Northern Ireland Troubles (Legacy and Reconciliation) Act 2023

Part 2: The Independent Commission for Reconciliation and Information Recovery (ICRIR)

The ICRIR, the Commissioners and ICRIR officers

Section 2: The Independent Commission for Reconciliation and Information Recovery

12. This section provides for the formation of the Independent Commission for Reconciliation and Information Recovery (ICRIR) (subsection (1)) as a body corporate (subsection (2)), consisting of a Chief Commissioner, a Commissioner for Investigations and up to five additional Commissioners (subsection (3)).
13. Subsection (4) states that the principal objective of the ICRIR in exercising its functions is to promote reconciliation.
14. Subsection (5) lists the functions of the ICRIR. These are to:
    1. Carry out reviews (which may include criminal investigations) into any deaths that resulted from conduct forming part of the Troubles;
    2. Carry out reviews (which again may include a criminal investigation) of other harmful conduct forming part of the Troubles (defined in section 1);
    3. Produce reports on the findings of each of these reviews;
    4. Determine whether to grant immunity from prosecution for serious or connected Troubles-related offences other than Troubles-related sexual offences;
    5. Refer deaths that were caused by conduct forming part of the Troubles, and other harmful conduct forming part of the Troubles, to prosecutors;
    6. Produce a historical record of deaths that resulted from conduct forming part of the Troubles.
15. Subsection (6) provides that in exercising its functions, the ICRIR must have regard to the general interests of persons affected by Troubles-related deaths and serious injuries.
16. At least three months before the start of each financial year, the ICRIR must produce and publish a work plan for that year (subsection (7)). That work plan must deal with matters as set out under subsection (8). A copy must be provided to the Secretary of State.
17. Subsection (9) requires the ICRIR, no later than six months after the end of each financial year to produce and publish an annual report on prescribed matters (set out in subsection 10) such as finance and administration, and any other matters the ICRIR consider appropriate. A copy must be provided to the Secretary of State.
18. Subsection (11) grants the Secretary of State the ability to provide funding or other resources to, or in respect of, the ICRIR so that it may carry out its work.
19. Subsection (12) introduces Schedule 1 of the Act, which contains further detail about the ICRIR, its Commissioners and its officers.

Section 3: ICRIR officers

20. This section provides that people may be employed or seconded to serve as ICRIR officers as defined in subsection (4).
21. Subsection (3) provides that in employing or seconding people the ICRIR must, as far as it is practicable, ensure that ICRIR officers collectively hold relevant experience of conducting criminal investigations either in Northern Ireland or elsewhere.
22. Subsection (4) states that, for the purpose of this Act , an ICRIR officer means the Commissioner for Investigations and persons employed or seconded under this section.

Section 4: Actions of the ICRIR: safeguards

23. This section provides that the ICRIR must not do anything which would prejudice or risk the national security of the United Kingdom; which would risk having or would have a prejudicial effect on actual or prospective criminal proceedings; or which would risk putting, or would put,the life or safety of any person.
24. Subsection (4) sets out how subsection (1) applies as regards grants of immunity from prosecution by the ICRIR and disclosures of information.

Section 5: Full disclosure to the ICRIR

25. This section deals with the disclosure of information, documents and other material by relevant authorities to the ICRIR for the purposes of, or in connection with, the ICRIR’s review or immunity function. "Relevant authority" is defined in section 60 of the Act.
26. Subsection (1) provides that relevant authorities are required to make available any information, documents or other material when reasonably required by the Commissioner for Investigations for the purposes of, or in connection with, the ICRIR’s review or immunity function.
27. Subsection (2) provides that relevant authorities may also make available any material which they consider may be needed by the ICRIR for the purposes of, or in connection with, its review or immunity function.
28. Subsections (3) and (4) provide that the relevant authority and the Commissioner for Investigations are to agree the manner in which material is made available under the section, but that the Commissioner for Investigations may specify the way in which information required under subsection (1) is to be made available.
29. Subsection (5) provides that agreements under subsection (3) may provide, and requirements under subsection (4) may require, that the relevant authority is to give the actual ,material, give a copy of it, or allow access to it.
30. Subsection (6) provides that requirements under subsection (4) must be consistent with any regulations made by the Secretary of State under section 34 about the holding and handling of information.
31. Subsection (7) provides that the Commissioner for Investigations may require the reasonable assistance of persons stipulated under this subsection with regards to the effective use of material made available by the person under this section.
32. Subsection (8) provides that when making material available under this section, the relevant authority is exempt from any potential breach of confidence or any other restriction on the disclosure of information.
33. Subsection (9) clarifies that a "copy" could include a photograph or similar representation.

Section 6: Operational powers of ICRIR officers

34. This section sets out the operational powers of ICRIR officers. Section 3 subsection (4) of this Act defines an ICRIR officer as being the Commissioner for Investigations as well as persons employed or seconded under that section.
35. Subsection (1) provides the Commissioner for Investigations with the same powers and privileges of a constable. These powers and privileges are a combination of the powers and privileges available at common law and statute, which includes the Police and Criminal Evidence Act 1984 in England and Wales, and the Police and Criminal Evidence (Northern Ireland) Order 1989 in Northern Ireland. In Scotland these powers and privileges are derived from a mixture of common law and statute including the Criminal Procedure (Scotland) Act 1995.
36. Subsection (2) provides that the Commissioner for Investigations may designate any other ICRIR officer as a person having the powers and privileges of a constable, if the Commissioner for Investigations is satisfied that the officer in question is: capable of effectively exercising those powers and privileges; has received adequate training in respect of the exercise of those powers and privileges; and is otherwise a suitable person to exercise those powers and privileges.
37. Subsection (3) provides that the powers and privileges of a constable are only exercisable by the Commissioner for Investigations and any other designated ICRIR officer for the purposes of, or in connection with, any function of the ICRIR (other than the function of producing the historical record.
38. Subsection (4) introduces Schedule 2, which makes further provision about the operational powers of ICRIR officers.

