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“threat of the gravity of the kind made by the United States Government that it would reconsider its intelligence sharing relationship”
with the UK. The Foreign Secretary has reiterated that no threat of that kind was made. Is he suggesting that the Court of Appeal has misrepresented the United States position? Most importantly of all in my view, the Prime Minister’s spokesman said yesterday:
“We have not engaged with the new Administration on the detail of this case.”
Is it correct that the Government have had no discussions with the Obama Administration on this issue?
Looking to how matters should now proceed, consistent with the strong and welcome stance of the new US Administration on torture and with our own views in this House, may I finish by pressing the Foreign Secretary on this point? Should not the view of the High Court that
“the requirements of open justice, the rule of law and democratic accountability demonstrate the very considerable public interest in making the redacted paragraphs public”
weigh heavily with all of us, and with our American allies, particularly if the view of the Court—that nothing in the redacted paragraphs could possibly be described as highly sensitive, classified United States intelligence—is correct?
Given the change of Administration in the US two weeks ago, the changes in policy that have resulted and the changes of personnel in the CIA in the past fortnight, would it not be right to put it to the US Administration that they could change their approach to this case without fundamentally breaching the principle of which the Foreign Secretary has rightly spoken? Would not asking them even now to change their position be a way forward that we could all support in the House?
David Miliband: The right hon. Gentleman is right that the House is united in respect of the closure of Guantanamo Bay, action against torture and the rejection of extraordinary rendition. The Government have taken practical steps to put that into practice.
The right hon. Gentleman’s first and seventh questions related to our engagement with the US Administration about what he called “this case”. I want to be absolutely clear: I did indeed raise the case of the remaining Guantanamo detainees with British residency status when I met Secretary Clinton on Tuesday. I confirmed and reiterated to her that we remain determined to secure their release and return. The right hon. Gentleman may have slightly misspoken; the previous Administration had acceded to that request and the current Administration are continuing to commit themselves to the request for release and return. So Mr. Mohamed will indeed be coming back to the United Kingdom, and that raises precisely the questions of security and the arrangements for that that the right hon. Gentleman led into. I assure him that we are going to make sure that the return of Mr. Mohamed—after eight years, as the right hon. Gentleman says—is done in full accordance not just with his rights but with British security considerations.
In respect of the right hon. Gentleman’s quotation about the “arguable case”, I should say that the investigations of the US system are continuing. The system is, of course, very complicated. First of all there are the military commissions, then there are the federal courts and then there is the decision of the Obama Administration to wind up Guantanamo and the system of military commissions. The right thing to say is that those investigations remain at the heart of cases in the US system and of cases being brought in our system. Those investigations continue.
In respect of the allegations of British complicity, those matters, as my right hon. Friend the Home Secretary made clear on 23 October, are now with the Attorney-General, who is consulting the Director of Public Prosecutions.
The right hon. Gentleman’s fourth question was about the representations that we have made in respect of allegations of torture. He cited one particular case from 2002, and before I answer specifically on that I want to go back to make sure that we give him exactly the right answer. However, our representations in respect of torture have always been clear in public and in private. I give him the example of the debate last year about the question of whether water-boarding constituted torture. We were absolutely clear in public and in private that in our view it did constitute torture, and that it was reprehensible on that basis. I can assure him that the British Government have remained fully engaged on that issue.
In respect of the unique intelligence-sharing relationship, that is indeed very important. The Intelligence and Security Committee has commented on the value of that relationship at various points. I think that the word “threat” was used by the Court of Appeal. Given the facts that I described—that the intelligence-sharing relationship is based on confidentiality, that if another country gave away our secrets that could not but have an implication for the way in which we judged the amount of material to share with it, and that the Americans have made it clear in public documents that they would see serious and lasting harm from the disclosure
in our courts of their information—it is clear that the relationship would be affected; but it is the Court that used the word “threat”.
Finally, there is the question of an American decision about what to disclose in public. I emphasise that it must be an American decision. Only they can make a decision about whether sources—their own or others—are compromised by the disclosure, in the same way that only we can make decisions about whether our information, disclosed to the public, would involve the compromise of sources. To that extent, I am not going to join a lobbying campaign against the American Government on this decision. It is a decision that they have to make given their knowledge of the full facts about the sources on which they depend and do not want to compromise. I am clear that our decisions are for us and their decisions are for them.
