UPDATE: On May 15, 2009, the UK Ministry of Justice announced that it would drop provisions in the Coroners and Justice Bill provisions allowing inquests into deaths to be held in secret and without a jury, citing a lack of cross party support in Parliament. The House of Lords is due to debate the bill on May 18. Human Rights Watch welcomes the decision to abandon the plans, which would have fundamentally undermined the inquest system.
(London) - Legislation to allow the government to hold secret investigations into suspicious deaths involving state agents would undermine accountability and breach human rights law, Human Rights Watch said in a submission to the House of Lords released April 24, 2009. The upper house of Parliament is to debate the proposed measure on Monday as part of a wide-ranging Coroners and Justice Bill.
The bill 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 (known as "inquests") 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. Certification could be justified on the grounds of national security, preserving diplomatic relations with another country, witness protection, or preventing crime.
"When the state is involved in a person's death, open justice is crucial," said Ben Ward, associate director for the Europe and Central Asia Division at Human Rights Watch. "But under these plans, the cases most in need of public scrutiny, such as ‘friendly fire' military deaths and deaths at the hands of police, would probably be held behind closed doors."
Human Rights Watch said that an 11th-hour government amendment in the House of Commons 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 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 proposal for closed inquests was originally included in the Counter-Terrorism Bill 2008, but was withdrawn by the government before the bill was submitted to the House of Lords. The proposal was re-introduced in the Coroners and Justice Bill without significant improvement. Thus far the government has not made a convincing argument that closed inquests are necessary, given the range of existing measures (including Public Interest Immunity certificates) to protect against disclosure of sensitive material.
The power to order secret inquests is incompatible with the UK's obligations under international law, Human Rights Watch said. 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. 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.
Withholding core evidence from interested parties and the media prevents the meaningful public scrutiny of alleged state involvement in deaths that is essential for ensuring accountability, Human Rights Watch said. Openness is paramount not only for credibility, but also to enable meaningful debate about measures to prevent reoccurrence.
Secret inquests inevitably conflict with the legitimate interest of family members to know the truth about the death of their loved one. 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.
