Select Committee on Foreign Affairs Ninth Report

3  Terrorism

Q 2  Rendition

42. The FCO report notes that the terms 'rendition' and 'extraordinary rendition' have yet to "attain a universally accepted meaning, other than a transfer of an individual between jurisdictions outside normal legal processes". It adds that many commentators understand the term 'extraordinary rendition' to refer to the extra-judicial transfer of persons from one jurisdiction to another "specifically for the purposes of detention and interrogation", giving rise to an increased risk of torture. The Government sets out its policy on extraordinary rendition, stating: "We have not approved and will not approve a policy of facilitating the transfer of individuals through the UK to places where there are substantial grounds to believe they would face a real risk of torture."[63]

43. We have followed the issue of US Government policy and the use of extraordinary rendition closely in recent years, as part of our annual human rights reports, our discontinued series into the Foreign Policy Aspects of the War against Terrorism and as part of our recent report into Overseas Territories. This latter report sets out the Government's repeated acceptance in recent years of US assurances that UK territory had not been used for the purposes of rendition since 1998. We then noted:

    On 21 February 2008, the current Foreign Secretary, Rt Hon David Miliband MP, reported to the House that the US had now informed him, contrary to its previous assurances, that on two occasions in 2002 Diego Garcia had been used for renditions flights. In both cases a US plane "with a single detainee refuelled at the US facility" on the island. Neither detainee was a British national or British resident. One was currently in Guantánamo Bay and the other had been released.[64]

In the human rights report, the FCO expresses "concern and disappointment" that UK territory was used for the purposes of rendition without the permission of the Government.[65] In our report, we deplored the fact that US assurances "have turned out to be false".[66]

44. There has been a question in recent years over the Government's obligations with regard to flights that use UK airspace or land on UK territory on the way to, or back from, a rendition operation but without a detainee on board. Amnesty International has claimed that it has evidence to prove that flights on the "rendition circuit" have used UK airports. We asked Kate Allen for her assessment of the Government's legal obligation with regard to allowing such flights to use UK facilities. She replied:

    Very clear: if the British Government know what the flights are used for, they have legal responsibility to challenge […]We have never said that we have known that people were on those flights, but we have said that we know that those flights either picked somebody up and delivered them and have been returning, or have been involved in that rendition circuit. It is very clear that the UK Government have legal responsibility, because they know what those planes have been involved in.[67]

45. Lord Malloch-Brown told us that the Government was to:

    submit a list of all flights about which there were suspicions - that is, any flights whose details were given to us by Amnesty, Human Rights Watch and others - to the US and […] ask them to give us an assurance that there was not any such activity around any of those flights.[68]

As part of our Overseas Territories inquiry, we asked the Foreign Secretary if this list included flights that may have been on the way to or from a rendition, but without a detainee on board. He told us that the Government's purpose was "to identify whether rendition through UK territory or airspace in fact occurred" and that the Government did "not consider that an empty flight transiting through our territory falls into this category."[69] We asked Lord Malloch-Brown whether it was "more or less okay" for the US to use UK territory if a flight was empty. His reply appeared to differ from the Foreign Secretary, focusing more on practical issues rather than any question of principle:

    I do not think that it is more or less okay, but there is a limit to what we can do effectively to monitor empty planes, whose purposes it is not really reasonable for us to investigate. If an American military flight requests refuelling or access and is empty of any passengers, I am not sure that it is possible for us to demand what it might be doing on its return flight.[70]

We asked the FCO whether it had taken any legal advice with regard to its obligations in these cases. It replied that "legal advice given to the Government is confidential and we are therefore unable to disclose the contents of any such advice".[71] On 3 July 2008, the Foreign Secretary told the House in a written statement that the US had received the list and replied to the FCO, stating that there have been no other US intelligence flights "with a detainee on board" landing in the UK, Overseas Territories or Crown Dependencies since 9/11. We note that this assurance does not address the issue of flights without detainees on board.[72]