Admissibility of information provided to the ICRIR

Section 7: Admissibility of material in criminal proceedings

39. This section creates restrictions on the use of material against a person in criminal proceedings, where that material was obtained by or provided to the ICRIR by that person. It does not affect the use of material in proceedings brought against any other person.
40. Subsection (2) relates to "compelled material", which is defined in subsection (10) as anything that has been obtained by the ICRIR through the exercise of the ICRIR’s powers under section 14 (power to issue a notice requiring the provision of information etc.). By virtue of this subsection, compelled material cannot be used in evidence in criminal proceedings against the person who was compelled to provide it.
41. Subsections (3) relates to material provided to the ICRIR by an applicant for immunity from prosecution in connection with that application. Neither this material, nor anything else obtained directly or indirectly as a result of such material, may be used in evidence in criminal proceedings against the applicant.
42. Subsection (4) creates two limited but important exceptions to the restrictions under subsections (2) and (3). The first would allow compelled material to be used against the person providing it in a prosecution for the new offence at paragraph 8(1)(a) of Schedule 4 of distorting or otherwise altering that material. The second ensures that these restrictions would not prevent a prosecution for the new offence of providing a false statement as part of an immunity application (see section 27).
43. Subsection (5) relates to material not covered by subsections (2) and (3). It provides that material obtained from, or provided by, a person for the purposes of, or in connection with, any of the ICRIR’s functions may not be used in evidence against that person unless one of the two exceptions created by subsections (5) or (6) apply.
44. Subsection (6) creates an exception from the restriction created by subsection (5), in cases where the material was provided to, or obtained by, an ICRIR officer designated under section 6(1) or (2) (the Commissioner for Investigations and any other ICRIR officer designated as having the powers and privileges of a constable). An example would include information provided by a suspect in response to questions put as part of a formal interview under caution.
45. Subsection (7) creates a further exception from the restriction created by subsection (5), which applies in cases where the criminal proceedings relate to the ICRIR’s exercise of its functions, any other conduct by the ICRIR, or the conduct of current and former ICRIR staff and others in a similar position. This exception would, for example, ensure that subsection (5) did not inhibit the prosecution of a person who was found to have deliberately made false statements on an application form in order to secure employment with the ICRIR.
46. Subsection (8) clarifies that the exceptions created by subsections (4, (6)) and (7), where they apply, do not affect the application of any other legislation or rule of law relating to their admissibility in criminal proceedings.
47. Subsection (9) clarifies the effects of the restrictions on admissibility created by this section, subsection (10) clarifies the scope of the restrictions (in terms of the material covered), and subsection (11) creates relevant definitions including "compelled material".

Section 8: Admissibility of material in civil proceedings

48. This section provides for the inadmissibility in certain proceedings of "protected material", defined for the purposes of this Act in subsection (5) as material obtained or produced by the ICRIR in the exercise of its functions.
49. Subsection (1) provides that protected material (or evidence relating to it) is inadmissible in civil or coronial proceedings, and certain inquiries in Scotland.
50. Subsection (2) provides that the restriction created by subsection (1) does not apply to proceedings related to the operation of the ICRIR and its officers, or to judicial review proceedings or equivalent in Scotland relating to the exercise of functions or the conduct of a person other than the ICRIR.
51. Subsection (3) clarifies that the admissibility restrictions apply whether the material is in the form in which it was provided or in some other form, and whether the material is in the possession of the ICRIR itself or another person.
52. Subsection (4) provides that protected material obtained by the ICRIR from a relevant authority under section 5 is excluded from the admissibility restriction created by this section.
53. Subsection (5) creates relevant definitions, including the definition of "civil proceedings", which does not include family proceedings in each of the UK’s three jurisdictions.

Reviews of deaths and other harmful conduct

Section 9: Requests for reviews of deaths

54. This section specifies who may make a request of the ICRIR to take forward a review into a death resulting from the Troubles.
55. Subsection (1) provides that a close family member of the deceased can make a request for a review (the meaning of "close family member" is given in Part 1 of Schedule 3). Subsection (2) provides that if the deceased has no close family members, any family member can make a request if it is appropriate for them to do so. Subsection (7) provides that it is for the Commissioner for Investigations to decide whether such a request is appropriate.
56. Subsection (3) provides that the Secretary of State for Northern Ireland may request a review of any death caused by conduct forming part of the Troubles. Under subsection (4), the Attorney General for Northern Ireland has a similar power in relation to deaths caused directly by such conduct. Subsection (5) states that the Advocate General for Northern Ireland may make such requests if certain national security interests apply.
57. Subsection (6) lists additional office holders who may request a review of a death caused directly by conduct forming part of the Troubles:
    1. a coroner in Northern Ireland who was responsible for an inquest into that death which has been closed as a result of the operation of other provisions in the Act;
    2. a senior coroner in England and Wales who who was responsible for conducting an investigation into that death which has been discontinued under other provisions of the Act;
    3. the Chief Coroner of England and Wales, if the Chief Coroner is prohibited by paragraph 2 (4) of Schedule 1A to the Coroners and Justice Act 2009 from directing a senior coroner to conduct an investigation into the death;
    4. a sheriff in Scotland who was responsible for conducting an inquiry into that death which has been discontinued under other provisions of the Act;
    5. the procurator fiscal in Scotland who was responsible for conducting an investigation into that death which has been discontinued under other provisions of the Act;
    6. the Lord Advocate, if the Lord Advocate is prohibited by paragraph 3(a) of Schedule A1 to the Inquiries into Fatal Accidents and Sudden Deaths etc. Act 2016 from exercising functions so as to cause an inquiry to be held into the death.
58. Subsection (8) provides that requests must be made within the first five years of the ICRIR’s period of operation (which begins on the day section 2(5) is brought into force).
59. Subsection (9) defines a death caused directly by conduct forming part of the Troubles as one wholly caused by physical injuries or physical illness, or both, that resulted directly from an act of violence or force, which was conduct forming part of the Troubles.
60. Subsection (10) defines terms used in this section.

