Joint Committee On Human Rights

Joint Committee On Human Rights Fourth Report

2 Inquiries Bill

Date introduced to the House of Lords

Date introduced to the House of Commons

Current Bill Number

Previous Reports

25 November 2004

House of Lords 7

None

Introduction

2.1 The Inquiries Bill was introduced in the House of Lords on 25 November 2004. A statement under section 19(1)(a) of the Human Rights Act, to the effect that the Bill is compatible with the rights contained in the Human Rights Act 1998, has been made by the Lord Chancellor. The Bill is accompanied by Explanatory Notes,[105] which deal with the Bill's compatibility with the European Convention on Human Rights at paragraphs 111-120.

2.2 This report represents our initial consideration of the human rights implications of the Inquiries Bill, and notes a number of points on which our Chairman has written to the Lord Chancellor to request further information or clarification on the human rights compatibility of the Bill.[106] On receipt of the Lord Chancellor's response we will consider and report on the Bill again.

The Purpose of the Bill

2.3 The Bill establishes a new single statutory framework for inquiries, replacing disparate provision for inquiries spread over a number of Acts.[107] It confers a power on Ministers to establish an inquiry, in response to public concern.[108] It is of particular significance that the Bill removes the power for Parliament to establish an inquiry under the Tribunals of Inquiry (Evidence) Act 1921. Under clause 2 of the Bill, an inquiry has no power to determine civil or criminal liability. It may, however, determine issues of fact from which liability may be inferred by others.

2.4 The Bill sets out a framework for the appointment of inquiry chairmen and members, the setting of terms of reference, and the conduct of inquiry proceedings. It confers powers on the Minister in relation to the conclusion or suspension of an inquiry, and allows for restrictions on public access to inquiry proceedings, and on disclosure of evidence to the inquiry. It makes provision for the publication, and restrictions on the publication, of reports of inquiries. Particular provision is also made for inquiries within the responsibilities of the devolved administrations.

The Human Rights Implications of the Bill

2.5 Inquiries do not in general attract the protection of the right to a fair hearing under Article 6 ECHR since they do not determine civil rights and obligations,[109] and do not determine any criminal charge.[110] In Fayed v UK, the European Court of Human Rights (ECtHR) made clear that proceedings that were essentially investigative, and which did not in themselves determine any dispute, did not fall within the civil law protection of Article 6. Mere tenuous connections or remote consequences were insufficient to bring Article 6 into play.[111] The right to a fair and public hearing by an independent tribunal under Article 14 of the ICCPR is similarly confined to criminal trials and to the determination of rights and obligations in a suit at law, and is therefore unlikely to be engaged by inquiries under the Bill.

2.6 The most significant human rights issues raised by the Bill relate to the use of the new statutory framework to inquire into matters which engage the right to life, protected by Article 2 ECHR. Where an inquiry under the Bill is the main forum in which a death in state custody or at the hands of agents of the state is investigated, it must comply with criteria of independence, transparency and effectiveness, in order to satisfy Article 2. Issues of compliance with Article 3 ECHR may also arise where the subject matter of the inquiry relates to torture or inhuman or degrading treatment or punishment. Powers of an inquiry to compel the production of evidence and the attendance of witnesses may engage rights under Article 8 ECHR.

ARTICLE 2 ECHR

2.7 The right to life under Article 2 ECHR imposes on the state, both negative obligations not to take life intentionally, and positive obligations to protect life. The positive duty to protect life implies a duty to investigate unnatural deaths, including but not confined to deaths in which state agents may be implicated.[112] The duty to institute an effective, independent investigation into a death which engages Article 2 may be discharged through a number of forms of inquiry. In the UK, it may be discharged through the inquest, through investigations by bodies such as the Independent Police Complaints Commission (IPCC), as well as through prosecutions which may follow from such inquiries. In may also be discharged by ad hoc inquiries, such as could be established under this Bill. We have previously considered the compatibility with Article 2 of current systems of investigation, in relation to deaths in custody.[113]

2.8 It appears from a recent Government statement that it is the intention that the Inquiries Bill should provide the framework for at least one inquiry intended to satisfy the Article 2 duty. The death of Patrick Finucane, a Northern Irish solicitor murdered in circumstances involving allegations of collusion by members of the security forces, resulted in a judgment of the European Court of Human Rights that there had not, so far, been a sufficiently effective and independent investigation into the circumstances of the death to satisfy Article 2.[114] In response to the judgement, the Northern Ireland Office indicated that a new inquiry would be established, following the enactment of the Inquiries Bill.[115] We therefore address the provisions of this Bill on the basis that they are likely to form the basis for inquiries into this and other deaths which engage Article 2. In announcing the inquiry into the death of Patrick Finucane the Northern Ireland Office stated—

In order that the inquiry can take place speedily and effectively and in a way that takes account of the public interest, including the requirements of national security, it will be necessary to hold the inquiry on the basis of new legislation that will be introduced shortly.

