Examination of Witnesses (Questions 60-79)
LORD MALLOCH-BROWN
KCMG, SUSAN HYLAND
AND STUART
ADAM
7 MAY 2008
Q60 Sandra Osborne: Do you not think
that Amnesty and Human Rights Watch have a case now in calling
for a public inquiry, given the public concern about the issue
and that those two cases emerged, even though certain of the Committee
had previously had assurances that it was not happening?
Lord Malloch-Brown: Obviously,
from the Foreign Secretary downwards, and the Prime Minister as
well, we were all pretty shocked that those assurances, given
in good faith to the Committee and to the House, had proven inaccurate.
That is why, in the Foreign Secretary's conversations with Condi
Rice, we secured a commitment that we would 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 would ask them to give us an assurance
that there was not any such activity around any of those flights.
I think we should wait for the outcome of that. We have made it
clear that we would publish both the list of flights we submitted
and the responses that we got. We should wait until that is over
to see what, if any, steps are necessary after that.
Q61 Chairman: Has that list been
sent yet?
Lord Malloch-Brown: About to be.
Shortly.
Chairman: Okay. Well, we will no doubt
pursue that in the near future. Thank you very much.
Lord Malloch-Brown: I am sure
you will.
Q62 Sir John Stanley: Minister, you
will have read, as we have read, that water-boarding involves
the pinioning of a detainee to a board, so that they are incapable
of movement, then filling up the detainee's lungs with water,
so that they are terrorised into revealing information under imminent
fear of death by drowning. You will also know that it is the American
Government's view that this is not a form of torture. Indeed,
President Bush has made specific provision to be able to authorise
water-boarding, should it become necessary. The British Government
rightly regard this is as a form of torture. Could you tell us
what steps the British Government are taking to persuade the American
Government that water-boarding is indeed a form of torture, that
it should not be engaged in by any civilised country and that
the information so obtained, under such extreme duress, may well
not be very reliable in any event?
Lord Malloch-Brown: First, we
have made it clear in the House of Commons and in all appropriate
contacts with allies that in our view water-boarding is torture—period.
There is no ambiguity about that. We are very clear, just as we
have also been very clear that Guantanamo Bay should be closed.
Our position on this is right, and we have conveyed that to the
US. Certainly in any UK court proceedings, any information found
out by torture would be utterly dismissed, out of hand, and found
not admissible. Our position is clear. Obviously, it is for the
US to arrive at its own decisions having heard the view of ourselves
and other allies.
Q63 Sir John Stanley: Minister, are
you aware of any other interrogation techniques, apart from water-boarding,
currently sanctioned by the US authorities that we would regard
as torture?
Lord Malloch-Brown: Can I have
any help?
Susan Hyland: We are aware of
the variety of techniques that have been discussed in the US,
and have stated publicly our view on water-boarding.
Lord Malloch-Brown: I am not aware
of other methods being used, but I know that there are active
congressional efforts in the US still to subpoena various officials
to get more details of what indeed is current US Government practice.
But I am only aware of the speculation in the media.
Q64 Sir John Stanley: I was not clear
from your official's answer whether she was giving me a yes, or
a no. I should be grateful, Minister, if you could write to the
Committee with an answer to that question and if you could give
us details of any other interrogation techniques known to the
British Government that we would regard as torture and which are
currently sanctioned by the US.
Lord Malloch-Brown: I am happy
to do so.[1]
Q65 Chairman: Can I move to another
country where there are strong allegations that torture is practised.
It is not just a question of definitions, but there is no ambiguity.
The evidence that we have received from Human Rights Watch criticises
the Government's report and states that it "remains notably
silent on the hundreds of disappearances of terrorism suspects
in Pakistan" and suggests that the "UK has been complicit
in the illegal detention, forcible transfer to the UK and ...
torture of some terrorism suspects".
Can you give us your assessment of the role
of the Pakistan Inter-Service Intelligence agency, and assure
me that it does not use torture in its interrogation methods?
Lord Malloch-Brown: In the case
of Pakistan, we made it absolutely clear at every level of government,
both the previous Government and this one, that we view torture
as an absolutely abhorrent and inappropriate technique for extracting
information. Obviously, we pressed extremely hard for return to
civilian, democratic government to the extent that that strengthens
but, as for individuals, we have looked into allegations made
in the report and, behind the issue of hundreds, those of six
nationals—if I am right—were specifically raised.
We have looked into those cases and, of them,
two were joint British-Pakistan citizens who we gained consular
access to because we were concerned about their situation. They
made no complaints of ill treatment when we met them, until after
their release. A third individual was a UK national who complained
similarly only after his release of his treatment in detention.