Section 10: Requests for reviews of other harmful conduct forming part of the Troubles

61. This section provides for requests for reviews into other harmful conduct forming part of the Troubles (conduct causing a person to suffer harm of any kind, excluding death).
62. Subsection (1) provides that a person who suffered serious physical or mental harm caused by conduct forming part of the Troubles may request the ICRIR to take forward a review into that conduct. "Serious physical or mental harm" is defined in section 1(6).
63. Subsection (2) provides that the Secretary of State may request a review of other harmful conduct forming part of the Troubles regardless of whether it caused serious physical or mental harm to any person.
64. Subsection (3) provides that requests must be made within the first five years of the ICRIR’s period of operation.

Section 11: Requests for reviews: general provision

65. This section makes general provision about requests for reviews and how the ICRIR is to deal with such requests.
66. Subsection (1) provides that the person making a request may include particular questions about the death, or other harmful conduct, to which the review will relate.
67. Subsection (2) provides that the Commissioner for Investigations is to decide the form and manner in which requests for reviews are to be made and in what circumstances requests may be amended or withdrawn. Subsection (3)) gives the Commissioner for Investigations a power to reject a request where it has not been made in the required form or manner. Subsections (4) and (5) deal with the situation where a request is made which relates to a death or other harmful conduct in respect of which a separate review is ongoing, and allow the Commissioner for Investigations to reject the new request or, to treat the person(s) making it as if they had joined in the request which had resulted in the ongoing review.
68. Subsections (6) to (8) give the Commissioner for Investigations the power to deal with requests which relate to a death or other harmful conduct in respect of which a review has already been carried out. In deciding how to deal with such requests (which may include rejecting them), the Commissioner for Investigations must take into account the review which has already been carried out and must not do anything which duplicates any aspect of that review, unless the ICRIR considers duplication is necessary.

Section 12: Reviews in connection with requests for immunity from prosecution

69. This section provides that the ICRIR may carry out a review of a death or other harmful conduct forming part of the Troubles, if a person requests immunity from prosecution from the ICRIR, and if it appears to the Commissioner for Investigation that relevant conduct by the person requesting immunity caused, relates to, or is otherwise connected with the death or physical or mental harm concerned. "Relevant conduct" in this section means conduct by the person requesting immunity that is relevant to their request.

Section 13: Conduct of reviews

70. This section sets out the functions and responsibilities of the Commissioner for Investigations in relation to the conduct of ICRIR reviews, over which the Commissioner for Investigations has operational control (see subsections (2) and (3). Subsection (1) provides that the Commissioner must comply with obligations under the Human Rights Act 1998 when exercising functions under the section – note that this does not limit the Commissioner’s duty to comply with the same obligations when exercising other functions (see subsection (11)).
71. Subsection (4) imposes a duty on the Commissioner for Investigations to ensure that each review is carried out, subject to the exceptions provided for in subsection (10).
72. Subsection (5) requires that the Commissioner for Investigation ensures that every review looks into all the circumstances of the death or other harm conduct to which it related, regardless of whether a criminal investigation forms part of that review.
73. Subsection (6) requires the Commissioner for Investigation to decide in each case how and when a review is to be carried out, including by deciding whether different reviews should be carried out in conjunction with each other (for example where a particular incident resulted in multiple deaths). The Commissioner is also required to decide on the steps necessary in carrying out the review (for example, any investigative measures that may be required). In particular, the Commissioner must decide in each case whether a criminal investigation is required as part of the review (see subsection (7)).
74. Subsection (8) provides that, when deciding what steps are necessary in carrying out the review, the Commissioner must take into account any investigation previously carried out by any other person into the death or other harmful conduct to which the review relates (for example a previous police or coronial investigation). The Commissioner must also ensure that the ICRIR does not do anything which duplicates any aspect of a previous investigation save where necessary. Under subsection (9), when deciding what steps are necessary, the Commissioner for Investigation is to have regard to certain matters in particular, so far as they are relevant. These matters are: any particular questions which the person requesting the review may have asked, whether the review is likely to lead only to the production of a final report, any related request for immunity from prosecution, and the likelihood that information obtained through the review will be passed to a prosecutor.
75. Subsection (12) gives meaning to certain terms used in the section.

Section 14: Supply of information

76. This section gives the Commissioner for Investigations powers to require persons by notice to provide information and other material in connection with the ICRIR’s review function.
77. Subsection (2) provides that the Commissioner for Investigations may, by notice, require a person to attend at a time and place stated in the notice, in order to provide information, documents or any other thing in the person’s custody or under the person’s control. The meaning of being "under a person’s control" is given in subsection (8).
78. Subsection (3) provides that the Commissioner for Investigations may, by notice, require a person to provide information, documents or any other thing in the person’s custody or under the person’s control within a reasonable time period.
79. Subsection (4) provides that the notice must explain the potential consequences of not complying and how the person can make a claim that they are unable to comply with the notice. Under subsection (5) any such claim is to be determined by the Commissioner for Investigations, who may revoke or vary the notice on the grounds that the person is unable to comply or that circumstances mean that it would be unreasonable to require them to comply.
80. Subsection (6) provides that when deciding to revoke or vary a notice on the basis that it is unreasonable to require a person to comply with the notice, the Commissioner for Investigations must consider the public interest in the information in question being obtained and its likely importance.
81. Subsection (7) provides that, where relevant authority claims (a) that requiring a particular person to comply with a notice would amount to a breach of the ICRIR’s duties under section 4(1)(a) or (b) (duty not to prejudice national security or the life or safety of individuals), but (b) those duties would not be breached if the same notice were to be complied with by a different person nominated by that authority, the Commissioner for Investigation is to determine the claim and may vary the notice so as to require the nominated person to comply with it, or may revoke the notice.
82. Subsection (9) gives effect to Schedule 4 which makes provision about enforcement of notices under this section.

