March 14, 2018 | By Sikh Siyasat Bureau
London: Last week in the interests of openness and transparency in the conduct of public affairs a four year long struggle to disclose secret files and papers from 1984 under the 30 year rule came to a head in a three-day Freedom of Information tribunal.
The UK government maintains that this ‘historic’ material remains sensitive and could disrupt Anglo-Indian relations. Most commentators believe it is more likely the disclosure will embarrass the UK government in its provision of advice and assistance which led to the 1984 Sikh Genocide and human rights violations which followed in order to secure trade.
The hearing was heard largely in ‘closed’ (secret) – with judgement reserved. Judgement is expected in around six weeks and could be subject to onward appeal. But the more the UK government protests the more the suspicion and rumour that it has something to hide.
However, KRW Law acting for the Sikh Federation (UK) also began judicial review proceedings with a pre-action protocol letter about the UK Government’s continuing failure to adequately and independently investigate the UK’s role in the events of 1984.
On 1 November 2017 KRW Law requested in writing on behalf of the Sikh Federation (UK), following publication of the Sacrificing Sikhs, the need for an investigation report (“the Report”), that the Foreign Secretary establish a public inquiry pursuant to section 1 of the Inquiries Act 1985. That request was refused on 15 December 2017.
The letter states:
“The UK’s wider involvement in the serious human rights violations committed by the Indian authorities against Sikhs during the period in or around 1984 needs to be investigated in order to establish whether the UK provided assistance and/or was involved to any extent in the atrocities committed against the Sikh community.”
“The revelations in January 2014 prompted significant public concern and media coverage. For the domestic and international Sikh Community, the disclosure that the UK had assisted the Indian authorities in the lead up to the Amritsar Massacre led to widespread distress, substantial hurt, and disbelief.”
The Heywood Review was inadequate. From the start, the Sikh Federation (UK) has raised significant concerns about its speed and thoroughness, as well as its substantive conclusions. Those concerns have been set out in substantial detail in the Report, commissioned by the Sikh Federation and published on 1 November 2017.
In summary, the Report outlines that:
The approach adopted by the Heywood Review, viewing the military assistance in isolation rather than in the context of the wider UK-India relationship, undermines its credibility as an inquiry capable of addressing the public interest in accountability and transparency in this matter.
KRW Law corresponded with the FCO on the Sikh Federation’s concerns in letters dated 3 November 2016, 11th January 2017, 16th January 2017, and 17th February 2017. This exchange of correspondence anticipated the Report being prepared and provided.
On 1st November 2017, the Claimant’s representatives wrote to the FCO providing a copy of the Report. The letter explained that:
“The publication of this independent research has further undermined public confidence in the original Heywood Review. As such there has been extensive media coverage calling into question the adequacy of the previous investigation, the need for a further investigation and in particular the need for truth and justice in respect of the events of 1984. As such, there has been further political requests for an independent inquiry and to that end we write to ask that you now consider urgently commissioning an independent investigation in the terms of the Inquiries Act 2005 in light of the findings of the report, and the wider public interest in ensuring that truth and justice is achieved in respect of the events of 1984…”
The FCO replied on 15th December 2017 refusing to commission an inquiry (“the decision”). The reasons given for the decision were very thin. Beyond setting out a limited response to minor points made in the Report, the decision failed to grapple at all with the core substantive findings outlined within it. The core paragraph of the decision was as follows:
“Although the [Report] sets out an extensive analysis of the tragic events of 1984 and beyond, based on the papers released to [TNA] and other material, we respectfully differ on the assertion that your client’s report substantiates the need for an independent investigation. We do not believe that the report constitutes sufficient evidence to challenge the conclusions of the 2014 inquiry.”
KRW Law have set out in the pre-action letter why the decision is unlawful.
First, the decision discloses an error of law as to the correct legal test to be applied under section 1 of the Inquiries Act and/or took into account irrelevant considerations. The FCO has asked itself whether the Sikh Federation (UK) has proven that some of the matters it seeks the investigation of occurred. This is not the right question. It misdirected itself as to the correct interpretation and application of section 1 of the Inquiries Act.
There is no burden of proof on an individual or body requesting an inquiry to prove that the conclusions reached by a previous inquiry, especially an internal inquiry of limited scope, were wrong and/or to prove that the matters of concern (the provision of not just direct advice and assistance, but also indirect assistance) occurred. On the contrary, while the reaching of definitive conclusions may well be the outcome of the inquiry, even the inquiry itself does not need to be able to reach such conclusions to serve the public interest. The very point of the inquiry is to assess what facts and matters can be established.
Second, it is plain that as a result of asking itself the wrong question, the FCO has failed to take into account, adequately or at all, the public concerns justifying the need for an inquiry. These include:
Third, taking properly into account the background to the request for an inquiry, including the relevant considerations outlined directly above, the decision is irrational and/or disproportionate.
The letter states “the fact that military assistance was provided in the run up to the Amritsar Massacre is a matter of significant public concern. A limited internal inquiry, that draws conclusions which are unsustainable on their face, does nothing to address that concern. It is plain that to address public concern about what did or may have happened, a full inquiry needs to take place into the events of 1984, including where necessary, events before and after the Amritsar Massacre to establish whether:
The letter concludes: “no rational decision-maker, or one acting proportionately, would refuse such an inquiry into matters of significant public concern which may have continuing relevance today”.
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