46. In its submission, REDRESS argues that the UK is under a "positive duty" to ensure that it has an effective framework in place to prevent extraordinary renditions. It argues that "an overhaul of the current laws and policies on aviation is urgently required". It notes that the former Foreign Secretary, Rt Hon Margaret Beckett MP, has already acknowledged the deficiencies in record keeping which she conceded are "not all that marvellous, frankly", and argues that this may have contributed to failures to detect renditions in the past.[73] Human Rights Watch adds that "the key question […] is not just does the UK approve of renditions to torture. It is whether the UK does anything meaningful to stop such renditions from taking place."[74] REDRESS, Amnesty International, and Human Rights Watch all call in their submissions for the Government to hold a full public inquiry into the use of renditions in UK territory.[75]

47. We conclude that the Government has a moral and legal obligation to ensure that flights that enter UK airspace or land at UK airports are not part of the "rendition circuit", even if they do not have a detainee on board during the time they are in UK territory. We recommend that the Government should immediately raise questions about such flights with the US authorities in order to ascertain the full scale of the rendition problem, and inform the Committee of the replies it receives in its response to this Report.

The US and Torture

48. This is the last of our human rights reports to be published during the course of the George W Bush Presidency in the United States. We and our predecessor Committees have considered various aspects of the Bush Presidency over the past eight years, in particular through the series of reports on Foreign Policy Aspects of the War against Terrorism and our report on Guantánamo Bay. One of the most important issues that we have addressed is that of alleged mistreatment of detainees by the US Government.

49. In 2005, President Bush said that "we do not torture".[76] The FCO report welcomes "US government statements that have made clear its opposition to torture, and the cruel, inhuman and degrading treatment of terrorist suspects".[77] This welcome is one example of the Government's apparent trust in the US on this issue, and its willingness to take these remarks at face value. The FCO has previously relied on US statements to deflect questions from this Committee and others. In its response to our human rights report last year (in which we sought clarification over rendition policy), the Government provided a further very clear example of how it uses the statements of US officials in this way when it said:

    In her statement of 5 September 2006, the US Secretary of State, Condoleezza Rice said, referring to allegations of rendition flights:

      "The United States has respected - and will continue to respect - the sovereignty of other countries. The United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture. The United States does not use the airspace or the airports of any country for the purpose of transporting a detainee to a country where he or she will be tortured. The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the United States seeks assurances that transferred persons will not be tortured."

        In these circumstances, the Government does not consider that seeking a further clarification from the US administration of its policy is necessary.[78]

      50. There is one exception to this general approach, which is the attitude of the British Government to the practice known as "water-boarding", during which a prisoner is bound to a board with feet raised, and cellophane is wrapped round his head. Water is then poured onto his face, which is said to produce a fear of drowning. This leads to a "rapid demand for the suffering to end".[79] The Central Intelligence Agency (CIA) of the US Government has admitted using water-boarding against detainees in recent years. In February 2008, the US Director of National Intelligence Michael McConnell told a Senate intelligence committee that:

        The question is, is waterboarding a legal technique? And everything I know, based on the appropriate authority to make that judgment, it is a legal technique used in a specific set of circumstances. You have to know the circumstances to be able to make the judgment.[80]

      As Andrew Tyrie MP pointed out in a letter to us, on 8 March 2008, "President Bush vetoed a bill that would have outlawed the use of 'waterboarding' and other 'enhanced' interrogation techniques."[81]

      51. David Miliband, the Foreign Secretary, has said: "I consider that water-boarding amounts to torture".[82] Lord Malloch-Brown told us that there is "no ambiguity" about the Government's view.[83] We asked him if he was aware of any other practices carried out by the US Government that the UK would consider torture. An official replied that the Government was aware "of the variety of techniques that have been discussed in the US", but Lord Malloch-Brown said he was not aware of any other methods that would be viewed as torture. He added that Congress is currently considering the matter.[84] Writing to us at a later date, he said: "We have not conducted an exhaustive analysis of current US interrogation techniques but we expect all countries to comply with their international obligations".[85] We note that this expectation does not specifically answer our question.

