Letter to the Chairman of the Committee
from the Secretary of State for Foreign and Commonwealth Affairs,
Foreign and Commonwealth Office
I am looking forward to my appearance before
the Committee on Tuesday. It's an important opportunity, not only
to discuss the work of the FCO in promoting and defending human
rights, as set out in our Annual Report, but also to consider
the particular issues around counter-terrorism, which your own
inquiry is seeking to address. I understand why the Committee
does not want me to take up time with an initial presentation
of the Government's position on Tuesday. This letter therefore
sets out for you and the public some key points of our approach.
I welcome greater public debate about how we
exercise two of the most fundamental responsibilities of Government—to
defend the rights upon which our freedom ultimately depends and
to protect the security and safety of our citizens. As the National
Security Strategy makes clear, we see these as mutually reinforcing.
But that does not mean there are not difficult judgements and
hard choices, and it is better for these to be understood.
Some things cannot be discussed publicly: for
example, cases that are sub judice, and operational matters in
respect of our intelligence and security agencies. But in recent
months there has been a good deal of debate and public interest
in our position on the detention and treatment of terrorism suspects.
In part this has been prompted by the Judicial Review into the
case of Binyam Mohamed as well as by developments in the US and
elsewhere. If this can be channelled into an informed discussion
of the right approach to difficult judgements, then the country
will benefit.
The starting point is that the threat that we
face is real and ongoing. British citizens going about their daily
lives in this country, and abroad, have been subject to murderous
attacks in recent years. So the stakes in counter terrorism work
are high.
Fortunately, this country has a more comprehensive
intelligence capability than almost any other country in the world.
It is an essential part of our ability to defend our interests
and secure our safety. It is vital that we maintain and, where
possible, enhance the operational effectiveness of our Agencies.
They are a unique—and much prized—national asset.
And their staff perform a vital role in defending our country's
national security.
The Government has been absolutely clear that
the UK stands firmly against torture and cruel, inhuman and degrading
treatment or punishment. There is strong cross-party support for
this. It is a fundamental principle guiding our approach and that
of those who work to protect us. That is not just a question of
our obligations under domestic and international law—including
under the Human Rights Act and the UN Convention Against Torture.
It is also a question of our values as a nation.
It is for this reason that this Government,
and the Foreign Office in particular, have over the last twelve
years sought to take a lead on international efforts to eradicate
torture, including through support to international mechanisms
against torture, and capacity building work overseas to foster
a law enforcement environment in which torture is simply not considered
an option.
This is also the approach and ethos set out
in our counter-terrorism strategy, CONTEST. As that strategy makes
clear, our work to reduce the threat of terrorism is based on
a set of core principles and values including respect for human
rights and the rule of law. The Government has been absolutely
clear that the UK abhors torture and that is an inviolable principle
underpinning our approach.
When detainees are in our custody, we can be
sure of how they are treated, and ensure we meet our obligations
and standards. When they are not, we cannot have the same degree
of assurance. Yet we cannot act in isolation in order to protect
British citizens. UK terror networks nearly always have overseas
links which must be investigated if attacks in the UK are to be
stopped. We therefore need to work in cooperation with partners
all over the world. Some other countries have different legal
obligations—and different standards—to our own in
the way they detain people and treat those they have detained.
That cannot stop us from working with them, where we can, in order
to protect this country's national security, but it does mean
we have to work hard to ensure we do not cooperate or collude
in torture, and to seek to reduce and eradicate it.
In enabling the detention of individuals who
pose a threat to our national security, in passing questions to
them, or participating in interviews of them, we must seek to
minimise the risk that the individual in question is mistreated
by the detaining authority. Enormous effort, within the Agencies
and Armed Forces, goes into carefully assessing the risks in each
case. Ministers consider carefully each case that is put to them.
As the ISC has reported, operations have been blocked on the grounds
that the risk of mistreatment is too high. Equally, it is not
always possible to eradicate the risk of mistreatment. A judgement
needs to be made.
Our guidance to Agency staff (which will be
reviewed by the Intelligence and Security Committee, and is in
the process of being consolidated) makes clear the careful and
considered way we go about making the choices that we face. That
guidance reflects the best thinking and advice that we are able
to provide to those who act in the name of the United Kingdom.
Through this guidance, the Agencies, and the Government more generally,
set parameters for the conduct of their officers. The guidance
is designed to ensure that anyone following it is acting within
the law. In accordance with our obligations under the Convention
Against Torture we keep it under review. The steps outlined by
the Prime Minister on 18 March 2009, including on publication
of this guidance, are part of the process of setting out for the
British public the choices we face and the careful, considered
way we all go about making them.
Accountability is a vital part of our system.
But by definition the work of the Agencies requires a different
set of checks and balances than the work of any other part of
government. The first responsibility is for Ministers and Agency
Heads to uphold our law and our values. The law is available to
provide recourse to those who feel their rights have been abused.
As you know, 12 civil claims are currently in the court system,
including the Binyam Mohammed case. It is right too that the Intelligence
and Security Committee should have an important role. The Committee
is a creation of Parliament, not the Executive, with the avowed
purpose of squaring the circle between secrecy and accountability.
The Committee—and the Intelligence and Interception Commissioners—are
an invaluable part of our constitutional checks and balances.
As the High Court recently said, the ISC "is a very significant
means of democratic accountability". These bodies have the
access to the sensitive intelligence material they need to discharge
their duties fully and effectively. But to ensure operational
effectiveness is also properly protected, the individuals involved
are notified under the Official Secrets Act and their official
reports are published with appropriate redactions, though each
and every redaction is explained and debated in detail with the
reports' authors before publication.
Together with the Investigatory Powers Tribunal,
which investigates complaints by individuals about the Agencies'
conduct towards them, these bodies provide comprehensive oversight
of the Agencies. That is their role. However, I also want to emphasize
that, although there are good reasons for the limits on what we
can say in public on some of these issues, I welcome your Committee's
interest in them. You play an essential role in scrutinizing Government
and stimulating public debate.
I look forward to discussing these issues with
you and other members of the Committee.
Rt Hon David Miliband MP
15 June 2009
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