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Northern Ireland Troubles (Legacy and Reconciliation) Act 2023

Contents

Schedules

Schedule 1: The ICRIR, the Commissioners and ICRIR officers

  1. Part 1 of Schedule 1 makes provision about the ICRIR, including its legal status; its powers; the regulation of its proceedings; the delegation of its functions and exercise of its functions by Commissioners; and the sealing and proving of documents by the ICRIR.
  2. Part 2 of Schedule 1 makes provision about the Commissioners of the ICRIR, including the number of Commissioners; how Commissioners are to be appointed; who is excluded from being a Commissioner; the length of term for Commissioner appointments; that Commissioners may be required to disclose conflicts of interest; and the resignation and removal of Commissioners.
  3. Part 3 of Schedule 1 provides for the Chief Commissioner to delegate their functions to other Commissioners or ICRIR officers.
  4. Part 4 of Schedule 1 allows for the Commissioner for Investigations to delegate their functions (with an exception) to other Commissioners or ICRIR officers. It also provides that the Commissioner for Investigations is not to be regarded as in police service for the purposes of certain trade union legislation.
  5. Part 5 of Schedule 1 makes provision about ICRIR Officers, including their number and terms of employment; the secondment of ICRIR officers; who is excluded from being an ICRIR Officer as a result of holding public office; the application to ICRIR officers of legislation dealing with the rehabilitation of offenders; the liability of the ICRIR for unlawful conduct by its officers; and that ICRIR officers are not to be regarded as in police service for the purposes of certain trade union legislation.

Schedule 2: Operational powers of ICRIR officers

  1. Schedule 2 makes provision regarding the designation of ICRIR officers as persons having the powers and privileges of a constable under section 6. It provides that a designated ICRIR officer has, in each of the jurisdictions of the United Kingdom and its adjacent waters, the same powers and privileges as a constable in that jurisdiction. This is subject to the following:
    1. section 6(3).
    2. a designated ICRIR officer may only exercise the powers and privileges of Scottish constable where: i) a Scottish general authorisation (as defined) is in force, and the powers and privileges are exercised in accordance with that authorisation; and ii) a Scottish operational authorisation (as defined) is in force in relation to a particular operation, and the powers and privileges are exercised in connection with that operation and in accordance with the authorisation.
    3. The powers of designated ICRIR officers can also be restricted by limitations written into the designation itself (on the powers themselves, the purposes for which they may be exercised, or the duration of the designation).
  2. Any person who assaults, resists, obstructs or impedes a designated ICRIR officer in the execution of that ICRIR officer’s duty, or a person assisting a designated ICRIR officer in the execution of that ICRIR officer’s duty is guilty of an offence.

Schedule 3: Family members

  1. This schedule make provision as to who is to be considered a close family member and relevant family member of a victim in relation to requests for reviews into a death. As set out in this schedule, a close family member is a spouse, a civil partner, a co-habitee, a child, a step-child, a parent, a step-parent, a brother or sister, a half-brother or half-sister, or a step-brother or step-sister.

Schedule 4: Supply of information: enforcement

  1. Part 1 of Schedule 4 makes provision about the enforcement of notices under section 14.
  2. Paragraph 1 provides that the ICRIR may require a person to pay a penalty of up to £5,000 if the ICRIR is satisfied, on the balance of probabilities, that the person has failed to comply with a notice under section 11. No such penalty can be imposed if the person shows there was a reasonable excuse for the failure to comply with the notice.
  3. Paragraph 2 provides that if the ICRIR decides to require a person to pay a penalty they must give the person a penalty notice, and that the penalty notice must be in the form specified in sub-paragraph (2).
  4. Paragraph 3 gives the recipient of a penalty notice the right to object to it by giving notice to the ICRIR. The ICRIR must consider the notice of objection and notify the recipient of the ICRIR’s decision in writing within 70 days of the penalty notice, or longer if agreed between the ICRIR and the recipient. The notification of the ICRIR’s decision in respect of the objection must be consistent with sub-paragraph (6).
  5. Paragraph 4 gives the recipient of a penalty notice the right to appeal to the county court (sheriff in Scotland) against a penalty notice which has not been cancelled in response to their objection under paragraph 3.
  6. Paragraph 5 provides how the recoverability of a penalty is to be treated depending on whether the person is in the jurisdiction of England and Wales, Scotland or Northern Ireland, and that the ICRIR must pay any penalty payments received into the Consolidated Fund.
  7. Part 2 of Schedule 4 makes it a criminal offence to distort evidence provided to the Commissioner for Investigations, or to otherwise prevent evidence from being given. It also makes it a criminal offence for a person to intentionally suppress, alter or destroy a document that the person thinks is a document that the Commissioner for Investigations would wish to be provided with. Proceedings for the criminal offences can only be instituted with the consent of the relevant Director of Public Prosecutions in either England and Wales or Northern Ireland.