To that extent, this case hinges not on the content of the redacted paragraphs but on their nature, which is that they are American paragraphs—American evidence—in the same way that our intelligence sources are our property. We have approached the issue on that basis, which is the only basis on which to preserve the confidentiality and trust on which such a relationship depends.
Mr. Edward Davey (Kingston and Surbiton) (LD): I thank the Foreign Secretary for his statement and for the support that he and his Department have given to Binyam Mohamed.
The Foreign Secretary rightly says that his judgment is on the line—whether to take a threat, and it was a threat, of non-co-operation on future intelligence sharing from our closest ally seriously, or whether to allow information on criminal acts of torture to be published. Will he confirm that the Court makes it clear that the publication of the summary of intelligence reports under question would not have created a security risk to the United States—that it would not have revealed the name of any agent, the location of any secret establishment, or the methods of any intelligence gathering? The truth is that the question of the publication of this summary was not about security and intelligence but about whether to cover up torture, and United States interest in avoiding political embarrassment and potential criminal investigations against its security services. So we have the bizarre situation that this is not a threat to our security from terrorists, but a threat to our security posed by our closest ally over an issue relating to democratic accountability and the rule of law.
Have the British Government not just rolled over in the face of a scarcely credible threat from a friend? Have both this Government and President Bush’s Administration not confused intelligence with abuse, security with the rule of law, and secrecy with cover-up? Why did the Foreign Secretary not make it clear to our American friends that this country’s opposition to torture meant that we would have nothing to do with intelligence gathered that way? Is it not our international legal duty not only to refrain from torture but to bring those who torture to justice—that this country’s long-term security is best protected when we uphold human rights and the rule of law, and when it comes to upholding the values that Britain and America are supposed to share, this country will not be bullied into shabby and shady compromise? Was not President Obama right to say in his inauguration speech,
“we reject as false the choice between our safety and our ideals”?
When the Foreign Secretary raised this with Secretary Clinton, did he ask specifically, as the judges’ final sentence says,
“for the United States government to consider changing its position or itself putting that information into the public domain”?
On the question of whether British security services have been complicit in torture, I hope that the investigations of the ISC and the Attorney-General will provide answers. However, in issuing a public interest immunity certificate in this case, the answer of this House must be that the Foreign Secretary has stood in the way of allowing justice to take its course.
David Miliband: These cases are indeed illuminating, not only of the judgment of Ministers but of the judgment of those who would aspire to be Ministers. Although there was a very large lack of questions in the rant by the hon. Gentleman, I will go through his points.
First, the hon. Gentleman has a fundamental confusion between that which is necessary for justice, which is that the defence counsel has full access to all the documents that are necessary for that justice to be achieved, and the interest—which is a perfectly legitimate one to put—in public debate.
David Miliband: The hon. Gentleman shakes his head, but I am sorry—justice is served by the individual in question having his rights to a proper trial, and that is served by his having full access to the 42 documents that are at issue. The 42 documents that are referred to were given to the defence counsel for Binyam Mohamed in significant part as a result of the representations of this Government. That is the way in which Government are served. When the hon. Gentleman talks, as he did in his first few seconds, about a cover-up of torture, he is neglecting the fact, first, that Binyam Mohamed’s lawyers were given that documentation, and secondly, that the Attorney-General is looking in detail at whether there is anything complicit about the United Kingdom’s role in this case.
Secondly, the hon. Gentleman said—it is worth the House looking at this when Hansard is published—that the threat to our national security came not from sources that we debate often in this House, whether terrorism or elsewhere, but from our closest ally, which the Intelligence and Security Committee has said is critical to saving British lives because of the intelligence that it provides. When he has had a chance to look at his remarks, he will realise that one cannot on one hand quote President Obama’s inaugural speech, and deny on the other hand what his National Security Council says. I am happy to stick by what President Obama said. The National Security Council, which sits in the White House, speaks for the US Government—
Mr. David Heath (Somerton and Frome) (LD): You have not asked them.
David Miliband: The hon. Gentleman shouts that we have not asked them. They made a public statement last night about this case, and they have been absolutely, resolutely clear about this case.
Finally, the position of the Government in never condoning, co-operating in or authorising torture is absolute, and our fulfilment of our international responsibilities in that respect, moral and legal, is absolute. That is why we never condone, co-operate in or authorise torture, and why any allegations thereto are taken with the utmost seriousness and investigated by the highest legal authorities in the land.