2.9 The Explanatory Notes to the Bill confirm that the Bill may be used as a basis for inquiries intended to discharge the Article 2 investigative duty.[116]

2.10 The criteria for an Article 2-compliant inquiry are clearly set out by the European Court of Human Rights in Jordan v UK.[117] They require that—

— The inquiry must be on the initiative of the state;

— It must be independent;

— It must be capable of leading to a determination of whether any force used was justified, and to the identification and punishment of those responsible for the death;

— It must be prompt and proceed with reasonable expedition;

— It must be open to public scrutiny to a degree sufficient to ensure accountability;

— The next-of-kin of the deceased must be involved in the inquiry to the extent necessary to safeguard their legitimate interests.

2.11 These criteria have been adopted and applied by the House of Lords in the case of ex parte Amin.[118] In that case the House of Lords made clear that these criteria must be applied in all cases where the right to life was engaged, including cases where a death was alleged to have resulted from negligence on the part of agents of the state, as well as cases where a death had resulted from the use of force. Wherever either individual or systemic failings of public bodies may have resulted in loss of life, therefore, the Article 2 duty to investigate the death, in accordance with the criteria set out in Jordan, will apply.

INDEPENDENCE

2.12 Article 2 requires an investigation that is independent from those implicated in the events under scrutiny.[119] The investigation must be independent both institutionally and in practice.[120] Therefore, the institutional connections of an inquiry panel established under the Bill with the appointing Minister must be assessed against this standard. The degree to which the Bill may allow for inquiries which lack independence in practice must also be considered.

2.13 Ministerial influence on an inquiry is manifested in a number of aspects of the Bill. Both the chairman and the members of an inquiry panel are appointed by a Minister (clause 4), and the appointing Minister sets the terms of reference of the inquiry (clause 5(1)(b)(i)). The Minister may dismiss inquiry panel members on specified grounds including ill-health, breach of duty, bias or misconduct (clause 11 (3)). Furthermore, the Minister may suspend an inquiry (clause 12(1)) pending other investigations or legal proceedings.

2.14 A number of aspects of the Bill appear to us, on an initial assessment, to risk compromising the independence of an inquiry, potentially breaching Article 2 ECHR where the subject-matter of the inquiry concerns the right to life.

2.15 The first concern relates to the power of the responsible Minister, under clause 13(1)(b), to bring an inquiry to a conclusion before the publication of the report. Clause 13(1) provides that an inquiry terminates either on the delivery of the report of the inquiry, or on "any earlier date specified in a notice given to the chairman by the Minister." There is therefore a very wide discretionary power to terminate an inquiry at any stage, with no provision made on the face of the Bill as to the circumstances in which this power may be exercised, or any need for reasons to be given for the decision to terminate the inquiry. The Explanatory Notes state that: "there might be situations before the submission of the report in which it is no longer necessary or possible for the inquiry to continue. New evidence may emerge that obviates the need to hold an inquiry or demonstrates that the inquiry has the wrong focus, for example, if it emerged during an inquiry that the event being investigated was an act of sabotage rather than failings of a particular system".[121] However, the power on the face of the Bill may be exercised in a much wider range of circumstances than those mentioned in the Explanatory Notes. We are concerned that both the exercise of this power of suspension, and the effect which its potential use may have, could compromise the independence of an inquiry from ministerial control. We have written to the Lord Chancellor expressing this concern, and asking whether consideration has been given to specifying on the face of the Bill the circumstances in which this power may be used, and how these provisions are considered to be compatible with the Article 2 requirement of independence.

2.16 Issues as to independence are also raised by the ministerial power to issue a "restriction notice" (clause 17(2)) at any time during the course of the inquiry.[122] Restriction notices may limit attendance at the inquiry or the disclosure of publication of evidence or documents provided to the inquiry (clause 17(1)). They may be made only where they are either required by any legislation or rule of law (clause 17(3)(a)) or are "conducive to the inquiry fulfilling its terms of reference" or are "necessary in the public interest" (clause 17(3)(b)). In assessing the public interest, a Minister must have regard to a number of criteria including—

— the extent to which making a restriction order could "inhibit the allaying of public concern" (clause 17(4)(a));

— the extent to which making the restriction order could avoid "any risk of harm or damage" (clause 17(4)(b));

— confidentiality of the information or documents concerned (clause 17(4)(c));

— the extent to which not making a restriction order could cause delay, impair efficiency or effectiveness, or result in additional cost (clause 17(4)(d)).

