SUBMISSION TO THE JOINT COMMITTEE ON HUMAN RIGHTS

THE INQUIRIES BILL: AN END TO PUBLIC INQUIRIES

SUBMISSION TO THE JOINT COMMITTEE ON HUMAN RIGHTS

Introduction

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.  While our interest in the 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 out 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 in 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 Joint Committee on Human Rights during its examination of the Inquiries Bill to take into consideration the situation of families like the Finucanes, or indeed 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 reproduce here our analysis of various clauses of the Bill that was sent to the House Lords, which is already in the possession of the Committee.  Recognising the remit of the Committee to examine the human rights implications of legislation, we instead provide more general comments about aspects of the Bill that we believe raise serious human rights concerns.

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 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, making it less restrictive of basic rights.  

RIGHT TO AN EFFECTIVE INVESTIGATION

In cases where there has been a violation of the right to life, the right to an effective investigation is well recognised.  In several cases the European Court of Human Rights has elaborated on the right to an effective investigation as part of  the procedural aspect of Article 2 of the European Convention on Human Rights, and it has set out various elements that must be present for an investigation to be considered “effective” and in compliance with Article 2.  These elements include a requirement of promptness and reasonable expedition, a requirement of independence on the part of the person carrying out the investigation from those implicated in the events, and “ a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory.”[2]  In practice, in those cases where the police investigation, prosecution, or inquest have not satisfied the requirements, a public inquiry is all that is left for the families of those whose deaths were the responsibility of the state in some shape or form.  It is therefore crucial that such public inquiries are capable of providing an effective investigation, as prescribed by both the European and, increasingly, the domestic, courts.[3]

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 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.”[4]  This argument provides little comfort for those who lost family members during the course of some disaster and who seek, during their 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 set out by the European Court.

ACCESS TO INFORMATION

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 the above-mentioned 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 refer, in this regard, to a joint declaration issued on 15^th December 2004 by the UN Special Rapporteur on freedom of expression, the Representative on Freedom of the Media of the Organisation for Security and Co-operation in Europe, and the Special Rapporteur for freedom of expression of the Organisation of American States, on laws restricting access to information.  In this declaration, which echoes the provisions of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, the three experts emphasised that the right to access to information held by public authorities is a fundamental human right and there should be a presumption that all information is accessible subject only to a narrow system of exceptions.  In particular, they stated that “exceptions should apply only where there is a risk of substantial harm to the protected interest and where that harm is greater than the overall public interest in having access to the information.  The burden should be on the public authority seeking to deny access to show that the information falls within the scope of the system of exceptions.”  They also stated that “secrecy laws should define national security precisely and indicate clearly the criteria which should be used in determining whether or not information can be declared secret, so as to prevent abuse of the label “secret” for purposes of preventing disclosure of information which is in the public interest.”[5]

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. 

INDEPENDENCE AND IMPARTIALITY

The Explanatory Notes to the Inquiries Bill argue that, as an inquiry does not determine civil rights or obligations, or criminal charges, the requirements of a fair and public hearing by an independent and impartial tribunal contained in Article 6 of the European Convention on Human Rights do not apply.  The Bill does recognise, however, that civil or criminal liability may be inferred from facts that an inquiry panel determines or recommendations that it makes [See Clause 2]. 

It would seem that as a general principle the independence and impartiality of an inquiry should be ensured and, indeed, public confidence in an inquiry is unlikely to be strong unless such independence and impartiality is apparent.  Furthermore, in the majority of recent inquiries, which if held in future would have come within the remit of the Inquiries Bill, the inquiry chair has been a member of the judiciary.  According to the UN Basic Principles on the Independence of the Judiciary, “the judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”

Many of the provisions in the Inquiries Bill threaten the independence of the chair and other panel members appointed to an inquiry.  Issues such as the setting and amendment of the terms of reference, the avoidance of “unnecessary” costs, public access to proceedings and to evidence, and the publication of the final inquiry report, are all potentially subject to Ministerial interference and control and the hands of the chair are tied [See Clauses 5, 16(3), 17, 18, 23 and 36].  This is particularly disturbing in cases where an inquiry is examining events involving alleged wrong-doing or negligence on the part of the Minister, his department, or his colleagues. 

As stated by Lord Norton of Louth in the House of Lords on 9^th December, when commenting that the basic requirement of independence is not met in the Bill, “given the powers vested in a Minister, one has to wonder who would accept appointment to serve on an inquiry if independence were not guaranteed.”

CONCLUSION

Respect for human rights and the rule of law are central elements of our democracy, both of which must be protected by a rigorous system of checks and balances.  Accountability through established mechanisms of public scrutiny is also required 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 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.  Thus, at a very general level, the human rights of everyone are jeopardised.  More specifically, the Bill challenges the independence of judges and others appointed to serve on inquiries, and could render the state in violation of its obligation to provide an effective investigation in cases involving the right to life.  It also has serious ramifications for the right of access to information.

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.

DECEMBER 2004

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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.

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