Section 15: Production of reports on the findings of reviews

83. This section applies where a review has been carried out by the ICRIR and requires the Chief Commissioner to produce a final report on the findings of the review (subsection (1)).
84. Subsection (3) stipulates that where questions were included in the request for a review, the final report must include the ICRIR’s responses to those questions, if and to the extent it has been practicable to respond to them when carrying out the review. Where it has not been practicable for the ICRIR to respond to a question, the Chief Commissioner must include a statement to that effect in the final report.
85. Under subsection (4), the final report must include a statement of the manner in which the review was carried out.

Section 16: Consultation on reports

86. This section imposes obligations on the Chief Commissioner to consult various individuals before a report containing the findings of a review can be finalised. Subsection (1) imposes an obligation on the Chief Commissioner to share a copy of a draft of the report with the person who requested it (where applicable), and to allow that person to make representations during the applicable response period (this is a period of 30 days beginning with the date on which the draft is shared, extendable by the Chief Commissioner if there is good reason – see the relevant definition in subsection (11)).
87. Subsection (2) applies where the review is of a death, following a request under section 9 or where the review was initiated by the ICRIR under section 12(2)and requires the Chief Commissioner to share the draft report with any relevant family members of the person to whose death the review relates; any relevant family members of any other persons killed in the relevant event; any person who suffered serious physical or mental harm in the relevant event or, where such a person has subsequently died, any relevant family members of the person. "Relevant family member" has the meaning given by Part 2 of Schedule 3 (see subsection (11)). Where a draft report is shared with a person under this subsection, they are to be allowed to make representations about the report during the applicable response period.
88. Subsection (3) makes similar provision to subsection (2), but in relation to reviews of other harmful conduct carried out following a request under section 10, or where the review was initiated by the ICRIR under section 12(3).
89. Subsections (4) and (5) impose, respectively, consultation requirements in respect of any review, where the Chief Commissioner is proposing to include in the final report material criticising a living individual or a public authority. These terms are defined in subsection (11). Where these duties arise, the Chief Commissioner is required to share a copy of the relevant critical material with the individual or public authority concerned, and to allow that individual or public authority to make representations within the applicable response period.
90. Subsection (6) provides that the Chief Commissioner must not produce the final report until after any applicable response period has ended or, where two or more persons are consulted and the applicable response periods end on different days, after all of those periods have ended.
91. Under subsection (7), the Chief Commissioner may exclude material included in the draft of the report from the final report if they consider it would not be in the public interest for that material to appear in the final report. If the Chief Commissioner considered that the draft report contained material which fell to be excluded under this subsection, that would not prevent the Chief Commissioner from making consequential changes to the draft, for example if there was a way of rephrasing the material in a way which did not offend the public interest.
92. In deciding whether to exclude material under subsection (7), the Chief Commissioner must take account of any representations made in accordance with the provisions of this section (defined as the "consultation provisions" in subsection (11)).
93. Subsection (9) provides that where the Chief Commissioner has consulted a person under this section, this Chief Commissioner is not required to provide that person with a revised draft. Subsection (10) clarifies that where the Chief Commissioner is required to share a draft of the final report with two or more persons under this section, they need not all be provided with exactly the same draft.
94. Subsection (11) defines, among others, the terms "applicable response period", "relevant family member", "material criticising an individual" and "relevant event".

Section 17: Issuing and publication of reports

95. This section makes provision for when the Chief Commissioner produces a final report on the findings of a review in accordance with section 15.
96. In the case of a review carried out following a request made under section 9 or 10, the Chief Commissioner is required to give the final version of the report to the person who made the request, and must also publish the final report (see subsection (2)).
97. Where a review has been carried out following a decision by the ICRIR under section 12 (a review in connection with a request for immunity from prosecution), the ICRIR is not required to publish the final report but may do so (see subsection (3)). When deciding whether to publish the final report in such a case, the Chief Commissioner must take into account the views of relevant family members and those who suffered serious physical or mental harm in the same incident. The meaning of "relevant family members" is given in Part 2 of Schedule 3. Under subsection (5) the ICRIR must take reasonable steps to identify and obtain the views of these individuals.
98. Under subsection (6), if the Chief Commissioner decides not to publish the final report in a case to which subsection(3) applies, the Chief Commissioner must still publish the statement of the manner in which the review was carried out that is included in the final report in accordance with section 15(3).
99. Subsection (7) provides that it is for the Chief Commissioner to decide the manner in which the report or any statement is to be published.
100. Under subsection (8), the Chief Commissioner may give the designated persons under Part 4 summaries of any final reports which are not published.
101. Subsection (9) defines "relevant event" and "relevant family member".

Section 18: Reports: general provision

102. This section contains general provisions in relation to reports. Subsection (1) requires the Chief Commissioner to produce and issue a report under sections 15 to 17 as soon as is practicable after the review has been carried out.
103. Subsections (2) to (4) make special provision for "excepted reviews". These are reviews which have resulted in a referral to prosecutors under section 25 (see subsection (3)). Subsection (2) provides that the duty under subsection (1) does not apply to producing under section 15 and giving and publishing under section 17(2) and (3), the final report on the findings of an excepted review, or publishing under section 17(6) the statement of the manner in which an excepted review was carried out. Instead, in such cases, the final report must not be produced and published (or the statement published) unless and until any related ongoing prosecution process has concluded (see subsection (4)).
104. Subsection (5) provides that sections 16 and 17 and this section do not require the Chief Commissioner to (a) give a copy of a draft of the report, material which it is proposed to include in a final report, or a final report, to any person, or (b) to publish a final report, unless the Chief Commissioner can do so in accordance with sections 4(1) and 29(2).
105. Subsection (6) points to paragraph 8 of Schedule 6 which makes provision about (a) other material that must be included in the report, and, (b) circumstances in which a new report must be produced.
106. Subsection (7) applies paragraph 3(2)(d) and (e) of Schedule 5, which set out the circumstances in which a prosecution is to be treated as continuing, for the purposes of this section. Subsection (8) defines further terms used in the section.