2.17 "Harm or damage" includes death or injury, damage to national security or international relations, or to the economic interests of the UK or any part of it, and damage caused by disclosure of commercially sensitive information (clause 17(5)). These criteria are not defined on the face of the Bill.

2.18 Under clause 18 (5) of the Bill, there is a presumption that restriction notices on disclosure or publication of evidence or documents continue in force indefinitely, unless the restriction notice specifies that they expire at a particular time, or the notice is varied or revoked. Restrictions in relation to inquiry records apply for a maximum of 30 years. (clause 18(6))

2.19 We are concerned that a wide-ranging power to issue restriction notices, remaining with the Minister once the inquiry is in being, may compromise the independence of the inquiry, contrary to Article 2 ECHR. We have written to the Lord Chancellor to seek clarification as to why it is necessary for the Minister, as well as the Chairman, to retain such powers, and how they can be justified in light of the need for independence in inquiries which engage Article 2 ECHR.

2.20 Under clause 23 of the Bill, it is the default position that the Minister is responsible for the publication of the inquiry's report. The Chairman may become responsible for publication by arrangement with the Minister either before or during the inquiry (clause 23(2)). Under clause 23(4) the Minister, if he or she retains the duty of publication, may withhold material from publication, where this is required by law, or where it is considered to be necessary in the public interest. In determining the public interest, regard is to be had to the extent to which non-publication would inhibit the allaying of public concern; confidentiality; and any risk of harm or damage that could be avoided or reduced by withholding publication. "Harm or damage" is again widely drawn, and includes death or injury, damage to national security or international relations, damage to the economic interests of the UK or to any part of it, and damage caused by disclosure of commercially sensitive information. We are concerned that this degree of ministerial discretion as to publication of the conclusions of an inquiry puts at risk both the independence and the appearance of independence of the inquiry, and may fall short of compliance with Article 2 rights in inquiries where those rights are engaged. We have written to the Lord Chancellor asking why this degree of discretion is considered to be compatible with Article 2 ECHR. We have sought reassurances from the Lord Chancellor that the responsibility for publication would be allocated to the Chairman at the outset of any inquiry which engaged Article 2, and that consideration will be given to making provision to this effect on the face of the Bill.

2.21 Under clause 36, the Minister may withdraw funding from an inquiry where he or she believes that the inquiry is operating outside its terms of reference, or is likely to do so. The Minister must provide a notice to the Chairman of the inquiry, specifying this belief and the reasons for it. The Explanatory Notes observe that: "the withdrawal of funding may be temporary and the Minister will resume funding if he is satisfied the inquiry is working back within the terms of reference".[123] Whilst the terms of reference of an independent inquiry may be open to differing interpretations, their interpretation and application should be a matter for the Chairman of the inquiry, if independence is to be maintained. We are concerned that this provision undermines the role of the Chairman of an inquiry in interpreting and applying his or her terms of reference, and leaves open the possibility of undue ministerial influence on an inquiry. We have written to the Lord Chancellor expressing this concern, and asking why clause 36 is considered to be compatible with Article 2 ECHR.

2.22 We welcome the fact that the Bill, in clause 8(1), makes impartiality a requirement of appointment to an inquiry panel. Appointees to the panel must not have a direct interest in the matters under consideration, or a close association with any interested party (clause 8(1)). However, these requirements are subject to an exception where "in the Ministers' opinion the person's interest or association would be unlikely to influence his decisions as a member of the panel." We are concerned that this provision may fail to ensure the practical impartiality required of Article 2 investigations. We have drawn this concern to the attention of the Lord Chancellor.

