British Irish Rights Watch

On 25^th November 2004 the government laid the Inquiries Bill before the House of Lords. If passed, the Bill will make far-reaching changes to the system for establishing and running inquiries, including public inquiries as we currently know them. On 1^st December, British Irish rights watch sent a written submission to all members of the House of Lords, setting out our concerns about many provisions of the Bill. This is our second briefing to the House of Lords, as the Bill progresses to the Committee Stage for further debate.

While our interest in the Inquiries Bill stems from our work on several cases in Northern Ireland involving controversial murders, we wish to emphasise that our concerns about its terms relate to its impact on all future public inquiries. It is for this reason that when we made our submission we sought the input of other organisations and that the Law Society of England and Wales, the Scottish Human Rights Centre, and the organisation INQUEST, as well as the Committee on the Administration of Justice, all concurred with our analysis.

At the same time, we believe that it is important to consider the concrete impact of the Inquiries Bill on cases, be they real and current, or examples that may arise in the future. Only by discussing the Bill in light of such actual or potential cases is it possible to assess its implications for the basic human rights of individual victims and their families. In this regard, it is impossible to ignore the case of murdered Belfast solicitor Patrick Finucane, whose family has campaigned for a public inquiry for over fifteen years.

Following the recommendations of former Commissioner of the Metropolitan Police Sir John Stevens, and retired Canadian Supreme Court Judge Peter Cory, the government finally, in September of this year, committed itself to holding an inquiry in the Finucane case. Cogent evidence was found by the judge, and by Sir John Stevens, of army and police collusion with loyalist paramilitaries in this 1989 murder. Furthermore, the murder was only one of many that took place because of government approved policies on intelligence-gathering. However, it was at the same time as it made its commitment to hold an inquiry into the Finucane case that the government first mentioned the need to hold it under new legislation that would soon be introduced. Subsequently, the Secretary of State for Northern Ireland stated that large parts of the inquiry would need to be held in private, on grounds of national security. It was with great disappointment that the Finucane family announced that they could not accept such an inquiry and that they would not participate in it. British Irish rights watch (BIRW) supports their decision.

BIRW urges the members of the House of Lords during your examination of the Inquiries Bill in Committee to take into consideration the situation of families like the Finucanes and others who have lost loved ones in the course of some tragedy, whether it be a disaster in a football stadium, a train crash, or some other event, and their right to find out the truth about what happened and how it occurred. The Bill itself, and its Explanatory Notes, contain little or no reference to victims and their rights.

In addition, should the Bill be passed into law, its effect would be to enhance Ministerial and hence governmental control over a process that must of necessity be transparent, impartial and commanding of public confidence. Such politicisation of the inquiry process, especially where Ministerial or governmental conduct is at issue, is unlikely to fulfil one of the primary purposes of inquiries, which is to allay public concern, or to enhance respect for the rule of law.

We do not here reproduce the analysis of individual clauses of the Bill contained in our 1^st December briefing to the House of Lords, but instead pick up on several of the threads of discussion in the House on 9^th December. In addition, we respond to some of the points made by Baroness Ashton in her communications with us regarding the Bill. Finally, we seek to identify those clauses of the Bill that we consider most harmful to the idea of thorough, independent and public inquiries into events of great public concern, and propose their removal or amendment.

The government has said that the Inquiries Bill is needed in order to make inquiries more effective. However, in her introduction to it at Second Reading in the House of Lords on 9^th December 2004, Baroness Ashton admitted that the Bill would not lead to any reduction in the number of inquiries that are likely to be held. Equally, although the Bill includes measures for controlling the costs of inquiries, the government has not made the case that the Bill would save money. Nor did Baroness Ashton give a single example of an inquiry which would have been made more effective had the Bill been law. [1]

A case can certainly be made for bringing together and codifying the various different powers under which inquiries can currently be held, but the Bill goes far beyond that. It brings about a shift in the control of inquiries away from Parliament to the Executive and from inquiry chairs to government Ministers.

The question must arise: how exactly does the Bill make inquiries more effective, in whose interests and at whose expense?

