Inquiries Act 2005 (Select Committee Report)

Baroness O'Loan Excerpts

Thursday 19th March 2015 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I join with other noble and noble and learned Lords in congratulating the noble Viscount, Lord Tenby. When I came into this House five years ago, I, too, benefited very much not only from his gentle courtesy, but from his profound wisdom and I would like to thank him for all that he has done in this House.

I am grateful to the noble Lord, Lord Shutt, and the members of his committee for the excellent report that they produced on the Inquiries Act. This debate affords an important opportunity for the Government to review their position in relation to their response to the report.

I declare an interest. I am chairing the Daniel Morgan independent panel. It is not an inquiry under the Act; it is a Hillsborough-type independent panel, which was set up to examine the murder of Daniel Morgan in London in 1987, allegations of police involvement in his murder and of police and media corruption affecting the investigation. The issues that we have discussed are therefore of significant interest to me.

The genesis of this Act goes back, among other things, to 2003, when the European Court held that there had not been sufficiently effective and independent investigation for the purposes of Article 2 of the European Convention on Human Rights into the circumstances of the death of Belfast solicitor Patrick Finucane. He was murdered, it was subsequently established, as a consequence of,

“a series of positive actions by employees of the State”,

which,

“actively furthered and facilitated his murder and … in the aftermath of the murder”,

we are told,

“there was a relentless attempt to defeat the ends of justice”.

The Select Committee in its report was very clear that the Act does not as a whole require radical surgery, but it sets out clearly the deficiencies in respect of which evidence was received. The recommendations for amendment have already been referred to by a number of noble Lords and are summarised on page 89 of the report. Many of the deficiencies identified by the report go to the independence of the inquiry process. That is vital to public confidence in the Act, in the inquiry process and in governance. In responding, as the noble Baroness, Lady Stern, and others have said, the Government rejected the call to amend the most important of these provisions—the ministerial powers to amend the terms of reference, appoint members and, most particularly, the use of restriction notices.

As the noble Baroness, Lady Stern, said, in paragraphs 69 to 72 of their response, Her Majesty’s Government state that Ministers,

“will understand the nature of national security and other sensitive material”.

I have no doubt that we need to protect our national security. Having been the victim of a bomb explosion and having had other terrorist-related experiences, I am very clear about that. There are many threats to national security, as we know. But there is an imperative to learn from our past, not just on the terrorist front but as we now contemplate even just the number of inquiries currently being established into historic child sexual abuse and its alleged cover-up. Lord Acton, in one of his letters in January 1861, famously wrote:

“Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity”.

There is a temptation in any organisation to cover up its wrongdoing. We have seen it across so many professions and institutions. Governments will not be immune to that temptation and those who have advised them and their successors may seek to cover up past wrongdoing to protect what they perceive to be the stability of the present. But when we build on the shifting sands of noble cause corruption, we do so at our peril. We do not need to think back very far to identify situations in which a dishonest response, and a quick calculated inquiry, such as that which resulted in the Widgery report on Bloody Sunday, resulted in serious damage. They say in Northern Ireland that the Bloody Sunday shootings were one of the best recruiting agents for the IRA. We heard reference to the Saville report and to its cost, but I remind noble Lords and Her Majesty’s Government that a lot of the costs of that inquiry resulted from challenges by the Government and their agents to the inquiry itself. We must remember that.

I do not say this to offend; I say it because there is a duty on those who conduct these inquiries to do so using every tool at their disposal to uncover the truth. The power of the Minister to restrict attendances and block access to and disclosure of documentation, as the noble Lord, Lord Saville, is reported to have said in the report made,

“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”.

That view was also clearly articulated by the Joint Committee on Human Rights and the House of Lords Select Committee, stating that the power to make such notice compromises the Article 2 compliance of an inquiry by curtailing its independence and restricting the ability of the next of kin effectively to engage with an inquiry so as to enable it to lead to an accurate determination of responsibility.

A way forward in this dilemma was identified in the Baha Mousa inquiry, the chair of which was able to maintain his independence by insisting on a protocol that allowed him to maintain control over disclosure. However, placing the burden to stand up for independence on the chair is not right and does not ensure that, in the future, every inquiry will be independent and effective. The reality is that an inquiry that is deeply immersed in what might be millions of pages of documents is much better placed to assess the relevance of documentation and capable of protecting that which requires to be kept secret than the Government and their advisers.

The Finucane family, whose tragic loss has been the subject of so many limited inquiries, firmly believe that the whole truth about what was happening in Northern Ireland at the time, which led not just to the death of Patrick Finucane but to that of Adam Lambert, has not been told. It is now common knowledge that many other people died at the hands of terrorists because of the involvement of state agents in one way or another in these murders and the protection of those who committed them. I have seen the pattern of activity involving the state and paramilitary organisations, republican and loyalist. That is why they continue to call for a public inquiry, as, indeed, do other victims of atrocities.

Such inquiries must have proper independence. It is 27 years since Patrick Finucane was murdered and 13 years since the then Secretary of State declared that there would have to be an inquiry, but the terms of the Inquiries Act are such that the family cannot be sure of the initial and ongoing independence of any inquiry. The arguments not to have inquiries into atrocities such as the deaths of Mr Finucane and the Ballymurphy and Omagh victims are not even persuasive, let alone convincing, as we look at inquiries which have been established under the Inquiries Act.

It is not in the interests of national security that we protect those who did wrong, yet this Act, as currently framed, makes it much more possible for this to happen. I know that those seeking to protect vital national interests have, on occasion, been badly advised, but we all know that not every document marked “Secret” merits that mark and not every confidential document is in any way confidential. Each document should be capable of being examined on its merits by an independent inquiry. Chairmen and inquiry members should be cleared to the necessary level and can be briefed by the same people as Ministers. They surely have as much intellectual capacity as Ministers and hence will be competent to understand the nature of any briefing or explanations. Judges and others routinely work in areas of national security. They do not come new to it when they assume the role of chair of an inquiry.

As several noble Lords have said, Her Majesty’s Government’s arguments and their response to the Select Committee report are not convincing. There is significant risk of reputational damage to the UK as a consequence of the way the Inquiries Act was drafted and is playing out. As I have said, I am completely convinced of the need to protect national security, but I ask the Minister to look again at these provisions. I also urge any new Government to consider seriously the implications of the ongoing lack of trust which is to some degree perpetuated and even aggravated by the current state of the law. As we fight our current anti-terrorist battles, it is profoundly important that we do not, through our legislative and administrative activities, demonstrate that we are not capable of learning the lessons of the past. For 10 years there has been consistent criticism of this Act by parliamentary committees, by many noble and learned Lords and by other very distinguished academics. It is beyond time for change.