      52. There appears to be a striking inconsistency in the Government's approach to this matter. As noted above, it has relied on assurances by the US Government that it does not use torture. However, it is evident that, in the case of water-boarding and perhaps other techniques, what the UK considers to be torture is viewed as a legal interrogation technique by the US Administration. With the divergence in definitions, it is difficult to see how the UK can rely on US assurances that it does not torture. As Amnesty International argues, "what the USA considers torture does not match international law".[86] Human Rights Watch adds that "President Bush's statements on torture need to be considered in the light of the memoranda from his legal advisers that re-defined torture so narrowly as to make the prohibition virtually meaningless."[87]

      53. We conclude that the Foreign Secretary's view that water-boarding is an instrument of torture is to be welcomed. However, given the recent practice of water-boarding by the US, there are serious implications arising from the Foreign Secretary's stated position. We conclude that, given the clear differences in definition, the UK can no longer rely on US assurances that it does not use torture, and we recommend that the Government does not rely on such assurances in the future. We also recommend that the Government should immediately carry out an exhaustive analysis of current US interrogation techniques on the basis of such information as is publicly available or which can be supplied by the US. We further recommend that, once its analysis is completed, the Government should inform this Committee and Parliament as to its view on whether there are any other interrogation techniques that may be approved for use by the US Administration which it considers to constitute torture.

      UK Officials and Torture

      54. The FCO report emphasises that "torture is one of the most abhorrent violations of human rights and human dignity, and its use is absolutely prohibited under international law". Accordingly, the Government never uses it for "any purpose", its use is "unreservedly condemned" and the UK seeks "its eradication". However, the report notes comments made by this Committee and others over the ethical dilemma of using intelligence that may have been gained from the use of torture to prevent future terrorist activity. Where "intelligence bears on threats to life", the report argues that it would be "irresponsible to reject it out of hand", however it was obtained.[88]

      55. In April 2008, The Guardian reported a number of very serious allegations relating to torture and the conduct of UK officials in Pakistan. A number of British citizens claim to have been detained and tortured by the Pakistani Inter-Services Intelligence (ISI) agency. Whilst in detention, they claim that they were interrogated by British intelligence officers. Some of these men were later flown back to the UK and have faced trial on terrorism related charges. The newspaper summed up the charge against MI5 as being one of "outsourcing" torture to the ISI.[89]

      56. Human Rights Watch comments on this issue in its submission to our inquiry. It is important to note that this submission was made before The Guardian published its report. The organisation states that the FCO report "remains notably silent on the hundreds of disappearances of terrorism suspects in Pakistan" and suggests that the "UK has itself been complicit in the illegal detention, forcible transfer to the UK and […] torture of some terrorism suspects".[90]

      57. We asked Tom Porteous for more information when he appeared before us. He told us that it was "pretty clear" that the UK and US have been relying "rather heavily" on the ISI for intelligence. For the UK in particular, intelligence was useful for the counter-terrorism effort at home because of the large number of British nationals of Pakistan origin. He argued that the ISI was "one of the most brutal intelligence agencies in the world" and initially behind the Taliban regime in Afghanistan. He said that there was "good evidence", including medical evidence, that a number of the British men had been "brutally treated" over long periods by the ISI. Commenting on the meetings of the British nationals with UK officials, he argued:

        It is incredible that British agents would not be aware of the kind of treatment these men could expect at the hands of the Pakistani intelligence agency. Either way, the circumstances seem to amount to complicity and collusion in the mistreatment of these men.[91]

      58. We took the opportunity to raise this issue with Lord Malloch-Brown. We asked him for his assessment on whether the ISI practices torture. His reply was oblique:

        Let me put it this way, we think that the return of civilian government and hopefully the strengthening of civilian control over the ISI, which we hope will give a lot more transparency to its methods, is an extremely good development in Pakistan.[92]

      Following further questioning, he said he did not know whether he was "prepared" to go further by stating that the ISI was guilty of practicing torture. He said: "we are extremely concerned. We have certainly not run frontly into evidence of torture, but we think that the ISI's methods could do with a lot of opening up and a lot of transparency."[93] Referring to the allegations that have been made, he stated: "we absolutely deny the charge that we have in any way outsourced torture to Inter-Services Intelligence as a way of extracting information, either for court use or for use in counter-terrorism."[94]

      59. Lord Malloch-Brown said that the Government is "aware of six cases of British or dual British/Pakistani nationals having been detained on suspicion of terrorist offences in Pakistan".[95] He told us that the FCO gained consular access to two dual national individuals, and one UK national.[96] Consular access was not sought in all six case as the Pakistani authorities "are under no obligation to inform us of the detention of a dual Pakistani-British national nor to allow consular access".[97] As he argued, the "bar for demanding access" is higher in such cases.[98] However, as The Guardian notes, the FCO "does act on behalf of the more than 200 young people of dual nationality forced into marriage in Pakistan each year. It has five people working full-time on such cases." Ali Dayan Hasan, the South Asia researcher for Human Rights Watch, said: "I find it worrying that the British High Commission has sought refuge behind the dual citizenship clause when it knows that the detainee's life may be in danger and that the detention is illegal under Pakistani, British and international law".[99]

