Select Committee on Foreign Affairs Minutes of Evidence

Examination of Witnesses (Questions 40-59)


13 DECEMBER 2005

  Q40  Sir John Stanley: From Pakistan.

  Mr Straw: It is what you asked me.

  Q41  Sir John Stanley: No, I am sorry, the allegation is that he was handed over to the CIA in Pakistan.

  Mr Straw: I know nothing about it.

  Q42  Sir John Stanley: Could you clarify that in a further letter to the Committee?

  Mr Straw: I may or may not is the answer, because I think basically these are matters for investigation by the ISC.[2]

  Q43 Sir John Stanley: I think it is very relevant to the broad policy point which is wholly within the remit of this Committee. We are simply asking whether you have knowledge that MI6 were aware of this particular case. The question I am putting to you is: Was he handed over in Pakistan to the CIA?

  Mr Straw: As I say, I will consider your question and offer a reply.

  Q44  Mr Illsley: Given that Condoleezza Rice has stated that America does use rendition, and some other countries actually use rendition, will we now insist on records of flights in and out of this country which are taking part in rendition and will we allow this to continue?

  Mr Straw: First of all, other countries do. That is pointed out in Condoleezza Rice's statement, and this includes France which has used this practice. If it is lawful, and it happens not to be lawful in this country—Sir John will remember when that was established—it was as a result of a decision which followed an arrest in Zambia of a Provisional IRA suspect called Mullen in 1988 where there was a transfer from that country by arrangement with the local authorities which by-passed the extradition arrangements and Mullen spent ten years in prison, properly convicted, but later, when information came out about the circumstances in which the transfer took place, the Court of Appeal, in 1999, decided to overturn his conviction on the grounds of abuse of the process, and that decision in the Court of Appeal established the parameters of what we call "rendition" in UK law, but it could be lawful here if Parliament so decided. There is nothing in international law which says that transfers between two countries which, provided they meet other standards of human rights and treatment, are unlawful. On the issue of flights, Mr Illsley, your question pre-supposes that there are scores and scores and scores of people being transferred through the UK without proper extradition or rendition. I have sought to answer that.

  Q45  Mr Illsley: Some.

  Mr Straw: When we are moving around the world in military planes and in private planes we are not required by our allies to give a lot of detail about what is happening on those planes or the purpose, because these are normal facilitations of flights and I do not think there is a case for changing that. The Committee can propose it and we can consider it, but I have seen no paper suggesting there is a case for changing it.

  Q46  Richard Younger-Ross: You were very clear in your answer to my colleague, Paul Keetch, in regarding complicity as an offence as much as torture. The US seem to have changed the definition of what is a risk and international law, I understand, says that you shall not transfer someone to a country where there is a substantial ground to believe that there is torture. Can you say whether you support that as the correct definition?

  Mr Straw: If you want to ask the United States government questions, ask them. I am responsible for our practice here. I thought Secretary Rice's statement, however, was very comprehensive and I invite you to read it. It sets out the position. She made it absolutely clear that the prohibition against United States personnel being involved in torture not only applied within the United States but across the rest of the world as well. She was absolutely explicit about this. She provided that clarification when she was in Kiev last Wednesday morning. Our position is the overriding moral position that torture is wrong. Leaving aside any international obligations we are under, I have made that position clear. Secondly, however, there is the Convention Against Torture. We apply it to its letter and its spirit.

  Q47  Richard Younger-Ross: I ask you the question because if next week you had a communication from the US saying that they wished to transfer someone through the UK, at the moment, our ground would be if they are substantial they would not be transferred, but the US definition seems to be that it is more than likely not to occur.

  Mr Straw: The judgment on that particular issue would be based on the way we treat it. When I looked at these cases seven years ago, that was how you judged this. Anybody making a decision, being placed in the position of the Home Secretary or the Foreign Secretary where the UK government is asked for its permission, has to apply himself or herself on the basis of UK law. That of course includes considerations about Article 3 of the European Convention on Human Rights and what is in the jurisprudence of the 1996 Jahal case from the European Court of Human Rights. Whatever position the United States took about it, about whether it was substantial risk, real risk or a higher probability than not, we would apply ourselves on the basis of UK law which is very careful indeed, properly, not to allow for anybody to be transferred where there is a real risk of torture.

  Q48  Richard Younger-Ross: There are countries where we have an agreement now, where we can deport people, where we have an understanding they will not be tortured. Will we assume that the understanding would apply to American transfers to that country or not?

  Mr Straw: These agreements are specific. They concern countries where there has been concern in the past about their treatment of prisoners. It may have been torture; it may have been ill treatment. Under these agreements, we gave specific undertakings in respect of the specific prisoners who would be transferred. Were it to be the case that we were invited to agree to a facilitation of a transfer to a Third country whose human rights record was questionable, the law applies in the same way as it does in respect of a transfer or deportation of a prisoner. If it is our responsibility, it is our responsibility. The fact that there was an MOU in respect of asylum deportees or prisoners who had been subject to a deportation order would have some relevance in the case but it would very much depend on what the MOU said and what undertakings you could gain in respect of that particular transferee. I think it is pretty academic, by the way, but if it were to happen that would be the situation.

  Q49  Andrew Mackinlay: When you were Home Secretary the requests came under the auspices of the Justice Department, I assume, and certainly not the CIA, so I do not think we are necessarily comparing like with like. I do feel that all of us, journalists and politicians, are conflating two things. People who are being transferred on a Gulfstream jet are not necessarily going for torture. There could be torture without travelling on a Gulfstream aeroplane. Richard Younger-Ross earlier asked you about private flights and just a few moments ago you volunteered the fact that we do not know, because that is the international arrangement, who is being moved in private jets. I put it to you that this is the great problem you and we have and maybe even Condoleezza Rice has. If I am an intelligence agency in the United States or whatever, if I transfer people in "private jets" I can do that without presumably much more reference in their administrations. United Kingdom authorities do not know. That is the way I understood your evidence a few moments ago. You were saying, "If it is a private jet, we do not know."