Immunity from prosecution

Section 19: Immunity from prosecution

107. This section sets out the conditions which need to be met for the ICRIR to grant immunity from prosecution, and how a grant of immunity should be formulated where those conditions are met. Subsection (1) imposes a duty on the ICRIR to grant immunity from prosecution in a case where each of conditions A to C are met.
108. Subsections (2), (3) and (5) establishes conditions A to C respectively:
     1. The person has requested immunity from prosecution.
     2. The immunity requests panel (see section 22) is satisfied that the person has provided an account which is true to the best of their knowledge and belief and which describes conduct by that person which forms part of the Troubles.
     3. The panel is satisfied that the person’s conduct, as described by them in their account, would tend to expose that person to a criminal investigation for suspected involvement in, or to prosecution for, one or more particular serious or connected Troubles-related offences identified by the panel. (For the purposes of determining whether this condition is met, subsection (6) requires the panel to disregard the effect of the restrictions on criminal investigations and prosecutions created elsewhere in the Act in relation to such offences, and also the effect of other law which might otherwise prevent a prosecution, for example abuse of process).
109. Subsection (4) provides that the account of the person applying for immunity may consist of or include information provided previously (whether directly to the ICRIR or otherwise) as long as the panel is satisfied that the information is true to the best of the person’s knowledge and belief.
110. Subsections (7) to (12) require the immunity requests panel to decide how to formulate the grant of immunity. Under subsection (7) the panel has three options, but whichever it chooses the grant of immunity must be broad enough in scope to cover all the serious or connected Troubles-related offences which the panel considers the person’s conduct, as described in their account, would tend to expose that person to investigation/and or prosecution for (so called "identified possible offences"). An award of general immunity - defined in subsections (9) and (10) - is likely to be appropriate in most cases, but the panel has the flexibility to grant specific immunity - defined in subsection (8) 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. Immunity (whether general or specific) can 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.
111. Subsection (13) sets out that the ICRIR must in writing notify the individual of the outcome of their application for immunity, and must, where the duty to grant immunity applies because each of the conditions A to C are satisfied, grant immunity in accordance with subsections (7) and to (12). Subsection (14) establishes that immunity can not be revoked except by a court under section 26. Subsection (17) provides that this section is subject to schedule 5, which sets out the circumstances in which immunity from prosecution must not be granted.

Section 20: Requests for immunity: procedural matters

112. This section makes provision relating to the process for requesting immunity from prosecution and for dealing with such requests.
113. Under subsection (1), a request for immunity is not valid if it is made after the end of the fifth year of the ICRIR’s period of operation (this begins on the day section 2(5) comes into force – see section 60). This restriction does not apply if, at the time the request is made, there is an ongoing review relating to conduct by the requestor which is relevant to their request for immunity.
114. Subsection (2) gives the Secretary of State the power to make rules on the procedures for making and dealing with requests for immunity (such rules are to be made by statutory instrument subject to the made negative procedure – see subsection (6)). Subsection (3) provides that it is for the Chief Commissioner to determine the procedures for making and dealing with requests for immunity, subject to any rules made under subsection (2).
115. Subsection (4) provides that a request for immunity is not valid if it is not made in accordance with any applicable procedure contained in rules made by the Secretary of State under subsection (2) or which has been determined by the Chief Commissioner under subsection (3).
116. Subsection (5) provides that it is for the Chief Commissioner to decide whether a request is valid.
117. Subsections (7) to (11) deal with the situation where the Chief Commissioner is unable to exercise some or all of the immunity functions, for example because of illness. Under subsection (7), the Chief Commissioner may nominate another person to temporarily exercise certain functions relating to the immunity process, including functions of the Chief Commissioner as a member of the immunity requests panel. The Secretary of State may make the nomination instead, if the Chief Commissioner is unable to do so (see subsection (8)).
118. Subsection (9) provides that certain persons cannot be nominated under subsection (7). Subsection (10) ensures the Act applies to the exercise of functions appointed by a person under subsection (7) in the same way it would apply as if the functions were being exercised by the Chief Commissioner. Subsection (11) defines "immunity functions" and "panel functions" for the purposes of these provisions.

Section 21: Determining a request for immunity

119. This section applies where a person makes a request for immunity from prosecution under section 19, and makes provision relating to the determination of that request.
120. Subsection(2) requires the ICRIR to take reasonable steps to obtain information which the Commissioner for Investigations knows or believes is relevant to the question of the truth of P’s account.
121. Under subsection (3) the panel, when forming a view on the truth of the applicant’s account, have to take into account previous information given by the individual, and any other relevant information the ICRIR has received. Subsection (3) places a duty on the panel to take into account all relevant information when forming a view on the truth of the account of the person requesting immunity. This includes information obtained pursuant to the duty under subsection (2), as well as information already in the possession of the ICRIR. The latter includes information obtained by the ICRIR through a review, and information obtained through another type of investigation previously carried out by any other person (see subsection (4)).
122. Subsection (5) clarifies that the immunity requests panel is not prevented from forming a view on the truth of the applicant’s account in cases where the ICRIR could have initiated a review under section 12 in relation to the applicant’s request but decided not to do so.
123. Subsection (6) places a duty on the Chief Commissioner to issue guidance about when Conditions B and C set out in subsections 19(3) to (5) are met. Under subsection (7) this may include guidance about ascertaining whether an account of a person’s conduct is true to the best of that person’s knowledge and belief (in relation to Condition B), whether conduct is possible criminal conduct, and whether information is an account of possible criminal conduct (relevant to Condition C).
124. Subsection (8) creates a similar duty on the Chief Commissioner to issue guidance about how a grant of immunity from prosecution should be formulated (decisions made by the immunity requests panel under section 19(7)).
125. Subsection (9) provides that the immunity requests panel must take account of guidance issued by the Chief Commissioner under subsection (6) or (8) when exercising functions to which that guidance relates.