      60. In his letter, Lord Malloch-Brown states that "British officials sought and were granted access to the two mono-British nationals".[100] However, as cited in the previous paragraph, only one mono-British national received consular access. This indicates that access to the other mono-British national was on a non-consular basis, which could mean access by intelligence officials. We know from a written answer to Parliament that consular access was sought in this individual's case.[101] It is interesting to note that other British officials were granted access to this individual, whilst consular officials were not.

      61. Four of the six individuals have alleged to UK officials that they were mistreated by the Pakistani authorities.[102] Lord Malloch-Brown told us that the three individuals that were met on a consular basis only complained of their mistreatment once they were released from Pakistani detention. In the case of one British citizen who complained of mistreatment, Lord Malloch-Brown told us that the Government raised these allegations with the Pakistani authorities.[103] He added that "our position is that we do not know of any cases of torture".[104] We note that a number of the cases relating to particular individuals are sub judice and we are therefore unable to comment on them further at this point.

      62. We conclude that it is extremely important that the veracity of allegations that the Government has "outsourced" interrogation techniques involving the torture of British nationals by Pakistani authorities should be investigated. Irrespective of these allegations, we recommend that the FCO should immediately seek full consular access in all cases where it is aware of mono- or dual-national British citizens being detained by the Pakistani authorities, and in particular by the Inter-Services Intelligence agency. We conclude that it is not acceptable for the Government to use an individual's dual nationality as an excuse to leave him or her vulnerable to the prospect of possible torture.

      63. We recommend that, in its response to this Report, the Government should explicitly state whether UK officials met any of the four dual nationals to discuss non-consular matters and should also state why non-consular access was granted to one UK national, but not consular access. We also recommend that the Government should further tell us whether it was aware of all six individuals at the time of their detention, and whether intelligence or evidence gained by the Pakistani authorities in its interrogation of any of these men led in whole, or in part, to further investigations or charges in the UK. We further recommend that the Government should describe its collaboration with the Inter-Services Intelligence agency, and its human rights concerns about this organisation, in its response to this Report.

      Diplomatic Assurances

      64. The Government has signed Memoranda of Understanding, containing "diplomatic assurances", with states including Jordan, Libya and Lebanon that govern the deportation of foreign national terrorist suspects from the UK to their country of origin. It has also established a more informal arrangement with Algeria. Article 3 of the UN Convention Against Torture states that "no party shall expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture". This is known as the non-refoulement obligation.

      65. As the FCO report notes, the agreements that it has signed with other states aim to put in place arrangements that "provide general assurances of the treatment of individuals upon return," whilst also allowing the Government to seek more specific personal assurances depending on individual circumstances.[105] In our report last year, we said we would "continue to monitor the situation" with regard to the implementation of these assurances.[106]

      66. As we have noted in previous years, these diplomatic assurances have proved controversial. Tom Porteous claimed to us that the Government is "acting with total disregard for the safety of those detainees when it pushes for deportations under diplomatic assurances". Kate Allen provided the central argument against this mechanism:

        [D]iplomatic assurances are not worth the paper they are written on. Those assurances are sought from Governments who routinely use torture, who have signed the UN convention against torture and who, therefore, routinely break international law. It is hugely undermining to the British Government's work against torture around the world that they are, and continue to be, engaged in this attempt to remove people to countries where they might be tortured.[107]

      Manfred Nowak, the UN's special rapporteur on torture, has said that "the plan of the United Kingdom to request diplomatic assurances for the purpose of expelling persons in spite of a risk of torture reflects a tendency in Europe to circumvent" international obligations.[108] It is somewhat bizarre that this year's FCO report includes a large photo of Mr Nowak on the very page on which it discusses diplomatic assurances without noting his opposition to their use.

