles-related deaths, with all research compiled into a publicly available report.
• Lastly, the Bill commissions an evidence-based (including through public consultation) ‘memorialisation strategy’ to be published after 12 months, making deliverable recommendations on inclusive new initiatives and structures to commemorate those lost during the Troubles in Northern Ireland, to which the Secretary of State for Northern Ireland must formally respond.

Why are we doing this?

• It is vital that we think about healing and reconciliation in societal, as well as individual terms.
• We know, from existing projects in Northern Ireland and beyond, that storytelling represents an opportunity to acknowledge the pain, suffering and unique experiences of those who may not previously have been heard, while also humanising the conflict and encouraging mutual understanding.
• Consistent with the Stormont House Agreement, there has long been general consensus about the need for an oral history mechanism as part of any system to address the legacy of Northern Ireland’s past.
• Many existing oral history and memorialisation projects exist within local communities or reflect specific perspectives. While welcoming the work that local groups continue to do, there is a clear need for a more holistic, inclusive and consensus-based approach.
• Through the ICRIR, and the Government’s commitment to disclosure, more information will be available than ever before. It is vital that we encourage impartial study of this material, contextualising and promoting it in a way that objectively informs public understanding of the past.

Published 25 May 2022