During the debate in the House of Lords on 9^th December, many Lords expressed concern that the powers that the Bill would vest in Ministers would make Ministers less accountable, or even unaccountable, to Parliament. The Bill would also make it easier to cover up wrong-doing by Ministers or by the departments for which they are responsible. They also expressed considerable concern that Parliament would no longer have any role to play in the inquiry process.

BIRW is also concerned that those who have been affected by the incidents which give rise to the need for inquiries – the victims – may not even know what evidence was presented to an inquiry, nor what was said in the report. In these circumstances, they would be unlikely to regard the inquiry as effective. Nor would public concern be allayed by the exercise of such powers. As Lord Norton of Louth put it during the debate on 9^th December, “An inquiry must be independent and, crucial for the purpose of public confidence, must be seen to be independent.”

Baroness Ashton readily conceded that many effective inquiries have been held under the existing powers. She could only suggest that “deficiencies in the legislation could prevent us setting up inquiries in the most effective form” and talk of “potential risks to the effectiveness of an inquiry”. In our view, the question of what is an “effective” inquiry must be considered from the perspective of whether the inquiry is regarded by the affected individuals and the broader public as having got to the truth and whether it has contributed substantially to ensuring that the events being investigated are not repeated in future. If this is the end goal, we believe that many provisions of the Bill must be removed or amended.

As was pointed out by a number of Lords, the Bill has been introduced in advance of the report of the Public Administration Select Committee on the very topic of inquiries. No White Paper preceded the Bill, and it was not published in draft form, despite the very great changes it envisages.

The Department of Constitutional Affairs’ consultation on “Effective Inquiries” and its response to that consultation focussed mainly on non-statutory inquiries. The consultation did ask whether the Tribunals of Inquiries (Evidence) Act 1921 was “redundant”, but it did not explore the consequences of repealing that Act, nor did it canvas the sweeping changes contained in the Inquiries Bill.

Lady Ashton could only tell the House that the government wanted to make the benefits of the Bill available “as soon as possible”, and “we want to get on with it”. Members of the House of Lords may wish to probe the government on the need for this apparently unseemly haste. They may also wish to ask themselves whether the Bill is any better for it.

While Baroness Ashton has maintained in her communications with us that the Bill has been introduced at the present time simply “because it is ready,” she has not explained how that determination was made. It would surely have helped the government to produce a better Inquiries Bill had they waited until after they had had the benefit of the final report from the Public Administration Select Committee on its inquiry into “Government by Inquiry,” where many of the crucial issues that are raised by the Bill have been discussed.

BIRW fears that one reason for the haste with which this Bill is being introduced can be found in the government’s response to the recommendation from Judge Cory that a public inquiry should be held into the murder of Patrick Finucane. We are, indeed, not alone in this view. While giving evidence to the Public Administration Select Committee on 9^th December 2004, Sir Louis Blom-Cooper QC stated:

“From my perspective - and it is only my own perspective - I think the Bill is premature. I think some of the basic principles that we have been discussing today need to be sorted out before you launch into legislation. I think I know the reason why the Government is very keen to press ahead with the Inquiries Bill: it wishes to have the provisions of the Bill in place before they set up the inquiry into the Paddy Finucane case. I think that is the reason for haste. I may say that that does not seem to me to be a very good reason for not taking the opportunity of resolving some of the basic issues.”

In addition, in a Standard Note entitled “Investigatory inquiries” issued by the House of Commons Library on 29^th November 2004, Chris Sear writes that “a further impetus for change [to the legislation on inquiries] was the announcement of an Inquiry into the murder of Pat Finucane.”[2]

Particular concern was expressed in the House of Lords on 9^th December about the obliteration of any role for Parliament in the inquiry process, even when the behaviour of Ministers is under examination. Under the Bill, Parliament will have no power to establish a public inquiry. Inquiry reports will not be laid before Parliament. Presumably, Parliament will have little or no opportunity even to debate the findings of inquiries. Taken as a whole, the Bill seriously undermines the accountability of Ministers to Parliament.