      67. In April 2008, the Court of Appeal ruled against the Government in two important cases involving diplomatic assurances. One related to the preacher Abu Qatada, who won an appeal against his forcible return to Jordan, where he has been convicted of terrorism-related charges. Lord Justice Buxton, giving the ruling, said that the Special Immigration Appeals Commission (SIAC) had misdirected itself in law because of the issue of evidence obtained by torture in Jordan. In the second ruling, two Libyan men won their appeals against deportation. SIAC had previously found that the diplomatic assurance with Libya did not remove the risk of the men being tortured, and this decision was upheld by the Court of Appeal.[109]

      68. We asked our witnesses what the implications of the rulings were. Kate Allen told us that they tell the Government that it is going "in the wrong direction" and leave it in the "position where they will have to argue for diplomatic assurances country by country, case by case". Tom Porteous argued that the rulings left the Government in an "awkward position". However, he noted that none of the judgements so far "rule that diplomatic assurances cannot work. They have not ruled them out yet, although we would like them to do so as we think that diplomatic assurances cannot work in principle". He added that a recent case in the European Court of Human Rights, Ismoilov v. Russia, provided the "best articulation" as to why diplomatic assurances were not reliable. He said it was "an important judgment and it shows that if any of these cases get to the European Court of Human Rights, the UK will lose."[110]

      69. Lord Malloch-Brown responded to criticism of Government policy:

        Those Court of Appeal cases were obviously setbacks, but they were very case-specific. The assurances were thought not to be adequate in those countries at this time. We still have other cases that are moving ahead, so I do not think that the policy is dead. We do think that the courts have set the bar high, and frankly that is probably a good thing.[111]

          With some of the deportee cases, accepting that individuals who have done-or incited people to do-terrible things here in the UK are on our hands indefinitely is not a reasonable Government policy. There will be cases where we will prevail, but we are a country of laws and courts. The fact that we lose a couple of cases shows the strength of the procedures, rather than invalidating them all.[112]

        He later wrote to us to inform us that the Home Secretary has sought leave direct from the House of Lords to appeal in the case of Abu Qatada. "After careful consideration", a decision was made not to appeal the two Libyan cases, and "deportation action in those cases and in a further ten Libyan cases has been discontinued".[113] Kate Allen argued that, in responding to these cases, it would be better if:

          the British Government stopped pursuing diplomatic assurances, recognised that the ban on torture is an absolute and that there are no exceptions, and ceased going down this route. They would then regain their moral authority in the world in terms of challenging torture wherever it happens.[114]

          70. Both Amnesty International and Human Rights Watch have been vocal in their concern over the Government's overall commitment to the non-refoulement principle set out above. Amnesty claims that the Government was attempting to "balance" the risk of torture and ill-treatment with national security concerns, particularly when it intervened in a number of cases (most notably Saadi v. Italy) before the European Court of Human Rights "in an effort to change the law in this area". The court ruled Italy could not deport Saadi, and "explicitly rejected UK and Italian arguments that the risk of harm faced by the individual should be balanced against any danger posed by the individual".[115] Tom Porteous claimed that:

            the UK has gone to every forum it can possibly to go aggressively to pursue the weakening of the international non-refoulement obligations. It has gone to the European Court of Human Rights, the Council of Europe and the EU, and done so in the knowledge that its actions will undermine the global ban on torture. We feel that that is a serious cause for concern.[116]

          71. We asked the FCO if the Government accepted that there should never be a balancing exercise with national security where there is a risk of torture. In its reply, it stated that "no other considerations can be taken into account" if there are "substantial grounds" for believing an individual may be "in danger of being subjected to torture". It added that whether or not there are "substantial grounds" was a "judgement that has to be made on the basis of the circumstances of the individual case". However, this meaning behind this statement is only illuminated when we consider the Government's approach to the Saadi case. We can demonstrate this by quoting directly from the judgement of the Court:

            [T]he United Kingdom argued that, in cases concerning the threat created by international terrorism, the approach followed by the Court […] had to be altered and clarified. In the first place, the threat presented by the person to be deported must be a factor to be assessed in relation to the possibility and the nature of the potential ill-treatment. That would make it possible to take into consideration all the particular circumstances of each case and weigh the rights secured to the applicant by Article 3 of the Convention [Against Torture] against those secured to all other members of the community by Article 2.

