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Behind closed doors

What use a public inquiry if ministers are to control the whole process?

John Ware
Thursday December 9, 2004
The Guardian

Inquiries into misconduct by the state are held in public to imbue the process with trust and respect. Yet soon they may not be so public. Ministers say their inquiries bill, which will be debated for the first time in parliament today, will make public inquiries as "effective as possible". By scrapping the 1921 Tribunals of Inquiry [Evidence] Act, the bill wrests from parliament the power to decide which matters should be inquired into and transfers this to ministers.

Few deny the need to tidy up the present arrangements. The 1921 act's potential for open-ended, costly legal wrangling reached its denouement at Lord Saville's inquiry into Bloody Sunday. As one judge put it, lawyers were "feeding at an open trough" for several years.

Yet it is also true that the inquiry has been so transparently rigorous and independent, its report is likely to make a considerable contribution to restoring trust in British justice in a part of the UK where it's been at rock bottom. Lord Saville and his panellists alone have decided which papers they should see, which witnesses to call, what to write. They alone will decide what will be published. The bill appears to give ministers ultimate control over all three areas.

Although the prime minister has instigated two inquiries related to the Iraq war, parliament did not order an inquiry under the 1921 act into whether the public was misled. However, should a prime minister with a slim majority again take Britain to war on a flawed prospectus, parliament would no longer have this power anyway. Nor would the chairman of such an inquiry have ultimate control over what was published.

Jane Winter, director of British Irish Rights Watch, says: "Individuals who have suffered through the negligence of state institutions, or who have survived major disasters, will find it much harder to establish the truth about what happened and hold those responsible to account." So, too, will the families of those killed with the involvement of state agents, such as the murder of the Belfast solicitor Patrick Finucane, shot by loyalists.

This is a murky matter involving agents working for all three intelligence services: MI5, the Special Branch and Military Intelligence. Mr Blair promised the Finucane family that if a judge found that a public inquiry was merited, it would happen. A retired Canadian supreme court judge so recommended. But the Northern Ireland Secretary, Paul Murphy, has said the inquiries bill must become law first to ensure that much of the Finucane inquiry will be in private.

The bill will give the government that power, and the power to decide how much of the report should be published. It will also be able to issue a restriction notice at any time before or during the inquiry about which documents or evidence can be withheld if it considers this "in the public interest".

Already the bill is having the exact opposite effect from what was intended. In Belfast it has engendered less, not more, trust in the government. Having fought for a public inquiry for 15 years, the Finucanes have disowned it before it has even started. "We do not have faith that an inquiry controlled by ministerial decisions offers an effective form of getting to the truth," says Patrick Finucane's son, Michael, a lawyer.

The bill's repercussions will be felt beyond inquiries like Finucane. Not only will ministers be able to decide what is made public; it also gives them day-to-day control over how inquiries are conducted. If a minister thinks an inquiry chairman has gone beyond his terms of reference, the costs of witnesses and lawyers may not be paid from public funds. This will curtail any legal indulgences. But it may inhibit chairmen from exploring avenues that they think might lead somewhere.

The bill gives the government greater powers to spare itself from allegations of wrong-doing and embarrassment but weakens its credentials for promoting the benefits of democracy to others.

John Ware is a reporter for BBC Panorama, whose programmes have led to calls for a public inquiry into the murder of Patrick Finucane