Explanatory Memorandum

Inquiry Into Historical Institutional Abuse Act (Northern Ireland) 2013

2013 CHAPTER 2

18 January 2013

Commentary on Sections

Section 1: The inquiry

This section authorises the First Minister and deputy First Minister acting jointly to set up an inquiry into historical institutional abuse between 1922 and 1995, the terms of reference for which were announced to the Assembly on 18 October 2012 and which the First Minister and deputy First Minister acting jointly after consulting the chairperson may amend, only following affirmative resolution of the Assembly.

Section 2: Appointment of members

The expectation is that members will remain with the inquiry until their task is completed; nonetheless, vacancies may arise. This section therefore enables the First Minister and deputy First Minister acting jointly, after consulting the chairperson, to make further appointments, either to fill vacancies which arise or, if necessary, to increase the number of panel members.

Section 3: Duration of appointment of members

Should a panel member have to leave the panel before the end of the inquiry, it is likely that he/she will do so by resigning, and this is dealt with by Subsection (2). Subsection (3) sets out circumstances in which the First Minister and deputy First Minister acting jointly may terminate the appointment.

Section 4: Assessors

Assessors may be appointed to provide the inquiry with expertise it needs to fulfil its terms of reference. They are not members of the inquiry panel, do not have powers under this Act and are not responsible for the inquiry’s findings or its report. An assessor may be appointed for all or part of the inquiry.

Section 5: End of inquiry

Subsection (1)(a) provides that the inquiry ends when its report has been submitted and its terms of reference fulfilled. However, circumstances could arise (as yet unforeseen) in which it would be impossible for the inquiry to continue. Therefore, as a safeguard, Subsection (1)(b) provides for the First Minister and deputy First Minister acting jointly, after consulting the chairperson, to end the inquiry.

Section 6: Evidence and procedure

Subsection (4) requires the chairperson of the inquiry to act fairly throughout the inquiry. This will include considering whether certain witnesses to the inquiry require legal advice or representation.

Subsection (4) also requires the chairperson to have regard to the need to avoid unnecessary cost in planning and conducting the proceedings. Every decision to hold a hearing, to call for evidence or to grant legal representation may add to the cost of the inquiry. This subsection strengthens the chairperson’s ability to defend decisions in which the need to limit the cost of the inquiry is a factor.

Section 7: Public access to inquiry proceedings and information

This section requires the chairperson to take whatever steps he judges reasonable to ensure that the public (including reporters) can attend the inquiry or see and hear a transmission of it, and can access evidence available to it. Recording and broadcasting of inquiry proceedings is at the presiding member’s discretion.

Subsection (3) makes clear that the acknowledgement forum’s proceedings are to be held in private.

Section 8: Restrictions on public access, etc.

This section enables the chairperson, during the course of the inquiry, to issue restriction orders. The purpose of such orders is to restrict attendance at all or part of the inquiry; to restrict disclosure of information in the context of the inquiry; to restrict disclosure by those who have received the information only by virtue of it being given to the inquiry; or to restrict the disclosure of a person’s identity.

Subsection (4) sets out a number of matters that must be taken into account when determining whether it is in the public interest to issue a restriction order.

Subsection (4)(c) covers cases in which the chairperson’s powers of compulsion have been used to override confidentiality restrictions, so that information can be provided to the inquiry by enabling the chairperson to consider preventing the information from wider disclosure.

Subsection (5) enables the chairperson to vary restriction orders. This allows for situations in which it becomes apparent that more information can be made public than was originally envisaged, or that more people can be given access to information than allowed by the original order, as well as any situations in which it becomes apparent that further restrictions are necessary.

Orders restricting attendance will be relevant only during the course of the inquiry. However, orders restricting disclosure or publication of evidence, or preventing the identification of witnesses, may need to continue beyond the end of the inquiry. Unless the chairperson specifies in a restriction order when it will end, varies it, or revokes it under Subsection (6), the order will remain in force indefinitely.

Subsection (7) is designed to ensure that restrictions do not create a barrier to disclosure of information from inquiry records under the Freedom of Information Act 2000.

In due course, after the end of the inquiry, circumstances may change in a way which requires an order to be varied or revoked, Subsection (8) will therefore give OFMDFM the power to revoke or vary a restriction order after the inquiry ends.

Restrictions under this section could prevent a person from passing on information that he/she learned through involvement in, or attendance at, the inquiry. Nothing in this section is intended to prevent witnesses from passing on evidence that they themselves have given to the inquiry, either during the inquiry or after it has ended.

Section 9: Powers to require production of evidence

It is expected that requests from the inquiry for people to appear before it as witnesses, or to provide it with evidence, will generally be complied with voluntarily. However, some people may be motivated to refuse. Others may be unable to provide the information required by the inquiry without a formal notice, either because there is a statutory bar on disclosure or because of concerns about breaking confidentiality agreements. Subsections (1) and (2) therefore give the chairperson powers to compel by notice witnesses and evidence.

