BIRW briefing to the House of Commons

THE INQUIRIES BILL: A QUESTION OF PUBLIC CONFIDENCE

Introduction

The Inquiries Bill is being rushed through Parliament at a rate that does not reflect the magnitude of the changes it seeks to impose on the way that major matters of public importance are inquired into in this country.  If passed, responsibility for inquiries will pass from independent chairs to government ministers.  Those ministers will decide whether there should be an inquiry; what its terms of reference should be; whether the inquiry will be held in public; whether evidence put before the inquiry will be made public; and whether the final inquiry report will be made public.  The Bill will repeal the 1921 Tribunals of Inquiry (Evidence) Act and there will no longer be any substantial role for Parliament to play in inquiries.  It will mean the end of public inquiries as we know them.  Just as there is great public disquiet about allowing government ministers to decide whether individuals suspected of terrorism should be deprived of their civil liberties, Parliament should think long and hard before it allows such a degree of political control over inquiries.  The Inquiries Bill has the potential for undermining public confidence in the ability of government to investigate matters that engage the public interest or to put things right when they have gone badly wrong.

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.  British Irish rights watch (BIRW) has followed the progress of the Bill with great interest and has issued three briefing papers to members of the House of Lords raising our major concerns about its provisions.  All of these papers can be found on our website (www.birw.org), along with our submission to the Joint Committee on Human Rights.  

While our interest in the Inquiries Bill stems from our work on several cases in Northern Ireland involving controversial murders, our concerns about its terms relate to its impact on all future public inquiries.  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 sixteen years.  BIRW urges all Members of Parliament to consider 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.  None of these families intentionally put themselves in the position where it becomes necessary to hold a public inquiry.  Rather, they are the unwilling victims of tragic events who find themselves calling for a public inquiry because all other avenues of redress have proved fruitless or ineffective.  However, the Bill itself, and its Explanatory Notes, contain little or no reference to such victims and their rights.

DEBATE AND COMMENT ON THE BILL THUS FAR

The Bill has been subject to vigorous debate in the House of Lords, with several peers expressing serious reservations about the extent to which it seeks to enhance Ministerial and hence governmental control over a process that must of necessity be transparent, impartial and commanding of public confidence.  Peers noted that 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, and to enhance respect for the rule of law.  Numerous amendments were tabled and discussed in the House of Lords, but ultimately many of its most disturbing provisions were left largely unaltered.  Nonetheless, the debate in the House of Lords highlights the fundamental problems with the Bill and should be read carefully.

In addition, following the introduction of the Bill in November 2004, two important parliamentary committees have issued reports that are critical of its content.  The Public Affairs Select Committee (PASC) conducted an inquiry into “Government by Inquiry” over a twelve months period and issued its final report on 3^rd February 2005.  The PASC published an “Issues and Questions Paper” in February 2004, and began receiving written and oral evidence in the spring of 2004.  The government’s Department of Constitutional Affairs issued a consultation document in May 2004, on “Effective Inquiries”, containing its response to the PASC Issues and Questions Paper and seeking further comments.  With the introduction of the Inquiries Bill to the House of Lords in November 2004, the PASC focused the latter part of its inquiry on the provisions and implications of the Bill.  Its final report contains substantial criticism of the Inquiries Bill and proposals for amendments to it.

The Joint Committee on Human Rights has also issued a preliminary and a final report on the Inquiries Bill, assessing its implications for the protection of basic human rights in the United Kingdom.  In these reports the Committee focuses on the need to ensure that inquiries into deaths that fall within the ambit of Article 2 of the European Convention on Human Rights are compliant with the obligation to provide an “effective investigation” as elaborated in the jurisprudence of the European Court of Human Rights.  The Committee concludes that several provisions of the Inquiries Bill may not be compliant with Article 2 in that they would inhibit an effective investigation into cases involving deaths, such as the Finucane case. 

Published correspondence between Lord Saville, who chairs the Bloody Sunday Inquiry, and DCA Minister Baroness Ashton relating to the Bill is also of great importance, as it demonstrates the serious reservations of a senior judge and chair of a complex current inquiry.  In particular, Lord Saville is concerned about Clause 20 of the Bill (formerly Clause 17), granting Ministers the power to issue notices restricting public access to inquiry proceedings and materials.  In a letter of 26^th January, Lord Saville states, “I take the view that this provision makes a very serious inroad into the independence of any inquiry and is likely to damage or destroy public confidence in the inquiry and its findings, especially in cases where the conduct of the authorities may be in question.”  He further stated that neither he nor his fellow judges on the BSI would be prepared to be appointed as a member of an inquiry that was subject to a provision of that kind.