  Mr Straw: What I was saying was that, as a matter of routine when we are travelling, the UK moves its RAF transport aircraft around the world. These are not the subject of detailed scrutiny by the local authorities concerned. Indeed, since I travel on RAF planes, I can confirm that when we are refuelling in Bari in Italy, which we sometimes do, the local authorities do not come on board because maintaining the integrity of the planes is very important. There are military policemen on the planes to ensure that. That practice applies, for example, for all our members of NATO. I think it is part of the arrangements of NATO. That does not mean that there is carte blanche for a private plane hired in by a government that is a member of NATO to undertake activities which require the permission of the domestic government but to avoid that permission. I go back to the answers I gave earlier. The answer I gave to Menzies Campbell could not have been more comprehensive than it was. Coupled with the assurances from Condoleezza Rice, I believe it is extremely improbable that any such flights have taken place through United Kingdom airspace or landing in British airports. If you are asking me to prove a negative, none of us can prove negatives. That is the nature of life. If you are asking me to make assessments of the world in which we live, I have done that.

  Q50  Chairman: We have been using the word "torture" here. It is said that we have a different view in this country about rendition to the United States. Do we have a different definition of torture?

  Mr Straw: No. "Torture" is clearly defined. There is also cruel and unusual punishment and general ill treatment.

  Q51  Chairman: It has been reported that certain activities are permissible in the United States in interrogations which are not permissible in our definitions because the things done by the US are not defined by them as being torture.

  Mr Straw: I think I know what you are talking about. I do not think either would be described as torture. I think it is about unfair treatment, less than torture. It is certainly the case that we pride ourselves in this country in being punctilious in the way in which we treat suspects and rightly so. I can get you a note on this.[3]

  Q52 Chairman: It would be very important for clarification. Can we move on to issues relating to the European Union and other areas? Can you say something about the progress made with regard to the counter-terrorism strategy? What is that likely to include when it is agreed?

  Mr Straw: There was an extraordinary JHA Council on 12 July at which it was agreed to accelerate implementation of the EU action plan for combating terrorism which had been first agreed after the Madrid bombings. At the JHA Council on 1 and 2 September, a new EU counter-terrorism strategy set out common division for counter terrorism work, identified specific priorities, and it is a framework for policy and work for the future. It adopted a common position on the Data Retention Directive which we believe will pass its first reading in the European Parliament tomorrow, a new strategy for combating radicalisation and recruitment, a report on the EU crisis coordination arrangements, principles for protecting critical infrastructure, an evaluation of national counter-terrorism arrangements and a measure to improve exchange of law enforcement information.

  Q53  Chairman: Does that also have implications for the external relations of the European Union or is that separate?

  Mr Straw: It is separate really. A lot of our external relations have implications for the fight against terrorism, of course.

  Q54  Chairman: Was there not discussion also of developing a counter-terrorism strategy with regard to the external relations?

  Mr Straw: At Barcelona we agreed. A very important product of the Barcelona European agreement was the statement on terrorism. For the first time ever, the Arab states and Israel agreed to counter terrorism, full stop. There was none of the usual equivocation that we have seen. Secondly, an action plan was agreed.

  Q55  Chairman: Is that the responsibility of the Commission under its 2006 programme or is it something which is being pursued within the Council of Ministers with Mr Solana?

  Mr Frost: There has been some work done during our presidency and beforehand on the external aspects of JHA which go much wider than just counter-terrorism. For example, the migration papers which come to this European Council. There is an external angle, in a way, to a good deal of justice and home affairs work. As to who is responsible, it depends on the particular bit of business you are talking about, whether it is the Council, the Commission, how the Parliament is involved and so on.

  Q56  Andrew Mackinlay: I understand the European Union has a list of products which require export licences. It has been put to me that this is flawed because it has a catch all phrase which says, "If the things are not listed above, there is a burden on exporters to flag this up with the authorities." It has been put to me that that is wholly unsatisfactory because it puts the burden on people who are exporting and there is disparity within the European Union, partly because of this ambiguity. Is this a big lacuna?

  Mr Straw: Are you talking about dual use products?

  Q57  Andrew Mackinlay: Yes.

  Mr Straw: I am not aware of it being a great lacuna. We have the EU common position on arms control and that sets out a series of common criteria. I think there are eight. We have all signed up to that and we all apply it. There are ways in which the procedure could be improved. At the moment, if say we receive an application for an arms control licence and we refuse it, we are under an obligation to tell our partners we have refused it but we are not under a corresponding obligation to our partners when we agree it. When the debate about the lifting of the China arms embargo was more current, we proposed that there ought to be symmetry here so that there was a much better sharing of information and other improvements in the way the arms control system operates. I am not aware of that.

  Q58  Sir John Stanley: Has your department sought any information from other EU Member States as to the existing legislation in their countries as to the maximum period of days people can be detained on suspicion of terrorism—in other words comparable to the debate we have been having in this country over the 90 days? Have you sought comparative information from other countries?

  Mr Straw: Yes, and I published it to Parliament going on six or seven weeks ago or maybe earlier. Officials both in London and in posts did a great deal of work on this and I published it as a command paper.

  Q59  Sir John Stanley: Have you sought information about any Europol view on that particular point?

  Mr Straw: I have not but it would be a matter for the Home Secretary anyway.

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