The Inquiries Bill - the Wrong Answer
22nd March 2005 --
The below-listed organisations jointly express our concern
over some of the provisions of the Inquiries Bill introduced into Parliament on
24th November 2004. The Bill, being discussed this week by a Standing Committee
of the House of Commons, would, if enacted, alter fundamentally the system for
establishing and running inquiries into issues of great public importance in the
UK, including allegations of serious human rights violations. Should it be
passed into law, the effect of the Bill on individuals and cases that merit a
public inquiry would be highly detrimental. In particular, in those cases where
one or more person has died or been killed, the right of their surviving family
members to know the truth about what happened and to an effective investigation
could be violated by the operation of the Bill.
The fundamental problem contained in the Inquiries Bill is
its shift in emphasis towards inquiries established and largely controlled by
government Ministers. This shift is achieved by the repeal of the Tribunals of
Inquiry (Evidence) Act 1921 and the terms of several of the Bill’s clauses.
These clauses grant broad powers to the Minister establishing an inquiry on
issues such as the setting of the terms of reference, restrictions on funding
for an inquiry, suspension or termination of an inquiry, restrictions on public
access to inquiry proceedings and to evidence submitted to an inquiry, and
restrictions on public access to the final report of an inquiry. The Bill does
not grant the independence to inquiry chairs and panels that has made their role
so crucial in examining issues, particularly where public confidence has been
undermined.
Several of us have already laid out our concerns about the
Bill in earlier statements and briefings and we are pleased to note that some
amendments to the Bill have already been adopted in the House of Lords. However,
we continue to have serious concerns about the Bill in its current form and we
urge all members of Parliament to take these concerns into account in their
ongoing consideration of the Bill. We also wish to draw attention to the views
expressed on this matter by the parliamentary Joint Committee on Human Rights,
by the Public Administration Select Committee, and by two notable jurists,
namely Lord Saville of Newdigate and former Canadian Supreme Court justice Judge
Peter Cory.
The Joint Committee on Human Rights has concluded that
several provisions of the Bill may not be compliant with Article 2 of the
European Convention on Human Rights in that they would inhibit an effective
investigation into cases involving deaths. For example, the Committee has
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." The Committee has further
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." 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..." It also was concerned 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."
The Public Administration Select Committee also criticised
many facets of the Inquiries Bill, in its report following its inquiry into
"Government by Inquiry". In particular, the Committee expressed concern about
Ministers conducting inquiries into their own or their department’s actions.
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 the clause granting Ministers the power to issue notices
restricting public access to inquiry proceedings and materials. In a letter of
26th 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. Despite the addition in the House of Lords of a clause setting out a
presumption of public access to inquiry proceedings, restriction notices issued
by Ministers 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."
On 15th March, 2005, Judge Peter Cory, a retired Canadian
Supreme Court justice who was appointed by the British and Irish governments in
2002 to investigate allegations of state collusion in six controversial murder
cases, wrote a letter expressing his own fears about the potential effects of
the Inquiries Bill. He described the Bill as "unfortunate to say the least" and
with specific reference to the case of murdered Belfast solicitor Pat Finucane
stated, "It seems to me that the proposed new Act would make a meaningful
inquiry impossible." Judge Cory noted that "the Minister, the actions of whose
ministry was to be reviewed by the public inquiry would have the authority to
thwart the efforts of the inquiry at every step" and he concluded that he
"cannot contemplate any self respecting Canadian judge accepting an appointment
to an inquiry constituted under the new proposed act".
We agree with all of these views and urge Parliament to take
them very seriously. An inquiry held under the Bill as currently drafted would
not be effective, independent, impartial or thorough, nor would the evidence
presented to it be subject to sufficient public scrutiny. Such an inquiry would
fall far short of the requirement of international human rights law that an
effective remedy be provided to the victims of human rights violations.
Moreover, the passage of the Inquiries Bill in its current form would do great
harm to the tradition of public inquiries in the UK and would undermine the
important principles of accountability and transparency. In order to command
public confidence, it is absolutely necessary that an inquiries system permit
close independent public scrutiny and provide for the active participation of
the relevant victims. The Inquiries Bill does not do this.
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