12/07/2005 Decision by the Chairman regarding Conversion to the Inquiries Act 2005
At the Inquiry’s Preliminary Hearing in Belfast, on the 22 June 2005, I announced that I proposed to ask the Secretary of State for Northern Ireland to convert this Inquiry to an Inquiry under the Inquiries Act 2005 (2005 Act). The power to convert an inquiry is contained within section 15 of the 2005 Act. Following that, I have received a number of representations questioning the need for and/or the wisdom of such a request. At the Preliminary Hearing, I set out the reasons why I proposed to ask for this Inquiry to be converted but I now consider it appropriate to deal with the points made in the various representations.
Six areas of specific concern have been raised in relation to the powers given to the Minister under the 2005 Act. These are:-
That the Inquiry and its Terms of Reference are set by the Minister without independent parliamentary scrutiny;
That the Inquiry panel is appointed by the Minister and the Minister has the power to dismiss any member of the Inquiry;
The Minister has the power to suspend or even prematurely end an Inquiry;
The Minister can impose restrictions on public access to the Inquiry, including whether the Inquiry or individual hearings can be heard in public or private;
The Minister can impose restrictions on the disclosure or publication of any evidence or documents given, produced or provided to the Inquiry; and
The Report of the Inquiry is published at the Minister’s discretion and the Minister has power to omit certain material from the Inquiry Report.
I shall deal with these points in order. Under the 2005 Act, the Inquiry and the Terms of Reference of the Inquiry are determined by the Minister. That, however, is equally true in relation to an Inquiry under section 7 of the Prison Act (Northern Ireland) 1953 (1953 Act). Similarly, the appointment of the Inquiry Panel under the 1953 Act is made solely by the Secretary of State. Whilst there is no reference under the 1953 Act to Inquiry Panel members being suspended or an Inquiry being ended, it is arguable that, in appropriate circumstances, such a power must lie with the Secretary of State. In these circumstances, the position of an Inquiry under the 2005 Act is no worse than the present position of this Inquiry. The representations I have received however overlook the fact that the powers of the Minister under the 2005 Act are specific (see sections 4 and 5) and under section 6 the Minister has a duty to inform Parliament of those matters.
The representations I have received suggest that by having these powers the Minister will intervene and exercise them in a way which would somehow interfere with the proceedings of the Inquiry and thereby affect its public nature, its independence and its ability properly to discharge its functions. There would appear to be no basis for these claims and as a simple statement they overlook a number of matters. These are:-
First of all, when the Secretary of State for Northern Ireland announced this Inquiry, in April 2004, he said it would be a Public Inquiry.
Secondly, under section 18 of the 2005 Act there is a requirement for the Inquiry to ensure that the Inquiry is in public and that documents made available to the Inquiry Panel are made public.
Thirdly, the powers in relation to the removal of the Inquiry panel members (section 12), or the suspension of an Inquiry (section 13) must be exercised in accordance with the limitations of those sections and a suspension must be notified to Parliament. In addition, the power to end an Inquiry prematurely must be notified to Parliament (section 14).
Fourthly, it is open to me, and will remain open under the 2005 Act, to ask for the Terms of Reference to be amended, should I consider that necessary.
Finally, they overlook and assume that the Inquiry Panel would accept any attempted interference with the Inquiry process or this Inquiry’s independence.
I now turn to the powers of the Minister to impose restrictions on public access, or disclosure of evidence/documents (section 19). This can only apply in respect of documents the Inquiry has actually seen. Under the 1953 Act, or indeed any other legislation prior to the 2005 Act, an Inquiry could have been prevented from seeing material by claims for Public Interest Immunity (PII). Any successful PII claim would have been determined by the Court and, if upheld, the documents would never have been seen by the Inquiry. The benefit of the 2005 Act is that all documents are seen. In my view, the power in section 19 to restrict disclosure or public hearings on such evidence is designed to protect the sensitivity of certain types of material rather than interfere with the independence of the Inquiry as suggested. Further, the restriction of access or disclosure must be in accordance with the provisions of section 19. Once again, expressing a fear that the Minister is able to act in a particular way is not sufficient, unless there are reasons for believing he will do so. Such an expression overlooks: the Secretary of State’s initial statement that this will be a public inquiry; the restrictions imposed by the 2005 Act; the requirement that a number things under the 2005 Act have to be done publicly and/or through Parliament; the fact that the Minister must act reasonably, and the position of the Inquiry Panel if it were to consider any actions by the Minister unreasonable and/or interfering with the Inquiry’s independence.