Section 22: The immunity requests panel

126. This section makes provision relating to the immunity requests panel, which has the function of determining requests for immunity from prosecution. Subsection (1) deals with the composition of the panel, which must consist of the Chief Commissioner and two ICRIR officers nominated by the Chief Commissioner. Under subsection (2), the chair of the panel is to be the Chief Commissioner.
127. Under subsection (3), the Chief Commissioner has powers to remove an ICRIR officer panel member, and, in relation to ICRIR officer panel members who are not removed but who are unable to act, nominate a different ICRIR officer as a temporary replacement.
128. Under subsection (5), only ICRIR officers with appropriate legal qualifications and experience may be appointed to the panel (The Chief Commissioner will themselves be a current or former holder of high judicial office under Schedule 1). To ensure the ICRIR includes officers with the appropriate qualifications and experience, subsection (6) places a duty on the body to ensure it employees or seconds as officers at least two persons who meet these requirements. Subsection (7) provides that functions conferred on the immunity requests panel are to be treated as functions of the ICRIR, exercisable by the immunity requests panel on behalf of, and in the name of, the body.

Section 23: Personal statements by persons affected by deaths etc

129. This section requires the Chief Commissioner to give individuals affected by a Troubles-related death or other harmful conduct the opportunity to provide personal statements to the ICRIR about the ways in which and degree to which they have been affected.
130. Subsection (1) sets out when this duty applies -where the ICRIR is carrying out a review following a request, and where a person has requested immunity from prosecution (whether or not a review has been initiated in relation to that request).
131. Under subsection (2), the Chief Commissioner must give eligible persons the opportunity to provide a personal statement. Subsections (5) to (8) deal with who is eligible to provide a statement. Those eligible are each close family member of the deceased (where the duty arises in relation to a death) or each close family member of the injured person (where the duty arises in relation to other harmful conduct) who are known to the ICRIR. If there are no known close family members, each other family member of the deceased or injured person known to the ICRIR must be given the opportunity if the Chief Commissioner considers it appropriate. "Close family member" has the meaning given in Part 1 of Schedule 3.
132. Under subsection (3), a person who provides a personal statement must be given the opportunity to supplement it, if they wish.
133. Subsection (4) gives meaning to the term "personal statement", for the purposes of the section, including by providing that such a statement may relate to the effects of the relevant Troubles-related events on the person who provided it, as well the effect on "other relevant persons". This term is defined in subsections (6) and (9), and includes family members of a deceased person to whom a review relates, family members of another person killed in the relevant event, persons who suffered serious or mental harm in the relevant event but who have subsequently died, and family members of such persons.

Section 24: Publication of personal statements

134. This section requires the Chief Commissioner to publish a personal statement provided under section 22 and makes related provision.
135. Subsections (1) and (2) provide that where an eligible person provides a personal statement in accordance with section 23, and that person notifies the Chief Commissioner of their wish that the statement should be published, the Chief Commissioner must publish the statement.
136. Under subsection (3), the duty to publish a personal statement does not apply if publication of it would breach the ICRIR’s duties under section 4(1) (safeguards relating to prejudice to national security, risk of harm to individuals, or prejudice to criminal proceedings) or under section 30(2) (restrictions on disclosure of certain information). The duty also does not apply if the Chief Commissioner considers publication would be contrary to the public interest. Where subsection (3) operates to prevent publication, subsection (4) requires the Chief Commissioner to produce an edited version of the personal statement which can be published instead, where this is possible. The edited version must not be published without the agreement of the person who provided the original personal statement (subsection (5)). Subsection (6) clarifies that the Chief Commissioner will not be in breach of his obligations under the section if an edited version of a personal statement is not published because the person who provided the original statement will not agree to publication in the edited form.
137. Subsection (7) provides that the publication duties created by the section do not apply if, and for as long as, section 18(2) to (4) has the effect of suspending the duty to publish any related final report.
138. Subsection (8) requires the Chief Commissioner to give the person who submitted the personal statement the reasons for any decision to publish an edited version of the statement instead of the original, or any decision to publish neither the original statement nor an edited version (because it is not possible to produce an edited version).
139. Subsections (9) and (10) give meaning to certain terms used in this section.

Information for prosecutors

Section 25: Information for prosecutors

140. This section applies where a review has been carried out by the ICRIR and gives the Commissioner for Investigations a power to refer a case to prosecutors and governs how that discretion should be exercised.
141. Subsection (2) applies where the Commissioner for Investigations considers there is evidence that relevant conduct constitutes an offence under the law of Northern Ireland by an individual whose identity is known to the Commissioner. "Relevant conduct" has the meaning given by subsection (7), and is the conduct which caused the death, or the other harmful conduct, to which the review relates, as well as any other conduct that relates to, or is otherwise connected to it. Where subsection (2) applies the Commissioner for Investigations may refer the conduct to the Director of Public Prosecutions for Northern Ireland and, if conduct is referred, must notify the prosecutor of the offence(s) concerned.
142. Subsection (3) makes similar provision but in relation to conduct constituting an offence under the law of England and Wales, where a referral lies to the Director of Public sections (for England and Wales). Subsection (4) makes similar provision for offences under Scots law (where a referral is to be made to the Lord Advocate), but is subject to the power of direction under subsection (5).
143. Under subsection (5), the Lord Advocate has the power to direct that a referral (and notification) be made under subsection (4), and the Commissioner for Investigation must comply with such a direction unless the person concerned has been granted immunity from prosecution under section 19 for the offence concerned.
144. Subsection (6) requires that when referring a case to a prosecutor, the Commissioner for Investigations must; provide such information and material relating to the relevant conduct as the Commissioner considers appropriate and, if requested to do so by the prosecutor, must supply such further information or material as it is practicable to obtain.