Lady Ashton has argued that the Tribunals of Inquiry (Evidence) Act 1921, which the Bill would repeal, is very rarely used and does not provide the norm for inquiries. However, as Lord Howe and others pointed out, the fact that it is not often required does not mean that it is not required at all. It remains a powerful tool in the hands of Parliament on those rare occasions when it is appropriate that Parliament should order a public inquiry. We would argue that the case of Patrick Finucane, mentioned above, where more than one arm of the security services for which the Executive is responsible has been tainted by allegations of collusion, is just such a case in point. The concerns about events at Deepcut Barracks may be another.

Lady Ashton has also stated in a letter to BIRW that the 1921 Act “does not give Parliament the power to set up inquiries: it gives Parliament the power to pass resolutions to apply the statutory powers set out in the Act to an inquiry set up by a Secretary of State or by the Monarch … If Parliament passes resolutions, there is nothing in the Act to force the Secretary of State, or the Monarch, to establish an inquiry.” However, it is difficult to imagine a situation when a parliamentary resolution has been passed, stating that it is “expedient that a tribunal be established for inquiring into a definite matter described in the Resolution as of urgent public importance” [1921 Act, section 1(1)], where a Minister could refuse to appoint the necessary tribunal. The problem with the Inquiries Bill as currently formulated is that all references to parliamentary involvement in the decision to establish an inquiry are removed, and a reluctant Minister whose department may be the subject of allegations of wrong-doing can effectively prevent a public inquiry from being created to look into those allegations.

British Irish rights watch proposes that a new clause be added to the Inquiries Bill, stating that any MP or peer is entitled to put down a resolution before Parliament for the establishment of an inquiry into a matter of great public concern. The clause should further state that should Parliament adopt such a resolution, an inquiry must be established with the powers contained in the Inquiries Bill. Provision should also be made that the final report of such inquiries, as well as inquiries established on the initiative of Ministers, should be laid before Parliament. We do not believe that such a mechanism would increase the risk of frivolous inquiries, as a resolution would be unlikely to be passed, or even put down in the first place, unless the case for an inquiry was sufficiently convincing to a majority of members of both Houses of Parliament.

Many speakers in the House of Lords on 9^th December were concerned that Ministers would have control over virtually every aspect of an inquiry, from the terms of reference, to the appointment of the chair and panel members, to whether the inquiry sits in public, and to the publication of the report.

If the Bill becomes law, Ministers will set the terms of reference for inquiries, and will be under no duty to consult with anyone about those terms, not even the inquiry chair, let alone the victims for whose benefit the inquiry may be established [Clause 5]. Inquiry chairs will have no power to amend the terms of reference should it become desirable to do so.

In a letter to BIRW, Baroness Ashton stated that there is nothing in the Bill to prevent the chairman of an inquiry from approaching the Minister who has caused the inquiry to be established if it becomes apparent that there is a problem with the terms of reference. However, she also suggests that, should the terms of reference need to be changed, it would be necessary to end the inquiry and create a new one with a different remit. Lord Goodhart has made the comment that this seems like an “unnecessarily complicated procedure” and he and other members of the House of Lords stressed the importance of allowing for the terms of reference to be altered should it become clear that this is necessary. Lord Laming has also emphasised the importance of ensuring that the chair of an inquiry and the relevant Minister have a clear “meeting of minds” on the terms of reference.

We believe that all of these comments demonstrate the importance of creating a much broader procedure for determining the terms of reference of an inquiry, involving not only a Minister, but also requiring consultation with the chair and, in cases where there are identifiable victims of the events which have led to the inquiry, consultation with those victims. If such proper consultation were to take place, this should minimise the risk that the terms of reference might require to be altered. However, if the chair determines that such a change is indeed necessary then he/she should have the explicit power to request the necessary change. In addition, the Minister should not have the power to alter the terms of reference in any way without the consent of the chair, as suggested by Lord Goodhart.

