Appendix 1: Northern Ireland Troubles (Legacy and Reconciliation) Bill: Government Response
Letter from Lord Caine, Parliamentary Under Secretary of State for Northern Ireland, to the Rt Hon. the Lord McLoughlin CH, Chair of the Delegated Powers and Regulatory Reform Committee
Thank you for your report following the Committee’s scrutiny of the delegated powers of the Northern Ireland Troubles (Legacy and Reconciliation) Bill. The Government has considered the Committee’s recommendations and our response is set out below.
Clause 19(9)
The Committee flagged concerns over providing a power for Secretary of State to make regulations in relation to defining what is meant by a “sexual offence” under clause 19(9) and noted that:
The delegated power in clause 19(9) is inappropriate and should be removed from the Bill.
Government response
The temporal and territorial scope of the legislation is complex. It covers 3 jurisdictions and a 32 year time period (1966 to 1998). That is why the Government was unable to accept the Opposition’s amendment tabled at Committee Stage that sought to replicate similar provisions made under the Overseas Operations Act and instead tabled an amendment allowing for a delegated power in this space.
The Government takes its approach to dealing with sexual offences seriously. We do not believe it appropriate to try and capture an absolute list of sexual offences under primary legislation.
In paragraph 6 of your report, you say the power in clause 19(9) might be used to widen the meaning of sexual offence in clause 19(7) and in a way that might be controversial.
It is intended that the power under clause 19(9) would be used to clarify which specific offences are caught by the general definitions in paragraphs (b) and (c) of subsection (7). It would not be used to bring within the scope of the clause offences which are of an entirely different character, and which could not therefore reasonably be regarded as sexual offences.
A delegated power provides a vehicle to amend the definition provided as required and ensure that we can take the required time to capture the full range of possible offences that need to be covered, bearing in mind that the statute book will have changed significantly in each of the three UK jurisdiction over the 30+ year period in question. We do not want to be in a position where too much haste in primary legislation omits an offence that we want to ensure is covered by the provisions. Given the nature of the debate on this most serious and delicate of issues, we think that a comprehensive list in Secondary Legislation is the most appropriate way forward, and the negative procedure will ensure sufficient scrutiny can occur.
Clause 21
The Committee made recommendations in regards to clause 21, that allows the Secretary of State to issue guidance in relation to the determination of applications for immunity from prosecution, to which the immunity requests panel must have regard. The Committee recommended that:
The statutory guidance in clause 21 should be subject to a parliamentary procedure, whether the affirmative or the negative.
Government response
The purpose of guidance published by the Secretary of State in relation to the determination of immunity applications is not legislation disguised or new policy. Rather, it will provide further technical detail that follows on from the content of the legislation as agreed by Parliamentarians.
The Government does not consider it necessary to subject said guidance to parliamentary procedure on the basis that it does not reflect new policy. It endeavours to provide technical detail surrounding the determination of immunity applications that parliamentarians will have been given the opportunity to scrutinise via the passage of this legislation.
Clause 33(1)
The Committee raised concerns over clause 33(1) that allows Ministers to wind up the independent Commission created under this legislation via affirmative regulations. The Committee advised:
The delegated power in clause 33(1) is inappropriate and should be removed from the Bill.
Government response
Central to the timely delivery of information recovery, is ensuring that the independent Commission legislated for under this Bill is time-bound. Moreover, it would not be an efficient or appropriate use of public funding to keep this body running indefinitely once it has finished exercising the functions conferred on it by clause 2(4).
The Committee queried why we chose not to proceed with a traditional sunset clause. The Government has not placed a definite time-limit on the existence of the ICRIR because, as the ICRIR will be demand-led, we do not know its likely caseload. Any time-limit placed on the body would be speculative and informed by limited evidence given the novel nature of proposals under this legislation. If too short, we set the body up for failure from the outset by not providing enough time for it to complete all its reviews. If too long, we risk wasting resources by keeping an arms-length body operational for longer than it requires.
The Committee also commented that “what parliament has created should be for Parliament to abolish”. The Government agrees, which is why the winding up power is currently subject to affirmative resolution.
1 December 2022