Section 26: Subsequent convictions: revocation of immunity

145. This section makes provision for the revocation of a grant of immunity from prosecution where a person is convicted of certain criminal offences.
146. Under subsection (1), a criminal court sentencing a person convicted of an offence under section 27 (false statements) must, where the offence was committed in the course of that person requesting immunity from prosecution under section 19, revoke any grant of immunity from prosecution made as a result of that request.
147. Subsection (2) applies where a person who has been granted immunity from prosecution is subsequently convicted of a terrorist offence or an offence with a terrorist connection, committed after immunity was granted. In those circumstances the sentencing court must revoke every grant of immunity given to the person before the offence was committed. Subsection (3) explains what a "terrorist offence" and an "offence with a terrorist connection" means in each of the three UK criminal jurisdictions for the purposes of this section.
148. Subsection (4) clarifies the application of subsection (2) in cases where the relevant terrorist offence or offence with a terrorist connection is committed over a period of time, and a grant of immunity from prosecution is given at any time during that period. Subsection (5) makes clear that revocation of immunity under this section is immediate, and also clarifies that revocation of a grant of immunity does not prevent a person from making a further request. (Part 2 of Schedule 5 deals with requests that overlap with revoked immunities, and precludes a person being granted immunity from prosecution for offences which were within the scope of a previously revoked grant of immunity).

Section 27: False statements: offence

149. This section creates a new criminal offence of making a false statement to the ICRIR in connection with any of its functions under sections 19 to 22 (functions relating to grants of immunity from prosecution).
150. Subsection (1) creates the offence of making a false statement. Subsection (2) explains that for the purposes of the offence, a person makes a false statement either by making a statement which that person knows to be false (in a material respect), or by recklessly making a statement which is false (in a material respect).
151. Subsection (3) sets out the penalties in each of the three UK jurisdictions which apply if a person is convicted of the new offence. Where a person is convicted on indictment they are liable to imprisonment for up to 2 years and/or an unlimited fine. For summary conviction the maximum penalties vary depending on the jurisdiction.
152. Under subsection (4), a prosecution for the new offence may only be brought in Northern Ireland by or with the consent of the Director of Public Prosecutions for Northern Ireland. Equivalent provision is made in respect of prosecutions in England and Wales.

The historical record of deaths

Section 28: Production of the historical record

153. This section makes provision for a record of deaths that resulted from conduct forming part of the Troubles. The ICRIR has the function of producing the historical record (see section 2(5)(f)) and this section sets out how the body is to discharge that function.
154. Subsection (1) states that the record must be a single document giving an account of the circumstances of all relevant deaths. These are deaths defined in subsection (8) as deaths that resulted from conduct forming part of the Troubles, except for those that have been the subject of reviews carried out by the ICRIR under section 13. Subsection (2) places a duty on the ICRIR to take all reasonable steps to identify all deaths caused by conduct forming part of the Troubles, and to identify and obtain information about relevant deaths which is publicly available, and any other information about such deaths which is likely to be useful for the purposes of producing the historical record. Subsection (7) provides that the ICRIR may in particular take into account cost when deciding whether it is reasonable to take a particular step for the purposes of subsection (2).
155. Subsection (3) permits the ICRIR to contact people to ask for information in connection with the historical record, but subsection (4) prohibits the ICRIR from requesting information from certain people with a family or personal connection to the deceased person or the relevant events. This prohibition does not apply if the person is being asked in a professional capacity (subsection (5)).
156. Subsection (6) provides that a person may provide information if requested to do so by the ICRIR under this section, but only if the provision of the information would not breach obligations of confidence or other legal restrictions on the disclosure of the information.

Section 29: Publication of the historical record

157. Subsection (1) places a duty on the ICRIR to publish the historic record. Subsection (2) provides that it is for the ICRIR to decide the manner in which the historical record is to be published and subsection (3) states that the ICRIR is not required to publish the historical record unless (and until) it can do so in accordance with sections 4(1) and 30(2).

Information

Section 30: Disclosure of information: general power and prohibitions

158. This section provides that the ICRIR may disclose any information it holds to any other person subject to certain prohibitions. The prohibitions are listed in subsections (4) to (9) as follows:
     1. Prohibition A applies where the Commissioner for Investigations has identified that the information is sensitive information (as defined in section 60).
     2. Prohibition B applies where a relevant authority has informed the Commissioner for Investigations that the information is sensitive information.
     3. Prohibition C applies where the Secretary of State has informed the Commissioner for Investigations that the information is protected international information (as defined in section 60).
     4. Prohibition D applies where the disclosure of the information would contravene the ICRIR’s duties under section 4(1).
     5. Prohibition E applies where the disclosure of the information would be in breach of the data protection legislation. "The data protection legislation" has the meaning given by section 3(9) of the Data Protection Act 2018.
     6. Prohibition F applies where the disclosure of the information would be in breach of certain provisions of the Investigatory Powers Act 2016.
159. Subsection (3) provides that prohibitions A to D do not apply if the disclosure of information is permitted by Schedule 6 to the Act (which is introduced by subsection 10).
160. Subsection (11) introduces Schedule 7, which creates offences relating to disclosure of information.

Section 31: The ICRIR’s use of information obtained by it

161. Subsection (1) sets out that information obtained by the ICRIR under section 5 or through the exercise of police powers (as defined in subsection (6)) may only be used for the purpose of, or in connection with, exercising any function of the ICRIR except that of producing the historical record.
162. Subsection (2) sets out that information obtained by the ICRIR under section 14 may only be used for the purpose of, or in connection with, the exercise of the review function.
163. Subsection (3) makes clear that subsections (1) and (2) do not authorise the ICRIR to supply information to any other person.
164. Subsection (4) stipulates that subsections (1) and (2) do not apply to information once it has been: a) contained in a final report produced in accordance with section 15; or b) published by the ICRIR in accordance with the provisions of this Act.