AN EFFECTIVE INQUIRY

2.23 Article 2 requires that, where the right to life is engaged, an inquiry must not only be independent, but also effective, in providing a sufficient explanation for the circumstances of the death, which is subject to sufficient public scrutiny to secure accountability, and provides the basis for the attribution of responsibility and the initiation of criminal proceedings where this is appropriate.[124]

2.24 Provision for Ministerial control, through the issue of restriction notices and the conclusion of an inquiry before the issue of a report, may raise issues of the inquiry's effectiveness in accordance with Article 2. In particular, powers to issue restriction notices which limit attendance of the inquiry, or the disclosure of evidence or documents, in order to protect widely drawn categories of general interests such as economic welfare, national security or international relations, may impair the effectiveness of an inquiry. The European Court of Human Rights has found that a sufficient element of public scrutiny is an essential element of an effective inquiry capable of securing accountability in practice as well as in theory, although it accepts that the degree of public scrutiny necessary may vary with the circumstances.[125] We also note that the ECtHR has found that documents such as police reports containing sensitive material which may prejudice private individuals or other investigations are not automatically required to be disclosed under Article 2.[126]

2.25 British Irish Rights Watch, in their submission to us, raised concerns about the impact of ministerial controls on the effectiveness of inquiries and considered that "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".[127]

2.26 The European Court of Human Rights, in its application of Article 2, has emphasised the importance of the next-of-kin of the deceased being provided with information and involved in the investigation procedure.[128] The Court has found it to be a requirement of an effective investigation that the next-of-kin have access to relevant documents and witness statements.[129] There is nothing in the Bill to prevent the issue of restriction notices which limit access by the families of the deceased to the inquiry, or to essential documents in the inquiry. We are concerned that, without further safeguards on the face of the Bill, the power to issue restriction notices may impair an inquiry's effectiveness, potentially to an extent which would be in breach of Article 2 ECHR, by limiting public accountability and restricting the access of next-of-kin to the inquiry proceedings. We have written to the Lord Chancellor raising this concern, and asking whether further safeguards will be introduced on the face of the Bill, or in guidelines, to address this.

2.27 Under clause 23, as we have noted above, the Minister is responsible for the publication of an inquiry's report, in the absence of a specific allocation of such responsibility to the Chairman of the inquiry. If the Minister retains control of publication, he or she may withhold material from publication where this is required by law or is considered to be necessary in the public interest. The extent of ministerial control over whether the conclusions of an inquiry, or the evidence which led to those conclusions, will be made public has the potential to frustrate compliance with the Article 2 requirements that the inquiry be open to a sufficient degree of public scrutiny to ensure accountability, and that it provide the next-of-kin of the deceased with an explanation of the circumstances of the death. We have already raised concerns and referred to our questions to the Lord Chancellor regarding this aspect of the Bill above at paragraph 2.20.

2.28 Under clause 37 of the Bill, there is provision for the Chairman to make an award of expenses, including the costs of legal representation, to any witness to the inquiry or to any person whom the chairman considers to have a particular interest in the proceedings or in the outcome of the inquiry such as to justify payment. Such awards are made at the discretion of the Chairman. Furthermore, clause 37(4) provides that the Chairman enjoys the discretionary power to make awards only where such a power is authorised by the Minister, and that the power may be subject to conditions or qualifications imposed by the Minister. Article 2 requires that an inquiry should facilitate the full participation of family members. For this right to be effective, funding for legal representation will be required for family members of the deceased in cases where Article 2 is engaged. We have therefore written to the Lord Chancellor asking for a reassurance that legal aid would be provided to family members in all such cases.

PROMPTNESS AND REASONABLE EXPEDITION

2.29 The power of the Minister, under clause 12(1), to suspend an inquiry, may be problematic in regard to the right to a prompt investigation under Article 2, where an inquiry under the Bill is the main forum in which the Article 2 investigative duty is fulfilled. Similar difficulties have arisen in the Northern Ireland inquest system, where a duty on coroners to suspend an inquest pending the outcome of all other investigations has led to long delays and concerns in relation to Article 2 compliance.[130] This power would therefore need to be sparingly exercised in order to ensure compliance with the Article 2 positive duty, and any suspension of an inquiry should be kept under regular review. We draw this matter to the attention of both Houses.

Other human rights issues

INQUIRIES INVOLVING FREEDOM FROM INHUMAN AND DEGRADING TREATMENT: ARTICLE 3 ECHR

2.30 Like Article 2, Article 3 ECHR may impose positive obligations to institute an effective investigation into allegations of torture or inhuman or degrading treatment that may amount to a breach of Article 3.[131] However, whether a procedural duty under Article 3 will apply will depend on the facts of the case: the ECtHR has found that the Article 3 investigatory obligation may in many cases be satisfied by the right to an effective remedy under Article 13 ECHR,[132] which in such cases requires a thorough and effective investigation capable of leading to the identification and punishment of those responsible for any ill-treatment.[133] The concerns raised in relation to the effectiveness of investigations under Article 2 may therefore also arise where Article 3 is engaged.

