House of Commons - Human Rights Annual Report 2008

Human Rights Annual Report 2008 - Foreign Affairs Committee Contents

3 Allegations of UK complicity in torture

The Government's policy towards torture

47. The UK Government has repeatedly asserted its opposition to the use of torture. In its response to our last annual report on human rights, the FCO stated that "we unreservedly condemn the use of torture and our clear policy is not to participate in, solicit, encourage, or condone the use of torture or inhuman or degrading treatment for any purpose".[83] Giving oral evidence to us in June 2009, the Foreign Secretary stated that:

We abhor torture; we will not co-operate or collude with it; and, in line with our international commitments, we are honour-bound not just to avoid wrongdoing ourselves but to try to reduce, and if possible eliminate, the use of cruel or inhuman treatment or torture around the world.[84]

Allegations of UK complicity in torture

48. Notwithstanding these assertions by the Government, a number of allegations have been made that the UK has been complicit in torture perpetrated overseas. In late 2004, Craig Murray, formerly HM Ambassador to Uzbekistan, alleged that the UK was receiving information obtained under torture.[85] Mr Murray recently told the Joint Committee on Human Rights (JCHR) that in early March 2003, at a meeting in London, "I was told that it was now policy to accept intelligence that may have been obtained from torture [.] I was very surprised. I was told directly that that had been agreed, that it had the authority of the secretary of state and had come from Jack Straw." Mr Murray alleged that the Government's position creates a "market for torture".[86]

49. A number of allegations have been made in relation to individuals and their treatment in Pakistan, Egypt and elsewhere, some of which are the subject of active legal proceedings in the UK and are therefore subject to the House's sub judice resolution. Among these allegations are those made in the high-profile case of Binyam Mohamed, which has been referred by the Attorney-General to the Metropolitan Police and in which there are ongoing legal proceedings. In addition, a group of former Guantánamo detainees is taking legal action against the Government and named members of the security service, and allegations in relation to a number of individuals were collated in a dossier handed to the Metropolitan Police by Cageprisoner, a British monitoring group.

50. On 28 March 2009, the Daily Telegraph alleged that the UK security services had identified at least 15 cases of possible complicity by British officials in the torture of UK and foreign nationals.[87] We wrote to the Foreign Secretary, asking him to respond to the allegations in the article, and to tell us when Ministers first became of these cases. He replied that:

Much of the information outlined in the article is contained in the Intelligence and Security Committee's (ISC) 2005 report into the handling of detainees by UK intelligence personnel in Afghanistan, Guantánamo Bay and Iraq. […] Beyond the information contained in the 2005 report, it is not clear from the article to which specific cases it may be referring. […] More generally, it would [be] inappropriate to enter into speculation or commentary on the work of the Attorney General or the police[88]

He set out the Government's general approach to such allegations:

the Government takes all allegations of mistreatment very seriously, and investigates them as appropriate. If any cases of potential criminal wrongdoing come to light, the Government will refer them to the Attorney General to consider whether there is a basis for inviting the police to conduct a criminal investigation. In addition, individuals who believe their human rights have been infringed as a result of actions carried out by or on behalf of any of the intelligence Agencies can of course take their cases to the Investigatory Powers Tribunal.[89]

Mr Miliband emphasised that "if a British official is present while mistreatment is taking place, there are very clear rules about what he or she should do to report it and pull up whoever is doing it".[90]

51. The question has been raised of the extent to which Ministers would have been aware if officials were complicit in torture. On 31 May 2009, the Guardian reported comments by Sir Richard Dearlove, formerly head of the Secret Intelligence Service, who when asked whether Ministers would have known about alleged complicity in torture, stated that "the intelligence community was 'sometimes asked to act in difficult circumstances. When it does, it asks for legal opinion and ministerial approval … It's about political cover.'"[91] The Foreign Secretary assured us that "of course, all the activities of British agents, or British officials, are subject to an approval process that involves Ministers.[92]

PAKISTAN

52. We focussed in our human rights Report last year on allegations of complicity by UK officials in torture by the Pakistani Inter-Services Intelligence (ISI) Agency.[93] Tom Porteous of Human Rights Watch told us then that: "the circumstances seem to amount to complicity and collusion in the mistreatment".[94] Lord Malloch-Brown denied that the Government had "outsourced" torture, but did express some concerns about the practices of the ISI,[95] which the FCO reiterated in their response to our Report.[96]

53. Allegations relating to Pakistan continue to appear in the press,[97] and both Human Rights Watch and Amnesty International told us that they continue to be concerned by the practices of the ISI and the nature of UK involvement with the Agency. Benjamin Ward claimed that:

The UK relies on the Inter-Services Intelligence agency in Pakistan, which is well known for its use of torture in its counter-terrorism operations. Our research indicates that British Government agents put questions to detainees in ISI custody and visited detainees, who had obviously been tortured, without halting co-operation in those cases. We made that evidence available to the Joint Committee on Human Rights, and we also included a link to it in our submission to this Committee.

