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THE INQUIRIES BILL: A LAST CHANCE TO SAVE THE DAY FOR PUBLIC INQUIRIES?
As the Inquiries Bill reaches its Third Reading in the House of Lords, the debate has been enhanced by the publication of two reports: the fourth report of the Joint Committee on Human Rights and the House of Commons’ Public Affairs Select Committee (PASC) report on “Government by Inquiry”.
British Irish rights watch continues to be concerned that the Inquiries Bill, which was only very slightly amended by the government at the Report stage, places too much control into the hands of government ministers and cuts out any meaningful role for Parliament. In our view, abolishing the role of public inquiries as they exist today will harm public confidence in the ability of society to recognise and remedy problems that give grave cause for concern.
The Joint Committee on Human Rights (JCHR) has expressed a number of concerns about the suitability of the Bill’s provisions when it comes to providing an effective investigation in cases involving the right to life (Article 2 of the European Convention on Human Rights) and the right to freedom from torture or inhuman or degrading treatment or punishment (Article 3). In particular, the Committee has expressed concern about:
· the exercise of the Minister’s power to suspend an inquiry and its potential to compromise the independence of an inquiry (paragraph 2.15 of the report)
· the risk that suspension would negate the requirement for promptness and reasonable expedition (2.29)
· the power to issue restriction notices limiting attendance at inquiries or the disclosure of evidence or documents, which the Committee says could compromise the independence of the inquiry and violate Article 2 of the European Convention (2.19)
· the possibility that restriction notices could impair an inquiry’s effectiveness by limiting public accountability and restricting the access of next-of-kin to the inquiry’s proceedings, in breach of Article 2 (2.26)
· the Minister’s power over the publication of an inquiry’s findings, which could compromise independence and the appearance of independence, and violate Article 2 – the Committee considers the inquiry chair should be responsible for publication of the report (2.20)
· the Minister’s power to withhold funding should the inquiry stray outside its terms of reference, which undermines the role of the chair and creates the potential for undue ministerial influence (2.21)
· the Minster’s discretion to appoint a person to an inquiry despite that person’s interest in or association with the matters under investigation by the inquiry (paragraph 2.22)
· the possibility that family members might not receive legal aid funding for legal representation for inquiries (paragraph 2.28).
The PASC report on “Government by Inquiry” also raises a number of specific concerns about the Inquiries Bill, including that:
· by abolishing the 1921 Act it removes the opportunity for formal parliamentary involvement in inquiries (paragraph 175 (a)).
· it strengthens the executive’s position by enabling ministers not just to decide on the format and membership of an inquiry before it has begun, but also to influence its operation. It calls into question the independence of inquiries and means that ministers rather than chairs are the interpreters of the terms of reference. It thus subverts the safeguards which were introduced when the original 1921 Act was debated (paragraph 175 (b)).
· it does not address the wider questions about the purpose and nature of inquiries (paragraph 175 (c)).
· it does not address the broader, constitutional issues about the circumstances in which a Minister should call an inquiry. There is an assumption that one size fits all despite the acknowledgement of the wide variety of circumstances which apply (paragraph 175 (d)).
We hope that the House of Lords will pay very serious attention to these concerns, and think long and hard before removing altogether the possibility of a fully independent public inquiry.
One way of ensuring that this does not happen is for 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 Bill would need further amendment to ensure that inquiries were usually held in public, that evidence and reports would normally be published in full, and that chairs rather than ministers would control these matters.
If the House of Lords does not act to safeguard the public inquiry, then the prospect looms of ministers being able to manipulate the inquiry process to achieve the results they desire, rather than acting as they should in the public interest. We seriously doubt that the public would have confidence, for example in an inquiry into the contentious deaths of young soldiers at Deepcut Barracks and elsewhere which was conducted by the Secretary of State for Defence, or even by another minister in the same Cabinet. We are certain that a ministerial inquiry into the murder of Belfast lawyer Patrick Finucane will not command any public confidence in Northern Ireland. Indeed, such inquiries are far more likely to undermine the public’s faith in good governance, and to bring the law into disrepute.
We believe that at minimum the Inquiries Bill needs to be amended in the following ways:
· Any MP or Peer should be entitled to put down a resolution before Parliament for the establishment of an inquiry into a matter of great public concern.
· Chairs of inquiries should have the final say over the terms of reference of inquiries and should have the power, in consultation with the minister, to alter the terms of reference if it becomes necessary or appropriate to do so.
· Only chairs of inquiries should make decisions about whether the public can attend a particular hearing, whether evidence should be published, and whether the final report should be redacted. The presumption should be in favour of public hearings and the full publication of evidence and reports.
· In order to avoid the danger of judges being dragged into political controversy, judges who chair inquiries should always be supported by two lay members on the panel, and the advice of the Lord Chief Justice should be sought before a judge is appointed to an inquiry.
The ability to order a fully independent pubic inquiry is an important feature of any developed democracy. It is especially necessary where issues such as the right to life and freedom from torture and ill-treatment are concerned, but there are also other occasions when self-regulation is an insufficient mechanism for commanding or restoring public confidence in the rule of law. Public inquiries may, with the passing of the Inquiries Bill, become the exception rather than the rule, but it would be short-sighted and ill-advised to abandon public inquiries altogether.
February 2005
For Peace Justice & Human Rights
