House of Lords - The Inquiries Act 2005: post-legislative scrutiny - Select Committee on the Inquiries Act 2005

The Inquiries Act 2005: post-legislative scrutiny - Select Committee on the Inquiries Act 2005 Contents

CHAPTER 6: independence of inquiries

194. Any inquiry, whether or not set up under the Act, needs to be, and to be seen to be, independent of the executive. This is all the more important in the case of inquiries which scrutinise and may criticise the conduct of ministers personally, of the executive generally, or of executive agencies. Inquiries into deaths involving the army or the police, or where there are allegations of collusion by special forces, are particularly sensitive.

THE JOINT COMMITTEE ON HUMAN RIGHTS

195. It is therefore hardly surprising that when the Inquiries Bill was introduced in November 2004 the chief criticism was of the powers which ministers were granted. In addition to their power to set up inquiries (which of course includes the power not to set up an inquiry), to appoint the chairman, panel members and assessors, and to decide the terms of reference, ministers were given the following powers:

· The power of the responsible Minister to bring an inquiry to a conclusion at any stage before the publication of the report (clause 14(1)(b));

· The power of the responsible Minister to issue a restriction notice at any time during the course of the inquiry, limiting attendance at the inquiry or the disclosure or publication of evidence or documents provided to the inquiry (clause 19(2));

· The power of the responsible Minister to withhold material from publication in the report of the inquiry, where this is required by law, or where it is considered to be necessary in the public interest (clause 25(4));

· The power of the responsible Minister to 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 (clause 39(4));

· The permissibility in exceptional circumstances of appointments to an inquiry panel of a person having a direct interest in the matters under consideration, or an association with an interested party (clause 9(1)).

196. All of these powers were questioned by the Joint Committee on Human Rights in its scrutiny of the Bill, on the grounds of possible non-compliance with Articles 2, 3 and 8 ECHR. The Joint Committee first raised these concerns in January 2005,[298] and the chairman wrote to the Lord Chancellor, Lord Falconer of Thoroton, seeking his views. In his reply of 6 February 2005 the Lord Chancellor defended all these powers, explaining the very limited circumstances in which they—might be used. The Government did however table amendments which required the minister to consult the chairman before issuing a notice to end the inquiry, and for the notice to set out the reasons for exercising the power;[299] and a further amendment prohibiting a minister from withholding material from publication in the report if a person would have access to it under the Freedom of Information Act 2000.[300] Despite this, in their final report the Joint Committee continued to express concern over the compatibility with the Convention of the power of ministers to issue restriction notices, to withhold material from publication and to withdraw funding from the inquiry.[301]

VIEWS OF JUDGES

197. The Joint Committee's concerns were shared by senior members of the judiciary. Lord Saville of Newdigate, then chairing the Bloody Sunday Inquiry, was consulted by the Department of Constitutional Affairs about the Bill. In a letter of 26 January 2005 to Baroness Ashton of Upholland, the minister piloting the Bill through this House, he expressed the view that the power of a minister to impose restrictions on attendance at the inquiry, or on the disclosure or publication of evidence or documents, made "a very serious inroad into the independence of any inquiry and [was] likely to damage or destroy public confidence in the inquiry and its findings". He went so far as to say that he would not be prepared to be appointed as a member of an inquiry subject to a prohibition of that kind.[302]

198. Similar concerns were expressed by Judge Peter Cory, a retired judge of the Canadian Supreme Court who had been appointed by the British and Irish Governments in 2002 to investigate allegations of collusion in six controversial murder cases. In evidence to a Committee of the United States Congress he wrote that he "[could] not contemplate any self-respecting Canadian judge accepting an appointment to any inquiry constituted under the proposed new Act."[303] We are not however aware of any instances of ministers having abused these powers, and it is of course the case that a number of highly respected judges and former judges have accepted appointment as chairmen of inquiries constituted under the Act.

VIEWS OF INTEREST GROUPS

199. In our call for evidence we specifically sought views on the extent of these ministerial powers, and it is clear that a number of bodies have not changed their views. In written evidence Liberty said: "the strength of the powers granted under the 2005 Act are badly undermined by numerous provisions of the Act which restrict public access to the inquiry and reduce its transparency, and which allow Ministers to suspend and even terminate an inquiry at will. These provisions are not conducive to the inherent function of a public inquiry; that it inspires confidence on the part of the public and the individuals involved." The CAJ stated: "CAJ concerns in relation to the Inquiries Act 2005 centre on the manner in which the Act provides for unprecedented interference at practically every stage of the inquiry by a government Minister despite the very actions of the Executive tending to be the focus of the inquiries".[304] The Committee referred in particular to the Secretary of State declining to extend the terms of reference of the Hamill Inquiry to include an analysis of the role of the DPP.