With regard to the final Report of the Inquiry, under the 1953 Act there is no obligation for the Inquiry Report to be published at all. The Secretary of State set up the Inquiry under section 7 and the Inquiry must therefore send its Report to him. The 2005 Act on the other hand (under section 25), requires publication and section 26 requires the published Report to be laid before Parliament. Whilst there is a power to withhold certain material in a final Report, this can only be done in accordance with the considerations set out in section 25, which relate to the same matters for which a restriction notice can be issued under section 19, and in my view are designed to protect the sensitivity of certain types of material. Therefore, I am of the view that the provisions relating to publication of an Inquiry Report under the 2005 Act are much clearer than under the 1953 Act, simply because of the duty to report that exists.
At the Preliminary Hearing in Belfast on the 22 June 2005, I said that I did not consider the 1953 Act conferred sufficient jurisdiction for this Inquiry to examine all of the matters in the draft List of Issues that had been published at that time. While section 7 of the 1953 Act refers to an Inquiry in connection with any matter arising under the Act or otherwise in relation to any prison, there are a number of matters within the List of Issues that arguably fall outside that. In reaching the decision that this Inquiry would be better held under the 2005 Act, I had to take account of the fact that there is every possibility that in the future the Inquiry might run into difficulty in obtaining documents, particularly from bodies not immediately associated with a prison. In fact the Inquiry has already been asked to obtain and follow up documents from a wide and varied number of sources. Were that to arise, any Order for production that was issued would first have to satisfy the Courts of its own vires, before the Court could determine whether the Order should stand. Therefore it would not be a matter of waiting to see if a body objected to an Order after it had been made. Further, in my view, it would not be appropriate to wait until that situation arose. The question of public confidence in the Inquiry has been raised but that confidence would be more shaken by a refusal by a Court to uphold an Order on the basis of vires.
It is also relevant that the persons making representations, on the one hand express fears that Government may or will act in a particular way under the 2005 Act, but suggest that to leave this Inquiry under the 1953 Act would not give rise to the same outcome. Some representations also said that there was no basis for inferring that full disclosure would not be forthcoming from all bodies the Inquiry had to approach. But if this were a safe premise, it is difficult to see why there would be any fears at all in a conversion to the 2005 Act.
When this Inquiry was announced by the Secretary of State for Northern Ireland, he said it would have the same powers as the Bloody Sunday Inquiry, which was established under the provisions of the Tribunals of Inquiry (Evidence) Act 1921. In fact, this is not the case. The Inquiry is established under the 1953 Act where the powers are different and certainly less clearly defined than under the 2005 Act. I said at the Preliminary Hearing in Belfast on 22 June, and I will repeat, I consider the 2005 Act provides the best means of ensuring both the thorough investigation that this Inquiry demands and the fullest possible exposure of our work. That, together with the requirements of Article 2 of the European Convention on Human Rights (though not a strict legal obligation), should, I believe, enhance the confidence of all that this Inquiry will not only be a full and open Public Inquiry, but will also be, and will be seen to be, fully independent in its outlook and approach.
It has also been said by some of those making representations that if there is some difficulty with the Inquiry’s Terms of Reference or powers, then the Inquiry should be converted to one under the Tribunals of Inquiry (Evidence) Act 1921. Attractive as this may appear, I am afraid it is simply not possible as the 1921 Act has now been repealed and is no longer extant.
In the circumstances I consider my decision to ask for conversion to the 2005 Act is the correct one, and I now propose to write to the Secretary of State for Northern Ireland. It has been said that the Inquiry did not consult the family or others on the announcement that it proposed to ask for conversion. This is not correct. The family were notified of the proposal in advance of the Preliminary Hearing and all that was announced on 22nd June was the proposal to make such a request. It has also been said that when the 2005 Act was going through Parliament, it was specifically stated that there was no intention to convert this Inquiry. At the time that was correct, as the decision to ask for the conversion is one that has been reached by this Inquiry. At the present time, it has not been discussed with the Secretary of State. Ultimately, the decision on whether or not to convert will be for him. In reaching this decision I am fully aware of the comments others have made in relation to the 2005 Act, particularly when it was a Bill going through Parliament. I have taken them fully into account.
I will emphasise again that this Inquiry is entirely independent of Government and parties can be assured that the Inquiry will not let anyone interfere with that.
Lord MacLean.
Chairman.
12 July 2005.