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Torture and Rendition (Government Policy)
4.45 pm
Tony Baldry (Banbury) (Con): It is a great pleasure to be under your chairmanship, Mr. Bercow. I have given the Minister and his officials notice of the points that I intend to make so that they will be fully aware of what I intend to say.
On 5 December the Foreign Secretary issued a statement on rendition in which he said, among other things, that
"we, the EU and the wider international community must be clear on the terrorism threat we face. Modern terrorism means mass casualties, as we saw on 11 September and 7 July. We are exposed to an unprecedented threat of suicide attacks on innocent civilians using sophisticated technology and techniques."
The concern is that the United States and, by implication, the United Kingdom, by acts of omission and commission, in pursuing what in policy shorthand is now called the war on terror, has turned a blind eye to the use of torture if the wider ends are considered acceptable.
In giving evidence to the House of Representatives and the US Senate Committee on Intelligence, Cofer Black, a former chief of the counter-terrorist centre of the CIA, said:
The concern among many is that that is shorthand simply for the ends justifying the means. That is not a new dilemma in the history of civilisation or our nation's history. Sir William Holdsworth, in his "History of English Law", observed:
"We have seen that the use of torture, though illegal by the common law, was justified by virtue of the extraordinary power of the crown which could, in times of emergency, override the common law."
Indeed, one of the first acts of the Long Parliament in 1640, at the time of the civil war, was to abolish the court of Star Chamber, where torture evidence had been received.
On 5 December, US Secretary of State Rice, commenting on US policy on rendition, said:
"it is the policy of the United States . . . to comply with its laws and comply with its treaty obligations, including those under the Convention Against Torture."
The Foreign Secretary issued a statement the same day—they were doubtless choreographed—which sought to set out the UK Government's position on rendition but did no more than to repeat and reassert the position of the Government of the United States. The Foreign Secretary said—
4.47 pm
Sitting suspended for a Division in the House.
5.2 pm
On resuming—
Tony Baldry : As I was saying before the Division, the Foreign Secretary said on 5 December:
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"Secretary Rice's reply makes clear that US policy is to comply with the UN Convention Against Torture, and in this respect the United States Government complies with its constitution, its laws and its Treaty obligations."
As a statement, that does not really tell us anything more about the position of the UK Government, and as a memorandum from the Foreign Secretary's private office to the Prime Minister two days later, on 7 December, which was subsequently leaked and published by the New Statesman, makes clear, this minimalist approach was clearly deliberate:
Even a casual glance at the Foreign Secretary's statement will show that it was not "in response to"; it was simply an unconditional, unquestioned adoption of the US position without qualification or reservation of any kind. It is this which causes Members on all sides of the House, and very many people outside Parliament, real anxiety
My hon. Friend the Member for Chichester (Mr. Tyrie) has established the all-party parliamentary group on extraordinary rendition. It is an indication of the concern in the House about the issue that the group already has more than 50 Members of Parliament, and its vice-chairmen include the acting leader of the Liberal party, the right hon. and learned Member for North-East Fife (Sir Menzies Campbell), and the hon. Member for Sunderland, South (Mr. Mullin), who until recently was, of course, a Minster in the Foreign Office in this Government. More information about the group's work can be found at their website www.extraordinaryrendition.org.
As Professor James Crawford, the Whewall Professor of International Law at Cambridge university has observed in an opinion published in December—
5.3 pm
Sitting suspended for a Division in the House.
5.18 pm
On resuming—
Tony Baldry : I was quoting Professor Crawford's opinion, which was commissioned by the all-party parliamentary group and published in December. It is entitled "Extraordinary rendition of terrorist suspects through the United Kingdom", and states that
"the United Kingdom is bound by its own obligations in respect of torture, and not by any view taken by the United States as to what constitutes torture . . . Under international law, States are prohibited from sending a person to a territory where it is believed that he will be tortured. This obligation . . . arises both under general international law and under international treaties to which the United Kingdom is a party."
Professor Crawford went on to observe:
"The United States ratified the Torture Convention with an extensive reservation dealing with various aspects of the application of the Convention in United States law".
Therefore, it is not sufficient for the UK Government simply to seek cover from Secretary Rice's assurances. The test in the UK is not the US implied test of whether
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the risk of torture is more likely than not, but whether there is a real risk that a person would be tortured if returned.