200. In oral evidence similar views were expressed. Rachel Robinson said that Liberty's particular concerns were about ministerial powers to suspend or terminate an inquiry, which in her view "cast a shadow over inquiries and over the work of the chairman of an inquiry. The situation is similar with provisions around redactions of evidence, non-disclosure and excluding access to the inquiry."[305]

THE GOVERNMENT'S VIEWS

201. The Government, in their response to the call for evidence, stated: "HMG believes that the responsibilities set out for Ministers in the 2005 Act are still appropriate as is the balance of power with the chairman and inquiry panel … HMG believes the power in section 14 is sufficient to bring an inquiry to an earlier end where necessary and that the Act contains appropriate safeguards against the inappropriate use of such a notice."[306] In oral evidence the minister said that he was satisfied with the ministerial powers as set out in the Act.[307] In relation to the power to terminate an inquiry he added: "I suspect that there would need to be very formidable reasons to [exercise the power]. As I say, that power has not been exercised and it is not one that would be exercised lightly."[308]

The Committee's view

202. Even though they have not been used, the existence of these powers causes us concern, simply because the potential for abuse may lessen public confidence in the inquiry process. But the view of Collins, Kemish and Underwood also has force: "The degree to which an inquiry secures the confidence of those interested in it has nothing to do with the provisions of the Act and everything to do with whether the panel and the inquiry team are seen to be acting fairly and thoroughly."[309] This view was shared by Herbert Smith Freehills: "In our view, confidence stems predominantly from the way in which an inquiry is conducted rather than the existence of the Act."[310]

203. It is the minister's powers under sections 13 and 14 to suspend or to terminate inquiries that have caused the most concern. We believe nevertheless that these are powers of last resort which must remain. We are satisfied that they would indeed "not be exercised lightly"; the requirement that a notice of the reasons should be laid before Parliament, added during the passage of the Bill,[311] should be sufficient to ensure this.

204. There are however three other ministerial powers which in our view should be circumscribed.

RESTRICTIONS ON PUBLIC ACCESS

205. Under section 19, restrictions on public access to an inquiry can be imposed either by the minister in a "restriction notice" given to the chairman, or by a "restriction order" made by the chairman. We have already referred[312] to the ruling of the European Court of Human Rights in Edwards v United Kingdom[313] to the effect that the inability of an inquiry to compel the attendance of witnesses may render that inquiry non-compliant with ECHR Article 2. That case involved an inquiry which had been held in private and where the parents of the deceased young man had been allowed to attend only when they themselves were giving evidence. The Court held that the parents "cannot be regarded as having been involved in the procedure to the extent necessary to safeguard their interests", and that this was a further reason why the investigation did not comply with Article 2.[314]

206. We believe that only the chairman should be allowed to restrict access to the inquiry by issuing a restriction order, for the limited reasons set out in section 19(3)-(5). We recommend that the power of the minister to issue a restriction notice under section 19, restricting public access to an inquiry, should be abrogated. The chairman's power to issue a restriction order is sufficient.

WITHHOLDING MATERIAL FROM PUBLICATION

207. Under section 25 the minister can at any time invite the chairman to accept responsibility for publication of the report of the inquiry. In this case, only the chairman has the power to withhold material from publication where this is required by law, or it is in the public interest to do so. But the default position is that the responsibility for publication is the minister's; in that case the power to withhold material from publication is also the minister's. We recommend that, whoever is responsible for publication of the inquiry report, section 25(4) should be amended so that, save in matters of national security, only the chairman has the power to withhold material from publication.

TERMINATION OF APPOINTMENT OF A MEMBER OF THE PANEL

208. There is a further ministerial power which does not seem to have attracted significant criticism either during the passage of the Bill or subsequently, but which has troubled us: the power to terminate the appointment of a member of the panel. Section 12(3) allows the minister to terminate the appointment of a panel member on health grounds, for failure to comply with a duty under the Act, because a conflict of interest has arisen, or because he has been guilty of misconduct which makes him unsuited to continue as a member. This is a necessary power of last resort, but we believe it should be subject to strict conditions. At present the only condition is that, in the case of panel members other than the chairman, the chairman must be consulted. His consent is not however required.

209. We believe that a power as radical as this should not be exercisable without further conditions. We recommend that where the minister wishes to terminate the appointment of a panel member other than the chairman, section 12(6) should be amended to require the chairman's consent.

In the case of the chairman himself, the only condition for termination of his appointment is that the other panel members, if there are any, can be consulted. Again consent is not required. Where, as will usually be the case, the chairman is the sole panel member, the power to terminate the appointment is subject to no conditions at all. We recommend that section 12 should be amended to provide that where the minister wishes to terminate the appointment of the chairman of an inquiry, he should be required to lay before Parliament a notice of his intention, with the reasons.

298 Joint Committee on Human Rights, (4th Report, Session 2004-05, HL Paper 26, HC 224). Back

299 Now section 14(3) and (4). Back

300 Now section 25(7). Back

301 Joint Committee on Human Rights, (8th Report, Session 2004-05, HL Paper 60, HC 388). Back

302 Lord Saville's letter is quoted in Beer, Public Inquiries, paragraphs 1.67-1.68, and also in a Joint Statement issued on 22 March 2005 by Amnesty International, British Irish Rights Watch (now Rights Watch UK), the Committee on the Administration of Justice, Human Rights First, the Human Rights Institute of the International Bar Association, INQUEST, JUSTICE, Lawyers' Rights Watch Canada, the Law Society of England and Wales, the Pat Finucane Centre and the Scottish Human Rights Centre. Back

303 Letter to the Chairman of the Committee of Congress, 15 March 2005. Judge Cory gave oral evidence to that Committee on 16 March 2005. His views were also quoted in written evidence to us from the Northern Ireland Committee on the Administration of Justice. Back

304 Written evidence, paragraph 3. Back

305 Q 230. Back

306 Government written response, Part 2, paragraphs 15 and 17. Back

307 Q 331. Back

308 Q 332. Back

309 Written evidence, paragraph 28. Back