              Secondly, national-security considerations must influence the standard of proof required from the applicant. In other words, if the respondent State adduced evidence that there was a threat to national security, stronger evidence had to be adduced to prove that the applicant would be at risk of ill-treatment in the receiving country. In particular, the individual concerned must prove that it was "more likely than not" that he would be subjected to treatment prohibited by Article 3.[117]

            The last sentence is key. In its letter to us, the Government said "substantial grounds" would be required for believing an individual would be at risk of torture. According to the Government's argument in this instance, it would only need to be shown in the case of certain individuals that it was "more likely than not" that they would be tortured upon their return. As noted above, the Court rejected the Government's argument, saying the commitment to prevent torture had an "absolute nature".

            72. We conclude that, in the case of Saadi v. Italy, the Government clearly attempted to water down its anti-torture commitments. We also conclude that it is disturbing and surprising that such arguments were made in the name of the United Kingdom and we believe this gives cause for serious concern.

            Guantánamo Bay

            73. In September 2006, a number of us became the first members of a committee of a national Parliament outside the United States to visit the detention facilities at Guantánamo Bay. Following this visit, we published a report that said that the international community needed to do more to help the United States in relocating detainees that posed no danger to the public, and in assisting with the closure of the detention facility at Guantánamo Bay.[118]

            74. The FCO report states that it is the Government's position that the circumstances in which detainees are held indefinitely are "unacceptable" and that it firmly believes the detention facility "should close". It welcomes "President Bush's commitment to close the detention facility as soon as practicable".[119] However, Human Rights Watch's submission notes that "in fact, President Bush has now stated that he will not do so, and that he will leave Guantánamo for the next President to deal with".[120] The FCO report notes some outstanding concerns with the US Military Commissions Act 2006 (which aims to bring about the trial of some of the detainees), particularly relating to habeas corpus and the treatment of those acquitted.[121] In what was seen as a coded criticism of the United States, the Foreign Secretary commented in February 2008 that "it's very, very important that we always assert that our system of values is different from those who attacked the US" on 9/11.[122]

            75. The FCO report notes that, in August 2007, the Government decided to request the return of five former British residents who had been granted refugee status, indefinite leave or exceptional leave to remain before their detention. This, argues the report, "was an appropriate way to take action to help expedite the closure of Guantánamo". Three of the five were returned to the UK on 19 December, but two (Shaker Aamer and Binyam Mohamed) remain held at the camp.[123] In June 2008, US military prosecutors announced that they have charged Mr Mohamed with war crimes. Lawyers representing him claim that evidence was obtained through the use of torture in Morocco. If convicted of conspiring to commit terrorism, he could face the death penalty.[124] The Intelligence and Security Committee held an inquiry into Rendition, during which it considered the case of Mr Mohamed. It concluded that there was a "reasonable probability" that intelligence passed on by the UK to the US was used in subsequent "interrogation" and it further concluded that "it is regrettable that assurances regarding proper treatment of detainees were not sought from the Americans in this case."[125]

            76. Tom Porteous told us that Human Rights Watch has documented evidence of people being returned to Russia and Tunisia, and being seriously mistreated in both cases. He also highlighted the number of Uighurs, from Xinjiang province in China, who cannot be returned to their country of origin (in fact, some have been taken in by Albania). He argued that the UK and its EU allies "could play a very helpful role in aiding whoever succeeds President Bush in closing that facility" by taking on those cleared for release but who are unable to be sent back to their country of origin.[126] We raised this with Lord Malloch-Brown, who told us that the Government has "been talking to other European countries about the possibility of taking other non-citizens".[127] Writing to us at a later date, he said such discussions were "sensitive" and that "it would not be appropriate to name specific countries".[128]

            77. We conclude that the European Union can and must do more to help the United States in bringing about the overdue closure of the detention facilities at Guantánamo Bay. We welcome the Government's representations on behalf of the five British residents in Guantanamo Bay. Given its decision to intervene in their cases, we recommend that the Government should express particular concern over the prospective trial of Binyam Mohamed under the Military Commissions Act and lobby strongly against any use of the death penalty if he is found guilty. We recommend that the Government should continue to press for the return of Binyam Mohamed and Shaker Aamer to the UK.