Moreover, it seems reckless of the UK Government to accept US assurances without reservation or questioning when we have all witnessed the way in which the US Government have operated Guantanamo Bay, whose procedures and presence offend every principle of international jurisprudence.
I understand that the officials who prepared the Minister's briefing in response to this debate are from the Foreign Office's counter-terrorism department. They cannot be insensitive to the fact that Defence Secretary Donald Rumsfeld approved 24 interrogation techniques for use at Guantanamo Bay. In an article entitled "US Abuse of Iraqi Detainees at Abu Ghraib Prison" in the American Journal of International Law, Tom Farrer observes that the techniques are aimed at
It is clear beyond peradventure that the US Government have engaged in cruel, inhuman and degrading treatment, both at Abu Ghraib and at Guantanamo Bay, yet they claim that that treatment does not amount to torture. The UK Government should not be associated with those semantics.
In last month's edition of "International Affairs", the journal of Chatham House, Alex Bellamy, who is a lecturer in peace and conflict studies at the university of Queensland and recently wrote a book called "Just Wars" and is an expert in that area of policy, observed that
"there is a significant amount of circumstantial evidence to suggest use of torture by the US and some of its allies in the war on terror is both widespread and systematic . . . a coordinated strategy of information gathering, based on torture".
Bellamy went on to observe that
"there is evidence to suggest that successive US Attorney Generals have attempted to create a permissive legal environment for the use of torture . . . the current Attorney General, Roberto Gonzales, played a key role as White House Legal Counsel in sidelining the State Department's concerns about the use of torture. In a memorandum to the President on 25 January 2002, Gonzales argued that:
'The nature of the new war on terrorism places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors and in order to avoid further atrocities against American civilians. This new paradigm renders obsolete (the 1949 Geneva Protocol on the Treatment of Prisoners of War) strict limitations on questioning of any prisoners'."
Clearly, the United States has decided to abandon respect for international law. Indeed, President Bush clearly stated that in 2003 when he said:
"International Law? I better call my lawyer . . . I don't know what you are talking about by International Law".
The issue for the House is whether the United Kingdom Government have also decided to abandon the principles of international law. Once torture becomes accepted in any legal system, it spreads like an infectious disease. It saves the labour of investigation and hardens those who become accustomed to its use. The Foreign Affairs Committee has accused the Government of failing to deal with its questions on rendition with
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appropriate transparency and accountability and has recommended that the Government end their policy of what the Committee described as "obfuscation". Such behaviour by the Government raises the question of what they think they have to hide.
The matters that I am talking about clearly need proper explanation. For example, minutes of the meeting between US justice officials and EU officials in January 2003 show that
"both sides agreed on . . . increased use of European Transit facilities to support the return of criminal/inadmissible aliens . . . and improving cooperation in removals."
Ministers seem to suggest that such allegations are without foundation, so why did the legal affairs committee of the Council of Europe publish, a matter of weeks ago, a report that concluded that
"drawing on all this concordant information and evidence we can say that there is a great deal of coherent convergent evidence pointing to the existence of 'relocation' or 'outsourcing' of torture. Acts of torture or severe violation of a detainee's dignity through the administration of inhuman or degrading treatment are carried out outside national territory and beyond the authority of the national intelligence services" ?
Those are the conclusions of a committee of elected representatives drawn from throughout Europe, reflecting the whole range of political views.
Former CIA agent Robert Baer was quoted by the BBC as saying that
"if you want a serious interrogation you send a prisoner to Jordan. If you want him to be tortured you send him to Syria. If you want him to disappear . . . then you send him to Egypt".
Does the Foreign Office consider that he was fantasising? Was a former British ambassador to Syria, Henry Hogger, making things up when in December, commenting on the case of Mahrar Arar, a Canadian citizen who was taken to Syria and tortured, he observed that
When Craig Murray, the former British ambassador to Uzbekistan, published on the internet copies of telegrams that he sent to London between 2002 and 2004, warning that information being passed on by the Uzbek security services was "torture tainted", was he fantasising? Mr. Murray also published on the internet a document that clearly appears to be the text of a Foreign Office legal opinion seeking to argue that the use by intelligence services of information extracted through torture is not a violation of the UN convention against torture.
