Inquiries Act 2005 (Select Committee Report)

Lord Trimble Excerpts

Thursday 19th March 2015 Lords Chamber

[Lord Trimble (Con)]

My Lords, I was also a member of the Select Committee which produced this report. Like other Members, I want to thank the noble Lord, Lord Shutt, for his chairmanship of the report and in particular for the way in which he has followed matters up in the interval since we made our report. I will come back to that later.

I had intended to start by quoting paragraph 14 of the report, in which we express our disappointment at the contribution that we had from the Government, but the noble Lord, Lord Richard, has done that in pungent terms and I merely endorse what he said.

I then thought of referring to paragraph 19, in which we challenged the Government. I will be interested to hear what the noble Lord, Lord Faulks, says about this when he replies. In that paragraph, we refer to how we recommend in the report a number of amendments to the Inquiry Rules 2006 and point out that the power exists to make those amendments by order. We suggest that this is so simple a procedure that there is no reason why the Government cannot make these amendments to the Inquiry Rules “within three months”. The Government’s response accepts the recommended changes in the rules but I am not aware of any order coming forward to implement them.

A lot turns on the question of the type of inquiry that one has. I want to touch on that for a moment, first, by referring to the Royal Commission on Tribunals of Inquiry back in the 1960s. It made a number of important recommendations, the sixth of which was:

“No Government should in future set up a tribunal of the type adopted in the Profumo case to investigate any matter causing nation-wide public concern”.

That inquiry was not established under the 1921 Act. It was a non-statutory inquiry and the judge conducted it entirely in private. Witnesses were not permitted to hear the evidence of other witnesses and there was no opportunity for any witness to test the evidence of another witness. Naturally, we described this in our report as unsatisfactory but I much prefer the terms of the royal commission in saying that no such tribunal should be set up in future. I wish that that had been before the Northern Ireland Office when, a few months ago, it decided to establish a private inquiry into the on-the-runs letters. The description of the Profumo inquiry fits pretty well the way in which that inquiry was conducted, which was unfortunate.

However, the main issue is whether the Act should be used or non-statutory inquiries should take place. The starting point here should really be: what was the intention of the 2005 Act? The genesis of the 2005 Act appears to have been in a recommendation made by Sir Anthony Clarke—now the noble and learned Lord, Lord Clarke—in the Thames safety inquiry in 2000. He commented:

“The time has in my opinion come to set up a statutory framework for inquiries generally to replace the various statutes which govern them at present”.

That language was echoed in the Explanatory Notes to the 2005 Bill, which said that the object was,

“to provide a comprehensive statutory framework for inquiries”,

and the Minister introducing the Bill virtually repeated those words. That language points to the Act being used for inquiries generally. It does not say that the Act is optional. It does not say, “We have enacted this Act and you don’t have to pay any attention to it. You can ignore it if you like”. That would be a rather novel proposition for legislation. I know that the practice has developed of non-statutory inquiries and it is perhaps late in the day to challenge that now. However, I suggest that it is not really within the original intention of the Act, which is why we made the recommendations we did in the terms that have been mentioned.

Another issue is perhaps more significant. It is the question of the compliance of the inquiries with the requirements of Article 2 of the European Convention on Human Rights. It is fairly clear that non-statutory inquiries are not compliant with the ECHR. I will refer to what we said in paragraphs 69, 70 and 74. I will not go through them in detail but the Edwards case is mentioned, as is a subsequent case in which the court directed the setting-up of a number of inquiries and went on to say that steps would have to be taken to ensure that the persons conducting those inquiries had the powers to compel witnesses and the disclosure of documents. I am not quite clear as to how that has happened in practice and whether anything has been done. Again, perhaps the Minister might enlighten us when he replies.

On this matter, the Government say in paragraph 32 of their response that inquests are,

“the main way in which the Government fulfils its responsibilities under Article 2”.

Three comments come to mind with regard to that. First, Article 2 goes wider than inquests. It is not just a matter of unlawful killing but of ill treatment and unlawful killing, so you cannot say that you regard inquests as meeting the requirements of Article 2 when it goes wider than the subject matter of inquests. Secondly, inquests are limited compared to inquiries. I will not go into detail on that. We set that out in paragraph 83 of the report, which shows that it may not be desirable to use inquests to fulfil the requirement of Article 2.

However, there is a more general point to be made because while we have the particular terminology of Article 2 in the ECHR, the general principle nowadays goes further. The second report of the Turkel commission, which I was attached to as an international observer, said:

“The general principles for an ‘effective investigation’ can be found in various international human rights law sources, including binding conventions (such as the Convention against Torture); interpretations of the International Covenant on Civil and Political Rights by the Human Rights Committee and its decisions in specific cases; and resolutions adopted by the General Assembly of the United Nations”.

It then goes on to refer to the ECHR. If this has migrated into a general obligation on human rights law, it reinforces the point that inquiries should be done on the basis of the statute and with the powers that the statute gives.

In chapter 6 of the report, we deal with another aspect, namely the independence of inquiries. We refer there to the reservations that the Joint Committee on Human Rights had with regard to the various powers that the Government have to influence the conduct of the inquiry, which led the Joint Committee to think that those powers in themselves rendered the inquiries not in compliance with the convention.

We make a number of recommendations in paragraphs 206 to 210. I notice that the Government accept one of those recommendations but reject three of them, particularly the power that they have, as it were, to close down the inquiry. I notice that in their response, the Government say in paragraph 72 that they wish to “retain the flexibility” given by this provision. I think that “flexibility” is not the right word. The word that should have been used is “power” and the power should not be utilised in the way that the existing legislation permits.

My last statement is by way of a digression. I referred to the commission to which I was attached as an international observer. Following the example of the noble Lord, Lord Shutt, in following up matters, he might be interested to know that some months after he took that initiative here, I got together with the other international observer who is domiciled in Australia but who comes to this part of the world from time to time. We both went back to his room to raise the issue with the Israeli Government as to whether they were implementing those recommendations. I suspect, though, that I will have to go back again.