            Private Security Companies

            78. In February 2002, the Government published a Green Paper into regulating private security companies, borne in part from an inquiry by the Foreign Affairs Committee into the conduct of Sandline, a British-based security firm operating in Sierra Leone. Our predecessor Committee published a report later in 2002 considering the Government's Green Paper, and expressed its hope that it would lead "to the establishment of sound legislation, to ensure that the dangerous, embarrassing and wholly unacceptable events that became known as the Sandline affair are never repeated."[129] Our calls for regulation were supported by the Defence Committee. In its 2005 report on Iraq: An Initial Assessment of Post-Conflict Operations, it concluded that the Government should "urgently" bring forward proposals for such regulation.[130]

            79. Six years have now passed since the Government's Green Paper. In the intervening period, the war in Iraq has led to a proliferation of the use of private security firms by the Government and its allies - a report by the campaigning organisation War on Want in October 2006 estimated that there were three British private security guards to every British soldier deployed in Iraq at that time.[131] On 16 October 2007, employees of the American company Blackwater, contracted by the US Government to protect State Department officials, shot and killed at least 17 Iraqi civilians in Baghdad. Both Kate Allen and Tom Porteous expressed strong concern over the lack of regulation or oversight for private security firms, especially in Iraq. Ms Allen said it was "completely unacceptable" that "not one allegation has been heard in a court". Mr Porteous noted that "these companies tend to operate in places of weak governance and conflict where, if they or their employees commit abuses, they can get away with impunity".[132]

            80. According to Kate Allen, 70-85% of private security companies are based in the UK or the US.[133] However, there is still no sign of forthcoming Government legislation to regulate these firms. Answering oral questions in October 2007, the Defence Secretary, Rt Hon Des Browne MP, referred to a review that was carried out by the FCO in 2005 and said it "raised a number of complex issues that officials are considering in detail".[134] We put our concerns to Lord Malloch-Brown who told us:

              [T]he delay has not been acceptable, and we are hoping that on our watch David Miliband and I will solve this persistent irritant. I have to say that I do not think that the delay has been because of any aberrant desire to prevent regulation. It has had more to do with the fact that regulation is quite tricky for an international business where most activities take place offshore. There is concern about how we can develop a regulatory structure that is credible and effective enough without just driving companies, if you like, offshore to register somewhere else.

            He added that the Government was "now in the late stages of trying to get agreement across Whitehall on a way forward on this, so I hope that relief is in sight".[135] However, it is important to note that there was no mention of private security companies in the Draft Legislative Programme for 2008-09 that was presented by the Prime Minister to the House of Commons in May 2008.[136]

            81. Lord Malloch-Brown told us there were a number of options available in regulating private security companies. These are "self-regulation through a trade association, national regulation based on export control and national regulation based on a kind of company licensing system." He also stated his belief that the Government should consider international regulation.[137] Amnesty International argues that a key feature of any legislation should be to enable "private military and security contractors to be brought to justice in the UK for serious crimes committed abroad".[138] In its 2002 report, our predecessor Committee concluded that a voluntary code would be "insufficient" as it would not provide the Government with the means of preventing the activity of disreputable companies.[139]

            82. We conclude that the Minister's commitment to introducing regulation for private security companies is to be welcomed. We further conclude that the delay in introducing regulation has been unacceptable. We are disappointed that there was no mention of legislation on private security companies in the Prime Minister's Draft Legislative Programme 2008-09, and we recommend that the Government should announce its intention to introduce the relevant legislation in the forthcoming Queen's Speech. We further recommend that such legislation should impose strict regulation on private security companies, and ensures that these companies can be prosecuted in British courts for serious human rights abuses committed abroad.

            63   Foreign and Commonwealth Office, Human Rights Annual Report 2007, Cm 7340, March 2008, p 15 Back

            64   Foreign Affairs Committee, Seventh Report of Session 2007-08, Overseas Territories, HC 147-I, para 55 Back

            65   Foreign and Commonwealth Office, Human Rights Annual Report 2007, Cm 7340, March 2008, p 16 Back

            66   Foreign Affairs Committee, Seventh Report of Session 2007-08, Overseas Territories, HC 147-I, para 70 Back

            67   Q 17 Back

            68   Q 60 Back

            69   Foreign Affairs Committee, Seventh Report of Session 2007-08, Overseas Territories, HC 147-II, Ev 346 Back

            70   Q 59 Back

            71   Ev 67 Back

            72   HC Deb, 3 July 2008, col 58WS Back

            73   Ev 99-102 Back

            74   Ev 23 Back

            75   Ev 5 Back

            76   "US does not torture, Bush insists", BBC News Online, 7 November 2005, Back

            77   Foreign and Commonwealth Office, Human Rights Annual Report 2007, Cm 7340, March 2008, pp 12-13 Back

            78   Foreign and Commonwealth Office, Annual Report on Human Rights 2006: Response of the Secretary of State for Foreign and Commonwealth Affairs, Cm 7127, June 2007, p 9 Back