We also have concerns relating to the possibility that funding could be refused by a Minister for parts of an inquiry where the Minister believes that the inquiry has strayed beyond its terms of reference [Clause 36(4)]. Baroness Ashton has stated in a letter to us that “without the limits in clause 36, inquiries funded by the taxpayer would theoretically be given a blank cheque for anything they wish to do.” This seems to assume the possibility of a rogue inquiry chair acting frivolously. Given that it is the Minister who appoints the chair, and in light of the high calibre of the chairs selected for recent public inquiries, this seems unlikely. Furthermore, should there be the broad consultation in the setting of the terms of reference discussed above, along with the possibility to change the terms of reference where necessary, this would further reduce the chances of an inquiry straying into prohibited territory.

BIRW proposes that Clause 5 of the Inquiries Bill should be amended as necessary to add a provision reading:

“Before setting the terms of reference, the Minister shall consult with the chair of the inquiry and any identifiable victims of the events being investigated by the inquiry.

Should the chair of the inquiry consider it necessary to amend the terms of reference after the setting-up date, he/she may request such amendment, following consultation with the victims. The Minister shall cause the terms of reference to be altered, as agreed with the chair.

The terms of reference, once agreed by the Minister and the chair of the inquiry, may not be altered without the consent of the chair and further consultation with the victims.”

BIRW has serious concerns about the level of Ministerial control over inquiries contained in the Inquiries Bill and its implications for the effectiveness of the investigation provided by inquiries. In particular, the powers of the Minister to issue notices restricting access to an inquiry’s proceedings, or to evidence given to an inquiry, or documents produced by an inquiry, may inhibit public scrutiny to such a degree that accountability is evaded [See Clause 17].

We do, of course, accept that there is some information, such as the names and addresses of witnesses whose lives may be put at risk, which should not be disclosed publicly. However, the Bill as currently framed places far too great a power in the hands of government to decide what information should and should not be made public. As stated by Lord Smith of Clifton in the House of Lords on 9^th December, “[i]n the wrong Ministerial hands, the Bill enables Ministers so to manipulate inquiries that more is concealed than revealed.”

The Bill provides a set of factors that must be taken into account when a Minister is determining whether it is in the public interest to issue a restriction notice [See Clause 17(3), (4) and (5)]. These factors include the avoidance of harm or damage to such things as national security, international relations and the economic interests of the UK, and damage caused by the disclosure of commercially sensitive information. Similarly, when a Minister is deciding whether or not to publish the final report of an inquiry, in whole or in part, he or she should have regard to these factors in determining whether it is in the public interest to withhold part or all of the report from publication [See Clause 23 (4), (5) and (6)].

In a letter to BIRW, Baroness Ashton assured us that “damage to the economy” would not outweigh human rights in any balancing being done to determine whether withholding publication of a report or of information submitted to an inquiry was in the public interest. She did not give us any such assurance with regard to consideration of damage to national security. Given the absence of any indication in the Bill on how potential damage to national security is defined or assessed, we are extremely concerned that a Minister may be able to withhold information or restrict public access to evidence or to an inquiry’s reports on vaguely-expressed national security grounds.

We were particularly disturbed by the response given by Baroness Ashton to our concerns in this regard, when she wrote to us saying: “It is true that some restriction notices will last indefinitely.… However, most restriction notices will be of shorter duration. … Those relating to records will last for only 30 years, after which time the records are no longer exempt from release under the Freedom of Information Act 2000.” This argument provides little comfort for those who lost family members during the course of some disaster and who seek, during their own lifetime, to find out the truth of what happened and how it occurred. It is also difficult to reconcile with the requirement of public scrutiny of investigations set out by the European Court in cases concerning violations of the right to life.

Ministers will argue that they always act in the public interest, and indeed the Bill obliges them in places to do so. However, as speakers in the debate on 9^th December pointed out, it is not always possible for Ministers to disentangle what is truly in the public interest and what is in the interests of Ministers themselves, or their departments, particularly when it comes to allegations of wrong-doing or matters with the potential to cause embarrassment. As Lord Laming said, “…it is absolutely essential that each and every inquiry must be seen to be independent of all special interests, which must include the government of the day.” Lord Kingsland rightly asked how it could conceivably be appropriate for a Minister to exercise the powers conferred by the Bill in relation to another Minister or even that Minister’s department.