British Irish rights watch concurs with the reservations expressed by Lord Saville, as well as with the analysis of the Joint Committee on Human Rights.  We also support many of the comments and recommendations made by the Parliamentary Affairs Select Committee.  We respectfully request that all Members of Parliament give serious consideration to the numerous criticisms of the Inquiries Bill and its potential impact, if passed, on current and future cases raising issues of great public concern.  In particular, we ask Members to consider the shift embodied in the Bill away from Parliament to the Executive, and away from inquiry chairs to government Ministers.  Just as it is inappropriate for a government Minister to have the power to deprive a terrorist suspect of his or her liberty, so it is inappropriate for a Minister to have the power to control a public inquiry, especially in cases where it is the conduct of government and its departments and agencies which is called into question.

The rationale for the bill

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 at Second Reading 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.

THE LACK OF CONSULTATION OVER THE BILL

The Bill was introduced in the House of Lords 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.

On questioning, Baroness Ashton told the House of Lords that the government wanted to make the benefits of the Bill available “as soon as possible”, and “we want to get on with it”.  While Baroness Ashton has maintained in her communications with BIRW 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 were discussed. 

NO ROLE FOR PARLIAMENT

One of the main concerns expressed in the House of Lords and shared by BIRW relates to the serious curtailment of the role of 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, as its powers in the Tribunals of Inquiry (Evidence) Act 1921 are removed by the repeal of that Act.  The House of Lords inserted a new clause into the Bill concerning cases where “ministerial misconduct” is in issue [Clause 7] but this simply permits a Minister “if he sees fit” to move a motion for a resolution from Parliament approving his or her proposal to establish an inquiry and its terms of reference.

Lady Ashton has argued that the Tribunals of Inquiry (Evidence) Act 1921 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 would refuse to appoint the necessary tribunal.  The problem with the Inquiries Bill as currently formulated is that 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 or would be able to obstruct an inquiry from conducting a full and effective investigation.

CONTROL OF INQUIRIES

Many members of the House of Lords 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.

(a) Establishing inquiries

If the Bill becomes law, Ministers will set the terms of reference for inquiries.  An amendment adopted in the House of Lords now requires the Minister to consult with the chairman before he or she sets the terms of reference, but there is no duty to consult with anyone else, including the victims for whose benefit the inquiry may be established [Clause 5].  Inquiry chairs will have no power to subsequently 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 suggested 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.  We believe that a 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, would 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 specific consent of the chair, rather than simply after consulting him/her [Clause 5(4)].

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 40(4)].  Baroness Ashton has stated in a letter to us that “without the limits in clause [40], 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.  The Joint Committee on Human Rights has also expressed concern that “the threat of withdrawal of funding by the Minister could unduly constrain the independence of an inquiry, and fail to satisfy the Article 2 requirement of an independent inquiry.”[2] 

(b) Running of inquiries

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 20]. 

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 the Minister to decide what information should and should not be made public.  As stated by Lord Smith of Clifton in the House of Lords on Second Reading, “[i]n the wrong Ministerial hands, the Bill enables Ministers so to manipulate inquiries that more is concealed than revealed.”  Despite the addition in the House of Lords of Clause 19, setting out a presumption of public access to inquiry proceedings, the operation of Clause 20 could still result in secret inquiries that would, as feared by Lord Saville, be “likely to damage or destroy public confidence in the inquiry and its findings, especially in cases where the conduct of the authorities may be in question.” 

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 20(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 26].

Baroness Ashton has 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 of Human Rights 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, 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. 

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 from the public and the chair makes 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 him or herself, his or her department, or his or her Ministerial colleagues, yet the Bill seeks to remove it.

The Joint Committee on Human Rights has expressed its concern about the potential for Ministerial interference with inquiries under the provisions of the Bill, despite arguments by the Lord Chancellor that “because it is theoretically possible for a power to be exercised incompatibly with Article 2 rights, does not mean the power itself is incompatible with Article 2 rights.”  In response to this, the Committee stated that “the independence of a tribunal is secured both by the institutional and legal structure in which it operates, and by the restraint and impartiality exercised in practice by those involved.  Even given the proper restraint by Ministers in the exercise of powers considered above, their availability in respect of an inquiry would risk affecting its independence, both actual and perceived.”[3]  With particular regard to the power of Ministers to issue restriction notices, the Committee concluded that “the independence of an inquiry is put at risk by ministerial power to issue these restrictions, and … this lack of independence may fail to satisfy the Article 2 obligation to investigate…”[4]  It further expressed concern that the ministerial power to withhold publication of all or part of an inquiry report is “wide enough to compromise the independence of an inquiry.”[5]

APPORTIONMENT OF BLAME

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 at Second Reading 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.[6]  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. 

CONCLUSION

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 excessive 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. 

March 2005

* * * * * *

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.

Home Back

For Peace Justice & Human Rights

 08 March, 2005 |