            79   "Defining torture in a new world war", BBC News Online, 8 December 2005, Back

            80   "Hearing of the Senate Select Committee on Intelligence", 5 February 2008, Back

            81   Ev 111 Back

            82   HC Deb, 21 April 2008, col 1726W Back

            83   Q 62 Back

            84   Q 63 Back

            85   Ev 65 Back

            86   Ev 4 Back

            87   Ev 22 Back

            88   Foreign and Commonwealth Office, Human Rights Annual Report 2007, Cm 7340, March 2008, p 12 Back

            89   "MI5 accused of colluding in torture of terrorist suspects", The Guardian, 29 May 2008 Back

            90   Ev 30 Back

            91   Q 40 Back

            92   Q 72 Back

            93   Q 74 Back

            94   Q 71 Back

            95   Ev 65 Back

            96   Q 65 Back

            97   Ev 65 Back

            98   Q 67 Back

            99   "Revealed: torture centre linked to MI5", The Guardian, 12 May 2008 Back

            100   Ev 65 Back

            101   HC Deb, 16 May 2008, col 1815W Back

            102   HC Deb, 4 June 2008, col 1006W Back

            103   Q 66 Back

            104   Q 65 Back

            105   Foreign and Commonwealth Office, Human Rights Annual Report 2007, Cm 7340, March 2008, p 14 Back

            106   Foreign Affairs Committee, Third Report of Session 2006-07, Human Rights Annual Report 2006, HC 269, para 67 Back

            107   Q 19 Back

            108   "Ministers accused of sidestepping torture ban", The Guardian, 2 November 2006 Back

            109   "Preacher Abu Qatada wins appeal", BBC News Online, 9 April 2008, Back

            110   Q 19 Back

            111   Q 75 Back

            112   Q 76 Back

            113   Ev 65 Back

            114   Q 19 Back

            115   Ev 3 Back

            116   Q 19 Back

            117   European Court of Human Rights, Case of Saadi v Italy: Judgement, 28 February 2008, para 122 Back

            118   Foreign Affairs Committee, Second Report of Session 2006-07, Visit to Guantanamo Bay, HC 44, para 116 Back

            119   Foreign and Commonwealth Office, Human Rights Annual Report 2007, Cm 7340, March 2008, p 12 Back

            120   Ev 22 Back

            121   Foreign and Commonwealth Office, Human Rights Annual Report 2007, Cm 7340, March 2008, p 13 Back

            122   "Miliband 'concerned' by Guantanamo trial", The Independent, 13 February 2008 Back

            123   Foreign and Commonwealth Office, Human Rights Annual Report 2007, Cm 7340, March 2008, pp 12-13 Back

            124   "UK man charged at Guantanamo Bay", BBC News Online, 4 June 2008, Back

            125   Intelligence and Security Committee, Rendition, Cm 7171, July 2007, p 34 Back

            126   Q 20 Back

            127   Q 86 Back

            128   Ev 65 Back

            129   Foreign Affairs Committee, Ninth Report of Session 2001-02, Private Military Companies, HC 922, para 2 Back

            130   Defence Committee, Sixth Report of Session 2004-05, Iraq: An Initial Assessment of Post-Conflict Operations, HC 65-I, para 211 Back

            131   "Fears over huge growth in Iraq's unregulated private armies", The Guardian, 31 October 2006 Back

            132   Q 25 Back

            133   Ibid Back

            134   HC Deb, 22 October 2007, col 2 Back

            135   Q 89 Back

            136   HC Deb, 14 May 2008, col 1385 Back

            137   Q 89 Back

            138   Ev 10 Back

            139   Foreign Affairs Committee, Ninth Report of Session 2001-02, Private Military Companies, HC 922, para 137 Back

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