Perhaps it was a similar approach to information extracted through torture that caused the Government to contest the assertion that the Special Immigration Appeals Commission should not receive evidence that has or may have been procured by torture inflicted by officials of a foreign state in order to obtain evidence. The judgment of the House of Lords, given on 8 December in the case of A (FC) and others v. the Secretary of State for the Home Department, should be
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required reading for every Member of the House and every Minister. The Appellate Committee of the House of Lords, comprising Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffman, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Carswell and Lord Brown of Eaton-under-Heywood, unanimously found against the Government. It is difficult to imagine a stronger representation by the Appellate Committee.
"the English common law has regarded torture and its fruits with abhorrence for over 500 years . . . I am startled, even a little dismayed, at the suggestion . . . that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden . . . The issue is one of constitutional principle, whether evidence obtained by torturing another human being may lawfully be admitted against a party to proceedings in a British court . . . To that question I would give a very clear negative answer."
"Torture is not acceptable. This is a bedrock moral principle in this country. For centuries, the common law has set its face against torture . . . Torture attracts universal condemnation . . . No civilised society condones its use. Unhappily, condemnatory words are not always matched by conduct."
"The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it . . . many people in the United States . . . have felt their country dishonoured by its use of torture outside the jurisdiction and its practice of extra-legal "rendition" of suspects to countries where they would be tortured . . . the rejection of torture . . . has a special iconic importance as the touchstone of a humane and civilised legal system."
If a member of the Appellate Committee of the House of Lords feels confident to say in terms in a judgment in a landmark case on torture, res judicata, that
"many people in the United States . . . have felt their country dishonoured by its use of torture outside the jurisdiction and its practice of extra-legal 'rendition" of suspects'",
can Ministers be surprised that hon. Members on both sides of this House and large numbers of people outside it are less than convinced when the Foreign Secretary simply repeats the mantra of the US Secretary of State that that country does not indulge in torture?
"Views as to where the line is to be drawn may differ sharply from state to state. This can be seen from the list of practices authorised for use in Guantanamo Bay by the US authorities, some of which would shock the conscience if they were ever to be authorised for use in our own country."
It must be of very real concern that at the start of the 21st century it is necessary for the most senior judges in the land to express the view put simply by Lord Brown:
There have been other recent cases in respect of which the Government's approach has been equivocal. There was the judgment on the torture and killing of Iraqis by British forces, published on 22 December. The Government argued unsuccessfully in respect of the right to rely on evidence extracted under torture and to be exempt from liability for torture carried out by British troops outside the UK. There is also the case of
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Mitchell and others v. Al-Dali and others. I will not say too much about that case. It has been before the Court of Appeal and I understand that it is going to the House of Lords, so it is almost certainly sub judice, but what is not sub judice but is a matter of public record is the letter of Geoffrey Bindman published in The Guardian. It stated:
"My clients . . . seek redress against the officials responsible for torturing them in Saudi Arabia. Our Government intervened unsuccessfully in the Court of Appeal in support of the Saudi claim to immunity for the Saudi Kingdom and its officials. The Court of Appeal rejected immunity for the officials and the Saudi Kingdom is appealing to the House of Lords. Again, the British Government are seeking to intervene against its own citizens, yet Article 14 of the UN Convention Against Torture, requires every Government 'to ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation'."
There are a number of questions that Ministers should answer and of which I have given this Minister notice, so there should be no surprises for him here. In the Foreign Office memo of 7 December to No. 10, officials concluded that
"we now cannot say that we have received no such requests for the use of UK territory or air space for extraordinary rendition."
To whom do the Government believe that requests for rendition would be made? How was it that it took the machinery of government some weeks to resolve the line to take on the issue? What representations have the Government made to the US Administration about the practice of extraordinary rendition?
The US Government have now clearly acknowledged that they have rendered detainees to other countries for questioning; indeed, that practice is now well documented in a number of cases, such as that of Mahrar Arar, which I have already cited, who was kidnapped in Canada. Amnesty International has told me of some 78 Gulfstream V Turbojet flights that have stopped over in the UK since 2001 that could be connected to rendition. One could be walking down the street in any part of the world and be kidnapped. Have the Government asked the US Administration in terms whether, and if so how many, detainees have passed through UK airspace or airports?