Schedule 5: No immunity in certain circumstances

  1. This schedule deals with offences for which a person cannot be granted immunity from prosecution.
  2. Part 1 deals with sexual offences and cases where the person seeking immunity from prosecution is subject to an ongoing prosecution or has a relevant pre-existing criminal conviction. Immunity under section 19 may not be granted for sexual offences or inchoate offences relating to sexual offences (paragraph 2). Sexual offences are defined in paragraph 2(2), and under paragraph 2(4) the Secretary of State has a power to make regulations containing further provision about the meaning of sexual offence.
  3. Paragraph 3 prevents immunity from prosecution being granted for an identified possible offence is the person requesting immunity already a conviction for that offence, or is currently being prosecuted for that offence. Further, a person cannot be granted immunity from prosecution for an identified possible offence if that grant would risk having, or would have, a prejudicial effect on the ongoing prosecution of that person for another offence (even one which is not Troubles-related). Paragraphs 4 and 5 clarify, respectively, the application of section 19 in cases where this Schedule prohibits the grant of immunity for all the identified possible offences, or only some of those offences (see section 19(5) for the meaning of "the identified possible offences").
  4. Part 2 deals with cases where a person’s immunity from prosecution is revoked by a court under section 26. It applies to additional requests for immunity by the same person made after such a revocation, and to requests which were still under consideration at the time of such a revocation. In these cases, the immunity requests panel is prohibited from granting immunity for any identified possible offence which was within the scope of the revoked immunity.

Schedule 6: Permitted disclosures of information

Part 1 - Disclosures that are permitted

  1. Part 1 of Schedule 5 sets out which disclosures of information are permitted.
Disclosure of any information to the Secretary of State
  1. Paragraph 2 sets out that the ICRIR is permitted to disclose any information to the Secretary of State.
Disclosure of sensitive information to certain recipients
  1. Paragraph 3 sets out that disclosures of sensitive information to certain individuals are permitted so long as the Commissioner for Investigations notifies the Secretary of State of the proposed disclosure and the disclosure is then made after the relevant 10 day period. The individuals are the Director of Public Prosecutions for Northern Ireland, the Director of Public Prosecutions, the Lord Advocate, a member of the Police Service of Northern Ireland, a member of the police force in Great Britain, certain coroners; and finally, in some cases, a Sheriff in Scotland. Paragraph 3(3) defines ‘the relevant 10 day period’ as 10 working days from when the Commissioner for Investigations notifies the Secretary of State of the proposed disclosure. Paragraph 3(4) defines "working day".
Disclosure of sensitive information notified in advance to the Secretary of State
  1. Paragraph 4(1) sets out that the ICRIR may disclose sensitive information so long as the Commissioner for Investigations notifies the Secretary of State that they intend to make the disclosure, and the Secretary of State notifies the Commissioner for Investigation that the disclosure is permitted during the relevant decision period. It is established at paragraph 4(3) that the Secretary of State may only prohibit the disclosure if, in their view, it could harm national security interests.
  2. Further, paragraph 4(4) sets out that in such cases the Secretary of State is required to provide the reasons for prohibiting disclosure, so long as these do not themselves risk harming national security interests. A definition for the ‘relevant decision period’ is provided at paragraph 6.
Disclosure of protected international information notified in advance to the Secretary of State
  1. Paragraph 5 applies a similar regime to that set out in paragraph 4 as regards proposed disclosures of protected international information. Further, paragraph 4(2) sets out that the Secretary of State may only prohibit such a disclosure if, in their view, the disclosure could harm international relations.
The "relevant decision period"
  1. Paragraph 6(1) defines the "relevant decision period" for the purposes of paragraphs 4 and 5. This is defined as 60 days from when the Commissioner for Investigations notifies the Secretary of State of the proposed disclosure or any reasonable longer period specified by the Secretary of State within that 60 day period. Paragraph 6(2) adds that if there is an appeal and the court orders the Secretary of State to remake a decision, ‘relevant decision period’ means the period for remaking the decision laid down by the court.