One of the most important safeguards embodied in the present inquiry system is that the chair of an inquiry has been able to scrutinise documents and other evidence which a Minister has sought to withhold and to make an independent assessment of whether secrecy or non-disclosure is in the public interest. This safeguard is particularly important in cases where a Minister may be tempted to order the non-disclosure of information or documents in order to avoid embarrassment for himself, his department, or his Ministerial colleagues, yet the Bill seeks to remove it [See Clause 17(2)].

Furthermore, in serious cases that are of a nature to merit a public inquiry, it may be that some damage to government interests is the price that has to be paid in remedying a wrong that has been committed.

BIRW proposes that Clause 17 be substantially amended. We note, in particular, Section 2 of the 1921 Tribunals of Inquiry (Evidence) Act, which states:

(a) shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the tribunal unless in the opinion of the tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given; …”

We believe that this provision should be retained in the Inquiries Bill, making it clear that there is a presumption in favour of public access to all inquiry proceedings and it is for the inquiry chair and other panel members to determine whether the public should be excluded from particular portions of the proceedings.

Similarly, the power to issue notices or orders restricting public access to evidence submitted to an inquiry or any documents produced by an inquiry, including its final report, should rest with the inquiry chair and other panel members. Thus Clause 23 of the Inquiries Bill should be amended to require publication of the evidence put before an inquiry and of the final report of the inquiry in full, unless the chair of the inquiry orders that certain sections should not be disclosed.

Accountability through established mechanisms of public scrutiny is absolutely necessary in order to ensure confidence in government. While the Inquiries Bill makes clear that an inquiry cannot determine civil or criminal liability, it is, nonetheless, an important mechanism for ensuring accountability. Lord Laming stated in the House of Lords on 9^th December that “if a train crashes because the driver has gone through a stop light and he is then proved to be drunk while on duty, I would expect the blame to be stated very clearly …” and we agree with this position. A public inquiry is a hearing of last resort, where victims and their families may finally find out what went wrong, resulting in injury or death. Inquiries must, therefore, have the power to criticise and to apportion blame where it is merited.

The European Court of Human Rights has made clear that, with regard to cases involving violations of the right to life, the obligation of the state under Article 2 of the European Convention on Human Rights to provide an “effective investigation” cannot be satisfied unless such investigation is able to lead to the identification and punishment of those responsible.[3] Thus, if an inquiry is to satisfy the terms of Article 2, it must be able to identify those responsible for the death(s) in question.

The fundamental problem of the Inquiries Bill is that it removes the principle of independent scrutiny over the actions of government and government departments and agencies. If the aim pursued by the Bill is to create a more effective system for the establishment and running of inquiries, we believe that this can be done without the draconian powers granted to government Ministers by the Bill. Indeed, an inquiries system that permits close public scrutiny and provides for the active participation of the relevant victims would command greater public confidence and ultimately be more effective in establishing the facts and ensuring the non-repetition of the events in question. Democracy cannot be built on blind trust in the probity of Ministers, there must be checks and balances that ensure the accountability of those who exercise power on our behalf.

British Irish rights watch is an independent non-governmental organisation that monitors the human rights dimension of the conflict and the peace process in Northern Ireland. Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliation, and we take no position on the eventual constitutional outcome of the peace process.

[1] In her introduction to the 2^nd reading of the Bill in the House of Lords on 9^th December, Baroness Ashton referred to the inquiry into the death of Zahid Mubarek, stating that is has had to begin on a non-statutory basis, despite the fact that there would be clear value in having statutory powers available to it. Had the government sought to establish that inquiry under the Tribunals of Inquiry (Evidence) Act, 1921, it would indeed have had such statutory powers.

[2] Standard Note SN/PC/2599

[3] See Jordan v UK, ECtHR, 2001, at paragraph 115

BIRW SECOND BRIEFING TO THE

HOUSE OF LORDS

31 January, 2005 |