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
117
Jordan v UK, (2003) 37 EHRR 2 paras. 105-109 Back
118
[2003] UKHL 51 Back
119
Gulec v Turkey (1999) 28 EHRR 121; Ogur v Turkey
(2001) 31 EHRR 40 Back
120
Ergi v Turkey (2001) 32 EHRR 18 Back
121
EN para. 22 Back
122
There is also a similar power under clause 17 for the Chairman
of the inquiry to issue a "restriction order" at any
time during the inquiry. Back
123
EN para. 87 Back
124
Jordan v UK, op cit., paras. 107-109 Back
125
ibid., para. 109 Back
126
ibid., para. 121 Back
127
Appendix 2b Back
128
Ogur v Turkey (2001) 31 EHRR 40 Back
129
Jordan v UK, op cit., paras. 133-134 Back
130
See Joint Committee on Human Rights, Third Report of Session 2003-04,
Deaths in Custody, HL Paper 15-I, HC 137-I, para. 304.
Delay in the inquest proceedings was one of the breaches of Article
2 found by the ECtHR in Jordan v UK. Back
131
Assenov v Bulgaria, 90/1997/874/1086 Back
132
Ilhan v Turkey, App. No. 22277/93 Back
133
Aksoy v Turkey (1997) 23 EHRR 553 Back
134
EN para. 117 Back
135
(1998) 29 EHRR 109 Back
136
See also De Geouffre de la Pradelle v France (1992) Series
A No 253; Stubbings v UK (1996) 23 EHRR 213 Back