Part 2 - Appeals against decisions not to permit disclosures

Application of this Part
  1. Paragraph 7 outlines that Part 2 of Schedule 6 applies where the Secretary of State decides to prohibit the disclosure of sensitive information in a final report.
Affected report to include statement of Secretary of State’s decision
  1. Paragraph 8 sets out that in this scenario there must be a statement included in the report to outline that the Secretary of State has decided not to permit the disclosure. The statement should also set out the Secretary of State’s reasons for prohibiting the disclosure, if they have been provided. It adds that if an initial appeal is made and the Secretary of State remakes the decision in line with the direction from the court, a new report must be issued by the ICRIR.
Initial appeals
  1. Paragraph 9 defines ‘initial appeals’ as appeals to the relevant court against the Secretary of State’s decision not to permit a proposed disclosure. It sets out that in these appeals, the court must apply principles applicable on an application for a judicial review ((or, in Scotland, an application to the supervisory jurisdiction of the Court of Session), and gives the court the power to quash the Secretary of State’s original decision. It directs that if the court does so, it must order the Secretary of State to remake the decision within 60 days or any reasonable longer period that the court specifies. If the court does not quash the decision, it must dismiss the appeal.
Bringing an initial appeal
  1. Paragraph 10 outlines that an initial appeal may only be brought by the person who requested the review to which the affected relates, or a person who would be eligible to request a review. It sets out that an initial appeal must be brought within the period of 28 days beginning with the day on which the affected report is published.
Further appeal against an initial appeal
  1. Paragraph 11 sets out the process for bringing a ‘further appeal’ against any determination made in the initial appeal. It outlines that this may only happen with leave from the court, and that the court may only grant leave if it would raise some important point of practice or principle - or if there is another compelling reason for the further appeal to be heard.
Application of the Justice and Security Act 2013
  1. Paragraph 12 describes how initial and further appeals are to be treated as section 6 proceedings within the meaning of the Justice and Security Act 2013, for the purposes of sections 8 to 14 of the same Act.
Interpretation
  1. Paragraph 13 defined various terms used in Part 2 of the Schedule.

Schedule 7: Offences relating to disclosure of information

Current and former Commissioners, ICRIR officers and ICRIR contractors
  1. This Schedule sets out the offences committed if information is disclosed in breach of a relevant prohibition on disclosure.
  2. Paragraph 1 sets out that an offence is committed if (i) a current or former ICRIR Commissioner, ICRIR officer or ICRIR contractor discloses information which they obtained in their capacity as such, and (ii) the disclosure would have been in breach of a relevant prohibition on disclosure had it been made by the ICRIR. It is set out in paragraph 1(2) that for these purposes it does not matter whether the disclosure occurred within or outside of the United Kingdom. Paragraph 1(3) establishes that communication of information between persons holding relevant positions does not constitute disclosure. Paragraph 1(4) establishes that it is a defence for a person to prove that, at the time of the disclosure, they had no reasonable cause to believe that the disclosure would have been in breach of a relevant prohibition on disclosure had it been made by the ICRIR.
Penalties
  1. Paragraph 2 sets out that a person guilty of an offence under this Schedule is liable to imprisonment, a fine, or both, in line with the limits established in paragraph 2(a) to (d).
Interpretation
  1. Paragraph 3 provides a number of definitions of ‘relevant prohibition on disclosure.’