We are vigilant when cases are brought to our attention, and we
are concerned to use our consular access to ensure that there
is no torture. Our position is that we do not know of any cases
of torture.
Q66 Chairman: Can I just clarify
matters? You said six individuals. I am not sure whether it was
six or five, but how many of those individuals have we sought
consular access to?
Lord Malloch-Brown: As for the
five or six, I do not want to mislead you on numbers. We got access
to three. One of them, Siddiqui, because he was a British citizen,
we saw twice. It was only after his release that he claimed to
have been mistreated. We then raised those allegations with the
Pakistani authorities.
Q67 Chairman: Why did you not get
access to all of them?
Lord Malloch-Brown: Because of
the other five cases, all were joint Pakistan-UK citizens. In
such cases the bar for demanding access is higher, in that we
need to be convinced—as they are after all under their own
domestic jurisdiction—that indeed there is a reasonable
concern. So we got access to two. Let me also be clear that—
Q68 Chairman: Sorry, is it two or
three?
Lord Malloch-Brown: We got access
to one UK national and two Pakistan-UK joint nationals.
Chairman: So in total three?
Lord Malloch-Brown: In total three.
Q69 Chairman: That was consular access?
Lord Malloch-Brown: Yes.
Q70 Chairman: How many of those others
were seen by other British officials, other than on the basis
of consular access?
Lord Malloch-Brown: The other
three are unnamed, so we are not sure who they are.
Q71 Chairman: Perhaps we can have
a note on that, to clarify, because there have been lots of stories,
including the report in The Guardian. I know that there
are some legal issues here and I do not want to go further than
that at the moment, but I would be grateful if we could have some
clarification in writing, and we can perhaps pursue it afterwards.
On the more general point, your report discusses the dilemma that
you face, as to whether evidence that may have been obtained through
torture should be relied on, and how it could be used. Is that
a particular problem with regard to information obtained from
Pakistan?
Lord Malloch-Brown: I do not think
that it is a particular problem in the sense that wherever evidence
was obtained, if we felt that it had been obtained through torture
we would not use it. We are as conscious as anyone of the allegations,
and 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.[2]
Q72 Chairman: Is that because you
think that the ISI does not practise torture?
Lord Malloch-Brown: 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.
Q73 Chairman: But it is clear, is
it not, that for several years the ISI was involved in practices
that would be regarded as torture?
Lord Malloch-Brown: I do not know
how much is clear about Pakistan, but I think that it would be
fair to say that we have certainly been extremely concerned about
ISI behaviours for many years.
Q74 Chairman: Are you not prepared
to go further and say that there is evidence that the ISI has
used torture?
Lord Malloch-Brown: I do not know.
Am I prepared to go further? This answer is not really going to
help, but Pakistan has ratified the UN convention against torture—
Chairman: I am asking about their practice.
Lord Malloch-Brown: I know. All
I can say is that 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.
Chairman: Okay. I will leave it there
for now.
Q75 Mr. Horam: On diplomatic assurances,
we have this memorandum of understanding between the UK Government
and various countries, including Libya and Jordan, about people
we wish to deport to them not being tortured in any way, yet the
Government have now lost a couple of high-profile cases in the
Court of Appeal over deportations of suspected terrorists. Does
that not mean that the diplomatic assurances are worthless? What
are the Government going to do about the situation they find themselves
in?
Lord Malloch-Brown: 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.
Q76 Mr. Horam: Right. What happened
in those cases could be repeated in further cases. You might come
up against exactly the same decisions by the Court of Appeal,
because presumably the circumstances will be pretty similar in
the cases that you bring forward. Given that, do you not think
that it would be better simply to accept that this is an absolute
bar on the possible return of deportees to a country where torture
is practised?
Lord Malloch-Brown: 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.
Q77 Mr. Horam: Does it not mean that
you should look more closely at the memoranda and understand what
actually happens in those countries?
Lord Malloch-Brown: Again, the
courts have accepted the process as legitimate. They were careful
to say that it was the particular conditions, in Libya in one
case, and Jordan in the other, relevant to the individuals, which
determined their decision.
Q78 Mr. Horam: Have you won any cases
at the Court of Appeal?
Lord Malloch-Brown: These were
the first cases to reach the Court of Appeal, so the answer is
no.[3]
Q79 Mr. Horam: So far, you have lost
every case?
Lord Malloch-Brown: We have lost
the two cases that we have had so far.
1 Ev 65 Back
2
Ev 65 Back
3
Note by Witness: I said that the Jordan and Libya cases
were the first to reach the Court of Appeal. Some Algerian cases
have also reached the Court of Appeal so this is incorrect. Back
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