Have the US Administration sought permission for any state flights to pass over UK airspace or land in the UK to transfer detainees? Has any agency in the US Administration, including the CIA, asked for such permission and have the UK Government ever granted a blanket permission for the passage of such flights? That is particularly important because the December memo to No. 10 admits that there is no way of the UK Government knowing whether any detainees captured by British forces in Iraq or Afghanistan have subsequently been transferred by the US to interrogation centres overseas.
Whatever the US Government choose to do, the UK Government have obligations under international law.Have the Government at any time reminded the US Administration of the higher threshold that must be passed in order to meet UK legal obligations with respect to the UN convention against torture? Has an explanation been given that UK law will have been breached if there are grounds to believe that rendition may carry a real risk of torture and that the US interpretation that such rendition will become unlawful if it is "more likely than not" that the person will be tortured is insufficient?
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Let us step back from the carefully phrased denials and examine what we know. Evidence has emerged that makes these concerns plausible: the snatched photos of the cages at Guantanamo and the photographs of prisoner abuse at Abu Ghraib. The existence of secret CIA-run prisons in eastern Europe has not been denied by the Bush Administration. There is compelling testimony from people who claim to have been shipped abroad by the US and tortured. The UK Government have not questioned the definition of torture being used by the US Government, which differs from that set out in international human rights treaties, and appears not to extend to forms of cruel, inhuman and degrading treatment. The UK Government show no inclination to investigate reports of US aircraft using UK airspace or airports for rendition purposes. Is it out of the bounds of possibility that the US might not have made formal requests for the use of UK airspace for such flights, but carried them out anyway?
My shopping list of what I would like the Minister to do is short—only three things. First, given the mounting evidence that UK territory has been used to assist in unlawfully transporting detainees to countries where they may face disappearance, torture or other ill-treatment, the UK Government should launch an immediate, thorough and independent investigation. Secondly, as part of such an investigation, the UK Government should ask the US Government to declare whether they have used UK airports, airspace or US military airbases on UK soil for the purposes of extraordinary rendition since 1998, with or without the approval of the UK authorities. That would include transporting detainees from, to or through UK airspace as well as servicing planes about to embark on or return from a rendition mission. Thirdly, what steps are being taken or considered to prevent future use of airspace and airports in the UK by aircraft being used for such illegal activities?
Finally, I urge the UK Government to co-operate fully with the parliamentary investigations into the issue and the Council of Europe inquiry led by its secretary-general, Terry Davis, himself a former Labour Member of Parliament.
I submit that the Prime Minister has repeatedly failed to give a straight answer to questions about possible British Government complicity, but seeing nothing, hearing nothing and saying nothing is becoming less and less of an option.
5.33 pm
The Minister for Trade (Ian Pearson) : It is a pleasure to serve under your chairmanship for the first time, Mr. Bercow, and I very much welcome the opportunity that the hon. Member for Banbury (Tony Baldry) has given us to debate these issues today.
Human rights form one of the cornerstones of this country's value system and one of the key elements in our country's social and legal structures, informing our policies, legislation, interactions with one another and our relationships with our international partners. The UK unreservedly condemns the use of torture, and is working hard with its international partners to eradicate that abhorrent practice by launching a global campaign
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for universal ratification of the UN convention against torture, as well as lobbying in support of its optional protocol; publishing and distributing a number of human rights handbooks specifically aimed at combating torture; and supporting anti-torture work by the United Nations, the Organisation for Security and Co-operation in Europe and the Council of Europe. The UK also used its EU presidency to take forward an EU initiative to combat torture around the world. That included démarches in 39 countries.
The hon. Gentleman made much of allegations about illegal rendition. As my right hon. Friend the Foreign Secretary has said a number of times to the House, our policy on rendition is clear. We do not deport or extradite any person to another state where there are substantial grounds to believe that that person will face a real risk of torture, or where there is a real risk that the death penalty will be applied. We have found no evidence of detainees being rendered through the UK or overseas territories since 11 September 2001. Nor have we found evidence of detainees being rendered through the UK or overseas territories since 1997 where there were substantial grounds to believe that there was a real risk of torture. We would not assist in a rendition if to do so would put us in breach of our national or international obligations.
