Civil Society, Europe, Headlines, Human Rights

RIGHTS: Some Common Hopes Lie With Lords

Sanjay Suri

LONDON, Apr 24 2009 (IPS) - Human rights campaigners are looking to the House of Lords to thwart, or at least dilute, a proposed new law to enable secret inquest.

The bill has been passed by the House of Commons, the elected legislature in Britain. The Coroners and Justice Bill now awaits approval in the House of Lords, the upper house whose members are appointed by the government.

Not for the first time, campaigners are actually looking to the upper and traditionally more elitist chamber for protection of liberties.

Human Rights Watch has warned that “legislation to allow the government to hold secret investigations into suspicious deaths involving state agents would undermine accountability and breach human rights law.”

The bill, the human rights group says, would allow the home secretary to decide “that an investigation into a wrongful death, usually held in open court, should be held in secret.” Such investigations would be declared “certified” and could be held without a jury, with “sensitive” material discussed in closed sessions from which the families of the victims, the public, and the media would be excluded, Human Rights Watch warned.

Certification, it says, could be justified on the grounds of national security, preserving diplomatic relations with another country, witness protection, or preventing crime.

The clause within the bill, that otherwise also includes some wide-ranging reforms, arises from a case in which the government has said disclosure of necessary material could prove damaging to the investigation and to some of the parties. But this has given rise to concern that the new powers could be misused.

“The provision could be used in sensitive cases where public scrutiny is most important,” Ben Ward, associate director for the Europe and Central Asia Division at Human Rights Watch told IPS. “But those are the cases the government is most likely to certify, so that the inquests are held in secret.”

The concern expressed by Human Rights Watch, Ward said, is shared by the British Legion on behalf of servicemen who have died. The new law would mean potentially that inquest into the death of British soldiers who may have been killed in ‘friendly fire’, for instance, may no longer be held in public or within the knowledge of their families.

It is worrying, Ward said, that the bill is coming up in the context of “a growing resort by the government to the use of secrecy when it comes to national security, but also sensitive relations with other governments.” A recent instance, he said, was the decision by the British government to drop an inquiry into a military order with Saudi Arabia by the company BAE systems on the grounds that it would be prejudicial to diplomatic relations.

“There is growing use of closed proceedings for example in cases of deportation, or for indefinite detention of terror suspects,” Ward said.

According to Human Rights Watch, an eleventh hour government amendment giving a judge, rather than the Home Secretary, authority to determine whether a “certified” inquest should be held without a jury, and the fact that this decision is subject to judicial review, do not allay concerns. “Neither addresses the fundamental problem of executive interference in what are supposed to be independent inquiries into state involvement in a person’s death,” the human rights group said.

“The combination of executive interference and secrecy fundamentally undermines the inquest process,” said Ward. “With such broad grounds for certification and no access to the secret evidence, families have little chance of overturning decisions to hold inquests in secret.”

The power to order secret inquests is incompatible with Britain’s obligations under international law, Human Rights Watch says. “Under article 2 of the European Convention on Human Rights, which guarantees the right to life, the UK has a duty to conduct independent and effective investigations into wrongful deaths where state agents may have been involved,” it says. “These investigations should be open to public scrutiny, and family members of victims have a right to participate in the process as much as reasonably possible.”

Secret inquests inevitably conflict with the legitimate interest of family members to know the truth about the death of their loved one, the group says. “The government proposal to have security-cleared special counsel represent the interests of next-of-kin in closed sessions would essentially replicate the seriously flawed system of special advocates used in terrorism cases involving deportations and control orders.

“If, as in those cases, the rules do not permit the special counsel to discuss with family members information directly relevant to the investigation, it is difficult to see how the special counsel could properly represent their interests.”

The provision in the present bill had earlier been incorporated into the counter-terrorism bill but was withdrawn. It was later introduced into the Coroners and Justice Bill that was passed by the House of Commons without significant opposition.

“But there was a lot of scepticism when the provision was raised in the counter-terrorism bill, and it is likely to face much harder scrutiny in the Lords,” Ward told IPS.

If the House of Lords were to move amendments to the bill, it would then have to be reconsidered in the House of Commons. Disagreements move back and forth, in what is quite officially called a game of ping-pong, until consensus can be reached. The hope for a liberal element to that consensus now rests with the Lords.