Schedule 8: Identification of sensitive, prejudicial or protected international information

Part 1 - The ICRIR: Identification of sensitive or prejudicial information

  1. Paragraph 1 sets out that the Commissioner for Investigations must, from time to time, identify any information held by the ICRIR which, in their opinion, is sensitive or prejudicial information. This is not required where a relevant authority has notified the Commissioner for Investigations that the authority has identified the information as such as per paragraphs 2 or 3.

Part 2 - Relevant authorities: Identification of sensitive or prejudicial information

Information made available by a relevant authority
  1. Paragraph 2 explains that a relevant authority must identify any information it is making available to the ICRIR that is either sensitive or prejudicial information, by notifying the Commissioner for Investigations.
Information made available by other persons
  1. Paragraph 3 explains that where a person other than a relevant authority proposes to provide, or has provided, information to the ICRIR, a relevant authority may identify any of the information that it thinks is either sensitive or prejudicial information. If an authority does so identify sensitive or prejudicial information, it must then notify the Commissioner for Investigations.
Notifications under this Schedule
  1. Paragraph 4 clarifies that when a notification is made under paragraph 2 or paragraph 3, it must be made clear through a statement whether the relevant authority believes the information is sensitive information, prejudicial information, or both.

Part 3 - Secretary of State: Identification of protected international information

  1. Paragraph 5 outlines that the Secretary of State may make the Commissioner for Investigations aware of any information held by the ICRIR, or information which anyone is proposing to make available to the ICRIR, which is in the Secretary of State’s opinion, protected international information.

Schedule 9: Determination of whether the prohibition on civil actions applies

  1. This schedule makes provision about how the courts will determine whether prohibition on civil actions under section 43 applies.
  2. Paragraph 2 entitles the Secretary of State to notice of any Troubles-related civil action that it appears may contravene the prohibition. It also confers a power on the Secretary of State (or a person nominated by them) to be joined as a party to the action and take part in proceedings to determine the question of whether the prohibition applies.
  3. Paragraph 3 sets out how the court must determine whether the prohibition on civil actions applies where sufficient evidence has been adduced to raise an issue as to whether the prohibition applies. Sub-paragraph (3) provides that the court must assume that the action contravenes the prohibition until it is proved that the action does not and sub-paragraph (4) provides that the court must dismiss the action where the action contravenes the prohibition. However, sub-paragraphs (5) and (6) preserve the discretion of the court to award costs where the action is dismissed. Sub-paragraphs (7) and (8) provide that the court must determine the question of whether the prohibition is contravened before considering other questions unless the court considers there are exceptional reasons not to do so. Sub-paragraph (8)(a)(ii) also permits the court to consider questions of limitation at the same time it considers whether the prohibition is contravened.
  4. Paragraph 4 clarifies that the prohibition on civil actions does not prevent any legal proceedings relating to a determination by a court that a civil action contravenes the prohibition (for instance, an appeal seeking to overturn a decision that the prohibition applies to an action).

Schedule 10: Civil actions to which the 2008 Mediation Directive applies

  1. Paragraph 1(1) provides that the prohibition on civil actions under section 43 does not apply to certain actions which have been subject to cross-border mediation to which Directive 2008/52/EC (the Mediation Directive) applies by virtue of Article 69(1)(b) of the EU Withdrawal Agreement.
  2. Paragraph 1(2) provides that in such cases the prohibition on civil actions has effect as if it instead required that an action which involved prior cross-border mediation (a) may not be continued unless it was brought on or after the later of the day of the Act’s first reading and the end of the period of eight weeks after the mediation ends; and (b) may not be brought on or after the day on which section 29 ends unless it is brought before the end of the period of eight weeks after the mediation ends.