The hon. Gentleman suggests that we have been seeing nothing, hearing nothing and saying nothing. That is not the case. We have addressed the issue with the US Government. As part of our close co-operation with them over several years, including in recent months, we have made it clear to them that we expect them to seek permission to render detainees via UK territory and airspace, including overseas territories. We have made it clear to them that we will grant permission only if we are satisfied that the rendition would accord with UK law and our international obligations, and we have also made it clear to them how we understand our obligations under the UN convention against torture and the European convention on human rights. We are clear that the US would not render a detainee through UK territory or airspace, including overseas territories, without our permission. The US has sought such permission in the past, as the Foreign Secretary has told the House.
The hon. Gentleman cited the Foreign Affairs Committee's suggestion that the Government have a policy of "obfuscation" on the issue. That could hardly be further from the truth. Preliminary searches of recent records produced no evidence of US requests to use UK airports or airspace. As the search continued back in time, we found four cases in 1998. The Foreign Secretary lost no time in updating the House as new information came to light, and he will continue to do so. The whole world loves a good conspiracy theory and is always reluctant to let the facts get in the way of a good story. The hon. Gentleman suggested that it would seem reckless to accept US assurances. I shall doubtless annoy the cynics by saying that we do indeed accept the assurances of our close ally.
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That does not mean that we always agree, however. Indeed, we sometimes differ on matters of policy, and we say so. On Guantanamo Bay, the Prime Minister has stated that he sees it as
We have made it clear that we regard the circumstances in which the detainees continue to be held in Guantanamo Bay as unacceptable, and the US Government are fully aware of our views.
The hon. Gentleman raised the issue of Iraqi detainees at Abu Ghraib. He will recall that US servicemen and women have been disciplined, prosecuted and convicted for what happened there. The US Detainee Treatment Act, which President Bush signed into law on 30 December 2005, provides that no individual in the custody of the US Government or under their physical control, regardless of nationality or physical location, shall be subject to cruel, inhuman or degrading treatment or punishment, which it defines as the cruel, unusual and inhuman treatment or punishment that is prohibited by the US constitution. That legislation makes a matter of statute what President Bush has made clear was already US Government policy, and we welcome that.
As for our own laws, the hon. Gentleman suggests that the Government did not welcome the unanimous finding of the House of Lords that evidence that has or may have been procured by torture is not admissible before the Special Immigration Appeals Commission. On the contrary, it has never been the Government's intention to present to court evidence that we believe may have been obtained by torture. We believe that that would be wrong. The effect of the judgment was to reinforce that clear policy with an exclusionary rule of law. The Government have welcomed the clarity that their lordships' judgment of 8 December has brought to this important and difficult issue.
The hon. Gentleman also spoke about mounting evidence to indicate that the Government are complicit in cases of extraordinary rendition. He cited the inquiry led by Senator Marty, chair of the Council of Europe Parliamentary Assembly's legal affairs and human rights committee. Senator Marty produced his information memorandum on 24 January, which was debated in the Parliamentary Assembly on 26 January. The hon. Gentleman did not report what was said during the debate, in which several British members spoke about the lack of substance and evidence in Senator Marty's reports. I assure the hon. Gentleman that the Government are co-operating fully with Senator Marty's inquiry, as with the inquiry launched by the secretary-general of the Council of Europe, my good former colleague Terry Davis.
In addition to those inquiries and a temporary committee of inquiry established by the European Parliament, the Government have also been co-operating with the inquiry on rendition allegations co-ordinated by the chief constable of Greater Manchester.
The hon. Gentleman suggests that we asked the US Government to make a public declaration. It is not for us to make such a demand of another Government, especially about intelligence and security-related
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matters. However, I repeat the following points. We have found no record of US requests for rendition through the United Kingdom since May 1997, other than those about which my right hon. Friend the Foreign Secretary has informed the House. We have made it clear to our US colleagues that we expect them to seek permission to render detainees via UK territory and airspace, including overseas territories. We have made it clear that we will grant permission only if we are satisfied that the rendition accords with UK law and our international obligations. We have made it clear how we understand our obligations under the UN convention against torture and the European convention on human
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rights. We are clear that the US would not render a detainee through UK territory or airspace, including overseas territories, without our permission.
The hon. Gentleman concluded by insisting that the Government have failed to give a straight answer to questions about complicity. I repeat my right hon. Friend the Foreign Secretary's clear statement of policy: we would not assist in any rendition case if to do so would put us in breach of United Kingdom law or our international obligations.
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