Examination of Witnesses (Questions 40-59)
RT HON
JACK STRAW
MP, MR TIM
BARROW AND
MR DAVID
FROST
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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