Schedule 11: Investigations, inquests and inquiries in England and Wales and Scotland

Part 1 - England and Wales: Investigations and Inquests

Coroners and Justice Act 2009
  1. Paragraph 1(1) inserts new section 11A and new schedule 1A into the Coroner and Justice Act 2009. Paragraph 1(1) of new Schedule 1A provides for existing inquests and coronial investigations into troubles related deaths in England and Wales to end on 1 May 2024 unless the only part of the investigation that remains to be carried out is the coroner or any jury making the determination and any findings required by section 10 of the 2009 Act, or some step subsequent to that.
  2. New Schedule 1A paragraph 2(1) to 2(4) relates to new investigations and inquests into Troubles-related deaths. On and after the day which paragraph 1(2) of Schedule 10 to this Act comes into force (on the 1 May 2024) the duty under section 1(1) of the 2009 Act is not to begin to apply to a senior coroner in respect of a Troubles-related death. Schedule 1A Paragraph 3(3) prevents a senior coroner from making a request to another senior coroner to conduct an investigation; no senior coroner should agree to such a request. Schedule 1A paragraph 3(4) prevents the Chief Coroner from giving a direction to a senior coroner to conduct an investigation into a Troubles-related death.
  3. New Schedule 1A paragraph 4 defines a death that "resulted directly from the Troubles", "conduct forming part of the Troubles",", "inquest", and "investigation".
Coroners Act 1988
  1. Paragraph 2 amends section 13 of the Coroners Act 1988 by inserting a new subsection (5) to prevent the section from applying to a Troubles-related death.

Part 2 - Scotland: Inquiries and Investigations

Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016
  1. Paragraph 3 inserts new section 7 and new Schedule A1 into the Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016. New Schedule A1 makes provision about inquiries and investigations into Troubles-related deaths.
  2. New Schedule A1, paragraph 1 applies to an inquiry into a Troubles-related death that was initiated before 1 May 2024 unless the only part of the investigation that remains to be carried out is the sheriff making the determination required by section 26 of the 2016 Act, or some step subsequent to that. On and after this date the sheriff must not progress the conduct of the inquiry and, as soon as is practical, the sheriff must discontinue the inquiry.
New inquiries and investigations
  1. New Schedule A1, paragraph 2 provides that on or after the day on which these provisions come into force the Lord Advocate must not cause an inquiry to be held into any Troubles-related death, nor must the procurator fiscal give notice to the sheriff that an inquiry into a Troubles-related death is to be held. Further inquiry proceedings must not be held in accordance with section 30(2) in relation to a Troubles related death.
  2. New Schedule A1, paragraph 3 contains definitions used in the Schedule.

Schedule 12: Prisoner release

  1. Paragraph 1(1) makes amendments to the Northern Ireland (Sentences) Act 1998 ("the Sentences Act"). Under paragraph 1(2), these amendments do not apply in relation to any application for a declaration under section 3(1) of the Sentences Act (declaration that prisoner is eligible for early release) which is made before force on 1 May 2024 (the date on which the Schedule comes into force - see section 63(2)(b)).
  2. Paragraph 2 makes amendments relating to the meaning of "qualifying offence" for the purposes of provisions relating to eligibility for early release under the Act. The first effect of these amendments is that an offence is not a qualifying offence, and the prisoner is not therefore eligible for early release, if the prisoner was convicted of the offence following a prosecution which began after the date on which section 19(1) of this Act (duty to grant immunity from prosecution where certain conditions are met) came into force.
  3. The existing early release scheme in the Sentences Act applies to persons convicted of "scheduled offences" between 8 August 1973 and 10 April 1998. "Scheduled offences" are those specified in the Northern Ireland (Emergency Powers) Act 1973 ("the 1973 Act") and subsequent Northern Ireland Emergency Powers Acts. Paragraph 2 also extends the early release scheme by amending the meaning of "qualifying offence" to include an offence committed on or after 1 January 1966 and before 8 August 1973, where the offence (a) arose out of conduct forming part of the Troubles, and (b) is certified as an offence which would have been a scheduled offence within the meaning of the Northern Ireland (Emergency Provisions) Act 1973, had it been committed in Northern Ireland on 8 August 1973.
  4. Paragraph 3 makes provision equivalent to paragraph 2, in relation to provisions of the Sentences Act which deal with sentences passed outside Northern Ireland (prisoners sentenced in other UK jurisdictions are, if transferred to prisons in Northern Ireland, eligible in principle for release under the early release scheme).

Schedule 13: Amendments

  1. This Schedule amends existing legislation.

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