Madam Deputy Speaker (Sylvia Heal): Order. As many Members are clearly hoping to catch my eye, could I please ask for single questions, not statements, and perhaps concise replies?
Ms Karen Buck (Regent's Park and Kensington, North) (Lab): As my right hon. Friend is aware, Binyam Mohamed was resident in my constituency. I would like to put on record the fact that I am grateful for the very regular and extensive briefings that I have had over the past year from Foreign Office officials. Of course, these allegations are of the gravest kind and warrant legal and parliamentary scrutiny. It is also true that Mr. Mohamed is very frail and very sick. We were led to believe very recently that his release was imminent. What urgent steps is my right hon. Friend taking to ensure that my constituent is released from illegal detention and returned to this country as soon as possible?
David Miliband: We are pursuing his return at the highest level, including in discussions with Secretary Clinton and with the appropriate US authorities. I understand the urgency that my hon. Friend has brought to this case. We share that sense of urgency, and we are working as fast and as hard as we can. It is not only she who has paid tribute to that—the lawyers for Binyam Mohamed have also written to us about the efforts of Foreign Office officials to ensure his return to the UK.
Mr. Edward Garnier (Harborough) (Con): May I assure the Foreign Secretary that I entirely accept the points that he has made about the need to be sensitive with intelligence sharing, for the reasons that he has outlined? None of us is so naive as to think that it would be sensible to do anything but that. However, when he and the Attorney-General have finished investigating allegations of British complicity with unlawful rendition and torture—if that is what he is doing—if there is a case to be answered, will it be answered in public, not subjected to some form of secret process?
David Miliband: The hon. and learned Gentleman speaks with some authority on these matters. The case now before the Attorney-General relates to the allegation of complicity and torture—it is not a case of rendition. The Attorney-General has been brought in on the basis of the representation made by the Home Secretary as soon as the Court issued its judgment in October. I want to get the precise legal processes clear, but I assure him that it will be done according to the law of the land and under the way in which processes are set out to defend the rights of the individual and British justice in this case.
Dr. Kim Howells (Pontypridd) (Lab):
Given that my right hon. Friend informed us that confidentiality in the handling of information between agencies is a cornerstone of all intelligence relationships—especially the one between this country and its most important ally, the United
States—and that, as the judges say, release of the information at issue here would come through not the United Kingdom but the United States, will he confirm that allegations about the complicity of our agencies in this case must be referred to the Investigatory Powers Tribunal, which is the only body with the legal power to investigate fully any allegation of misconduct by the UK agencies? Does he accept that the Intelligence and Security Committee’s continuing investigations into our agencies’ policy in respect of the US rendition programme may be helped if we were given the 42 documents mentioned by the judges? The ISC, my Committee, has not yet seen them, contrary to what the judgment says.
David Miliband: Absolutely. I think that I am right in saying that anyone can make representations to the tribunal, and that remains the case, but the Home Secretary has referred the matter to the Attorney-General, and since last summer, when these documents came to light, the Foreign Office has attempted at every stage of the development of this case to keep the ISC informed in a full and open way, and that is our determination for the future.
David Davis (Haltemprice and Howden) (Con): What the Foreign Secretary has been saying today seems almost entirely inconsistent with what was said by the judges yesterday. He said that the information that they want to reveal is highly classified secret intelligence. They say in terms, in paragraph 68, that it could not possibly be considered as
“highly sensitive classified US intelligence”.
He says in absolute terms that it is covered by secrecy requirements of intelligence sharing—we all understand the basis of that. They reiterate the argument of the special advocates, which says that there can be
“no confidentiality in evidence tending to show the commission of a crime”,
“the redacted paragraphs should be made public”,
“To do otherwise would be to conceal the gist of the evidence of serious wrongdoing by the United States which had been facilitated in part by the United Kingdom Government.”
That is the substance of the argument today.
The question that the Foreign Secretary must answer is this: did he, or did he not, give the judges reason to say no fewer than eight times—not once, but eight times—that there was either a threat or a grave threat of intelligence being withheld either in his public or secret representations? He has reiterated a point today, from paragraph 11 of his own public immunity application, when quoting a letter from John Bellinger, which says in terms that the public disclosure of this information
“could harm existing intelligence information-sharing arrangements between our two Governments.”
Is that, or is that not, a threat, and will he please seek to get it lifted?
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