Section 32: Identifying information that is subject to additional safeguards

165. This section introduces Schedule 8 to the Act, which makes provision about the identification of, sensitive, or prejudicial, or protected international information.

Section 33: Guidance and protocols relating to information

166. Subsection (1) provides that the Secretary of State may give guidance to the ICRIR, the Chief Constable of the Police Service of Northern Ireland, chief officers of police forces in Great Britain, the Police Ombudsman for Northern Ireland, the Director General of the Independent Office for Police Conduct, The Police Investigations and Review Commissioner, Northern Ireland departments and Scottish ministers about the identification of sensitive information. Subsection (2) provides that recipients of such guidance must have regard to it when identifying information in accordance with Schedule 8.
167. The authorities listed include all the policing bodies across the United Kingdom that may be required to assist the ICRIR to make effective use of material provided (as per section 5). For instance, if a relevant policing authority needed to explain a reference on a document on their file system to the ICRIR, the ICRIR could request the relevant Chief Constable provide such assistance and the Chief Constable could not refuse this request.
168. The Government does not believe it is necessary to widen this requirement to include the National Crime Agency, as we do not believe they will hold a significant enough amount of potentially relevant material for the ICRIR.
169. Subsection (3) provides that the Secretary of State may also give guidance to the ICRIR regarding the exercise of its functions in accordance with section 4(1)(a). Subsection (4) sets out that the ICRIR must have regard to such guidance when exercising the functions to which the guidance relates.
170. Subsection (5) provides that an information disclosure protocol may be agreed between the ICRIR and one or more relevant authorities, or persons listed in paragraph 3(2) of Schedule 5. A definition of "information disclosure protocol" is provided at subsection (6). "Relevant authority" has the meaning given in section 60.

Section 34: Regulations about the holding and handling of information

171. This section confers a regulation-making power on the Secretary of State to make provision regarding the holding and handling of information by the ICRIR.
172. Subsection (2) allows the Secretary of State in the regulations to:
     1. make provision about notifications to be given by the ICRIR the information it holds;
     2. make provision about measures for holding and handling information securely;
     3. regulate how the ICRIR may destroy or transfer information once it ceases to be held;
     4. make provision about guidance or consultation;
     5. confer functions on the Secretary of State any other person (as well as on the ICRIR);
     6. create criminal offences.
173. Subsection (3) clarifies that this can include provision about information which has been identified as sensitive, prejudicial or protected international information. Subsection (4) provides that any criminal offence created in regulations under this section may only apply to the conduct of a person who is or at some point has been: a Commissioner of the ICRIR; an officer of the ICRIR; or an ICRIR contractor. It also states that any such offence may not impose a penalty greater than that imposed for an offence under Schedule 7 (offences relating to disclosure of information) of this Act.
174. Subsection (5) deals with the Parliamentary procedure applicable to regulations made under this section (negative).

Biometric material

Section 35: Biometric material

175. This section confers a regulation-making power on the Secretary of State to make provision in relation to DNA profiles derived from DNA samples, and fingerprints, taken before 31 October 2013 (defined for the purposes of the section as "biometric material" in subsection (4).
176. Subsection (1) allows the Secretary of State to designate (in regulations) a collection of biometric material for the purposes of the section ("designated collections"). Regulations may provide for biometric material in such collections not to be destroyed, if destruction of the material would otherwise have been required under any of the provisions of law listed in subsection (4) ("destruction provisions"). Biometric material which has not been destroyed by virtue of regulations made under this subsection is defined in subsection (4) as "preserved material". Regulations under this subsection may also provide for preserved material to be retained, to be used for the purposes of, or in connection with, the exercise of the ICRIR’s functions (except the production of the historical record), and to be destroyed.
177. Subsection (2) applies where regulations made under subsection (1) provide for the retention of preserved material, and obliges the Secretary of State to include as part of those regulations requirements for the ICRIR to carry out periodic reviews of the need to retain that material. Further, where provision is made for the retention of preserved material, regulations must require that preserved material is to be destroyed no later than a reasonable period after the conclusion of the ICRIR’s work.
178. Subsection (3) provides that regulations made under this section are subject to the negative Parliamentary procedure.
179. Subsection (4) contains definitions used in the section.

Section 36: Review of the performance of the ICRIR’s functions

180. This section provides that the Secretary of State must carry out a review of the ICRIR’s performance of its function set out in section 2(5). The review must be carried out by the end of the ICRIR’s third year of operations, and the Secretary of State must lay a copy of the review before Parliament.

Section 37: Conclusion of the work of the ICRIR

181. This section makes provisions for the conclusion of the work of the ICRIR. Subsection (1) allows the Secretary of State to make secondary legislation winding up the ICRIR, if satisfied that there is no longer a need for the body to exercise its functions. Regulations made by the Secretary of State under subsection (1) may deal with the transfer of property, rights and liabilities (subsection (2)), and may repeal or otherwise amend provisions in Part 2 of the Act (subsection (3)) with some exceptions.
182. Subsection (4) clarifies that consequential amendments included (by virtue of section 59(9)(b)) in regulations made under subsection (1) may include amendments to parts 4 and 5 of the Act or any legislation, whenever passed or made.
183. Subsection (5) states that the Secretary of State must consult the required consultees (defined in subsection (8) as the ICRIR and any other person the Secretary of State considers it appropriate to consult) when deciding whether to exercise the power to make regulations conferred by this section and before making regulations under this section. Subsection (6) provides that any regulations under this section are subject to the affirmative procedure in Parliament.
184. Subsection (7) provides that any draft instruments containing regulations under this section are not to be considered a hybrid instrument for the purpose of parliamentary procedure.