POWERS OF THE INQUIRY: ARTICLE 8

2.31 Under Clause 19 of the Bill, the Chairman of an inquiry may issue a notice requiring the production of documents or evidence, or the attendance of witnesses. A notice to produce evidence or attend as a witness may be revoked by the Chairman on the application of the person concerned, where that person is unable to comply, or cannot reasonably be expected to comply, with the notice (clause 19(4)). In deciding whether to revoke a notice on these grounds, the Chairman must consider the public interest in the information in question being obtained by the inquiry (clause 19(5)). Under clause 20 of the Bill, there is an exception from these powers in relation to privileged information.

2.32 Clause 32(1) creates an offence of failure to comply with an order under clause 19 without reasonable excuse; of distorting or withholding evidence; and of concealing, altering or destroying a relevant document. Clause 33 provides for enforcement in the courts where there is a failure to comply with a notice under section 19.

2.33 Powers under clause 19 to require the production of evidence or documents or the attendance of witnesses may engage the right to respect for private life under Article 8 ECHR. Interference with Article 8 rights through the use of such powers may be justified under Article 8.2 where the interference pursues a legitimate aim and is justifiable as necessary and proportionate to this aim. The Explanatory Notes to the Bill point out that clause 19 powers assist in securing an effective inquiry, which may be required to protect rights under Article 2 ECHR where these are engaged.[134]

2.34 In order for the use of clause 19 powers to comply with Article 8, the inquiry concerned would need to serve one of the legitimate aims specified in Article 8.2, including for example, public safety, the prevention of disorder or crime, or the protection of the rights and freedoms of others Furthermore, clause 19 powers would need to be exercised in a manner proportionate to that aim. Under section 6 of the Human Rights Act 1998, the Chairman of an inquiry, as a public authority under the Act, would be required to exercise these powers in accordance with Convention rights. In our view the powers under clause 19 are capable of being exercised in accordance with rights under Article 8 ECHR.

LIMITATION PERIOD FOR JUDICIAL REVIEW

2.35 Under clause 35 of the Bill, there is a 14 day time limit for application for judicial review of any decision made by either the Minister or by the inquiry panel in the course of an inquiry. The 14 day time limit runs from the date on which the applicant became aware of the decision, rather than the date on which the decision was taken. Under clause 35(3), the 14 day time limit does not apply to a decision as to the contents of the report of the inquiry, or to a decision of which the applicant could not have become aware until the publication of the report. The court retains a discretion to extend the 14 day time limit in all cases where it applies.

2.36 Short limitation periods may violate the right of access to court under Article 6 ECHR. In Perez de Rada Cavanilles v Spain[135], the ECtHR found that the strict application of a three day limitation period breached Article 6.[136] However, the ECtHR recognises the necessity of limitation periods to the functioning of the courts, and short limitation periods can be justified where they serve a legitimate aim and are proportionate to it. Having regard to the judicial discretion to extend the time limit, we do not consider that clause 35 is likely to impede access to court in breach of Article 6.

105 House of Lords Bill 7-EN (Hereafter 'EN') Back

106 Appendix 2a Back

107 Including inquiries under the Tribunals of Inquiry (Evidence) Act 1921; the Police Act 1996; the National Health Service Act 1977; the Children Act 1989. Back

108 Clause 1 Back

109 Fayed v UK (1994) 18 EHRR 393 Back

110 This is expressly stated in clause 2 of the Bill. On whether inquiries determine a criminal charge see Goodman v Ireland (1993) 16 EHRR CD 26, where it was held that a tribunal of inquiry into illegal practices in the beef industry did not amount to criminal proceedings, since although it closely involved the applicants' activities and allegations of criminal conduct on their part, it was established to inquire into matters of general public concern and to make recommendations to government. Back

111 Fayed v UK, op cit, para. 58 Back

112 McCann v UK (1996) 21 EHRR 97; Ergi v Turkey (2001) 32 EHRR 18; Yasa v Turkey (1999) 28 EHRR 408 Back

113 Third Report of Session 2004-05, Deaths in Custody, HL Paper 15-1, HC 137-1, Chapter 10 Back

114 Finucane v UK App. No. 29178/95 Back

115 Northern Ireland Office Press notice, 23 September 2004, Statement by the Secretary of State, Paul Murphy MP, on Finucane Inquiry Back

116 EN para.117 Back