Subsection (4) enables the chairperson to vary or revoke a notice, either because the person does not have the required evidence; or because the terms of the initial notice were unreasonable, for example, because the timescale set is unrealistically short, the cost unreasonably high or the volume of material unreasonably great; or when the evidence requested is unlikely to be of material assistance to the inquiry.

Subsections (7) and (8) make clear that the powers conferred on the chairperson by this section apply to transferred matters at the time the powers are exercised, not when the event under investigation occurred.

Section 10: Privileged information, etc.

Subsection (1) ensures that witnesses before the inquiry have the same privileges, in relation to requests for information, as witnesses in civil proceedings. This means that a witness will be able to refuse to provide evidence if it is covered by legal professional privilege, or because it might incriminate them, or their spouse or civil partner.

Section 11: Submission of reports

The chairperson must deliver the inquiry report to the First Minister and deputy First Minister prior to its publication.

Section 12: Publication of reports

The chairperson is responsible for publishing the inquiry’s report in full, excepting elements which he is required by law to withhold, or which he determines must be withheld in the public interest.

Section 13: Laying of reports before the Assembly

The First Minister and deputy First Minister acting jointly will lay any report published under Section 12 before the Assembly when it is published or as soon as possible thereafter.

Section 14: Expenses of witnesses, etc.

This section enables the chairperson, with the approval of OFMDFM, to award reasonable amounts to cover witness costs. These include the legal costs of certain witnesses called to the inquiry. OFMDFM will set out broad conditions under which payment may be granted, and the chairperson will then advise in relation to the individual cases. Reasonable travelling expenses will also be reimbursed for people who come forward to recount their experiences to the acknowledgment forum.

Section 21(1)(c) provides for OFMDFM to make rules in relation to this section.

Section 15: Payment of inquiry expenses by OFMDFM

This section requires OFMDFM to meet the expenses of the inquiry and delineates the circumstances in which these will not be paid. It makes clear that OFMDFM must pay any amounts awarded under section 14.

Under Subsections (4) and (5), OFMDFM is not obliged to fund activities that it has notified to the chairperson as being outside the inquiry’s terms of reference. It is anticipated that withdrawal of funding would occur only in the unlikely circumstances that the inquiry did not take the opportunity to resume operating within its terms of reference. OFMDFM would resume funding if satisfied the inquiry is again working within its terms of reference.

Subsection (6) requires OFMDFM to publish the total cost it has incurred under this section.

Section 16: Offences

Subsection (1) makes non-compliance with a notice served under Section 9 or a restriction order, or contravention of such an order, served under Section 8 an offence.

Subsections (2) and (3) make it an offence to do anything which is intended to distort or otherwise alter evidence, or to conceal evidence. Both these subsections are drafted so that it should not be possible for a person to commit an offence unwittingly (for example by destroying a document that he/she does not know to be relevant).

Subsection (5) ensures that it is not an offence to withhold privileged information under Section 10. This subsection also ensures that offences of altering or distorting information do not apply to actions authorised by the chairperson – for example, if material is redacted from documents in accordance with guidance issued by the inquiry.

Only the chairperson may institute proceedings for non-compliance with a notice issued under Section 9 or non-compliance with, or contravention of, a restriction order. This is because it is for the chairperson to decide whether to enforce notices issued under his power of compulsion, and how best to do this. There are two enforcement options: prosecution of an offence under Section 9, or enforcement of the notice by the High Court under Section 17.

Prosecutions for offences under Subsections (2) or (3) may be brought only by, or with the consent of, the Director of Public Prosecutions for Northern Ireland; this means that it is not possible for anyone with an interest in the outcome of the inquiry to bring a private prosecution against witnesses with whose evidence they disagree. It also means that prosecutions can be brought after the inquiry has finished.

Section 17: Enforcement by High Court

Where a person breaches a restriction order or a notice issued under Section 9, or threatens to do so, the chairperson may certify the matter to the High Court, which can then take steps to enforce the order.

Section 18: Immunity from suit

This section provides immunity for the inquiry panel, the inquiry’s legal advisers, assessors, staff and anyone else engaged to assist it from any civil action for anything done or said in the course of carrying out their duty to the inquiry. For the purposes of defamation law, witness statements and inquiry reports are covered by the same privilege as proceedings before a court.

Section 19: Time limit for applying for judicial review

The time limit of two weeks in this section runs from the date on which the applicant becomes aware of the decision, not from the date on which the decision was made.

Section 20: Power to make supplementary, etc. provision

This section is self-explanatory.

Section 21: Rules

This section enables OFMDFM to make rules subject to negative resolution in relation to the evidence and procedure under Section 6, disclosure of evidence under Section 7, witness anonymity orders under Section 8, the return or keeping of documents under Section 9 and, in particular, to the award of witness expenses under Section 14.

Section 22: Application to the Crown

This section binds the Crown so that the powers conferred by this Act can be exercised in relation only to Northern Ireland Departments.

Section 23: Consequential amendments

This section is self-explanatory.

Section 24: Interpretation

This section is self-explanatory.

Section 25: Commencement, etc.

This section is self-explanatory.

Section 26: Short title

This section is self-explanatory.