It is simply not credible that UK Government officials visiting detainees in ISI custody could be unaware of the torture and abuse that they were subject to. We take the view that asking the Pakistani security services to interrogate a detainee suspected of terrorism, without being present to ensure the person is not mistreated, or conditioning co-operation on an end to these practices, is essentially a request to use torture to obtain information.[98]

Human Rights Watch have discussed these issues in similar terms in evidence submitted to the JCHR.[99] Brad Adams suggested that that whilst the Government has denied actively outsourcing torture, the question of "passive outsourcing" is open and could amount to a degree of complicity that would not comply with the UK's legal obligations (which we discuss in paragraphs 80 to 83 below).[100] Ali Hasan of Human Rights Watch further alleged that former members of the British security services had told him that elements within those services "are deeply uncomfortable with being party to this kind of activity".[101] On 20 March 2009 the Guardian reported that the FCO have not received any response from Pakistan in relation to allegations of torture and had not pursued the matter since 2006.[102]

54. We conclude that the practices of the Pakistani Inter-Services Intelligence (ISI) Agency continue to give cause for great concern, in the light of the allegations we have received that the Agency subjects detainees to mistreatment and torture. We further conclude that while the UK must, by necessity, maintain its relationship with Pakistani intelligence, we are very concerned by allegations that the nature of the relationship UK officials have with the ISI may have led them to be complicit in torture. We recommend that, in its response to this Report, the Government supplies us with details of the investigations it has carried out into the specific allegations of UK complicity in torture in Pakistan brought to public attention by Reprieve and Human Rights Watch, and the grounds it has for supposing those allegations to be baseless. We further recommend that the Government make an explicit statement that in future co-operation with the Pakistani authorities, UK officials should in no circumstances be uncritical of, or complicit in, abuses of human rights. We recommend that, in its response to this Report, the Government confirms that it is its policy, in respect of every case where allegations of torture in Pakistan are drawn to its attention, for such allegations to be passed to the Pakistani authorities and every available step taken to ensure that they are investigated and responded to fully.

CONSULAR ACCESS TO BRITISH NATIONALS IN PAKISTAN

55. In last year's Report we commented on the provision of consular advice to British nationals detained in Pakistan, some of whom had claimed that they were mistreated.[103] The FCO's response to our Report noted that:

The Government is currently aware of eight cases of British or dual British/Pakistani nationals having been detained on suspicion of terrorist offences in Pakistan since 2000 (and took steps to amend an earlier Parliamentary answer on this question as soon as its inaccuracy came to light). […] Consular officials were aware of six of the eight individuals at the time of their detention. Consular access was sought and given for both UK mono-nationals. In one case our request was initially denied, but subsequently access was given before deportation. Consular access was also sought, in two of the six dual national cases. In one of these cases access was not granted before the individual was released. The other individual remains in Pakistani custody and we continue to press for consular access.

The Government refused to comment on whether officials met any of the individuals on a non-consular basis. It confirmed that it is government policy to seek consular access in the case of mono-national British citizens, but not in the case of "dual nationals in their country of other nationality" unless "we consider that there is a special humanitarian reason to do so."[104] Giving oral evidence to us in June 2009, the Foreign Secretary confirmed that this remained the position, but he added that "in the future, we will establish the same standard for dual nationals as for mono nationals". [105] However, Mr Miliband could not confirm that British intelligence would see it as their duty to advise a British national detained abroad that they have the right to consular advice before any interview by a foreign intelligence service.[106]

56. On 20 March 2009 the Guardian reported that in Pakistan the FCO:

intends to press for an agreement . . . which commits both parties to respond constructively within a certain number of days to requests for access to their own country's nationals who are being held by the other country's authorities, and to allegations of mistreatment.[107]

57. We conclude that the Government's intention to establish the same standards for dual and mono British nationals in relation to consular access is to be welcomed. We recommend that this change should be brought into effect as soon as possible, and that in its response to this Report the Government sets out a timetable for this to be achieved. We further recommend that all British nationals should be offered consular advice as soon as the Government is aware of their detention, and certainly before they are interrogated by any foreign intelligence service.

Oversight of the intelligence services

58. In his written submission Peter Gill, Professor of Intelligence Studies at Salford University, raised questions about the oversight of intelligence and security matters. He stated that:

poorly co-ordinated oversight of security and intelligence networks is conducted by a combination of governmental, inter-governmental (e.g. Council of Europe), and civil society actors. In the absence of some supranational governing authority this combination will continue but serious thought needs to be given as to how this might be improved. For example, national authorities (governmental and parliamentary) should augment what is currently a highly informal network of interested actors with some serious investigative and administrative resources that could, say, establish relevant codes of conduct and mechanisms for monitoring.[108]

59. In a letter to us the Foreign Secretary described the current system for oversight of the intelligence services which consists of three strands: the Intelligence and Security Committee (ISC), the Intelligence and Interception Commissioners and the Investigatory Powers Tribunal.[109] On 18 March 2009 the Prime Minister announced an annual review of compliance by the Intelligence Services Commissioner, a request to the ISC to consider developments on detention and rendition, and a commitment to refer "cases of potential criminal wrongdoing" to the Attorney-General.[110] In a subsequent letter to Mr Brown, the JCHR sought a commitment that the Commissioner's report would be published, and requested to know whether the report would look at cases currently causing concern and whether it will address systemic issues and policy as well as individual cases.[111] The JCHR has not yet published any response from the Prime Minister.

THE INTELLIGENCE AND SECURITY COMMITTEE

60. The ISC was created by the Intelligence Services Act 1994 and exercises scrutiny of the Security Service, Secret Intelligence Service and the Government Communications Headquarters (GCHQ). Whilst its members are parliamentarians, they appointed by the Prime Minister and the Committee reports directly to the Prime Minister.[112] On a number of occasions we have affirmed our view that the ISC is therefore not a Committee of Parliament.[113]

61. In July 2008, the House amended its Standing Orders, in response to a proposal from the Government, to provide that "The Committee of Selection may propose that certain Members be recommended to the Prime Minister for appointment to the Intelligence and Security Committee", and that such a proposal may be put to the House for its approval.[114] Nonetheless, the ISC remains a body set up under statute rather than by the House; its members are still appointed by the Prime Minister, who is not obliged to accept nominations put forward by the Committee of Selection, or to confine himself to them in his choice of members, and the ISC still reports to the Prime Minister rather than the House.

62. The Foreign Secretary asserted that the ISC "should have an important role"[115] and that "the way it is set up squares the circle between accountability and secrecy. […] As the High Court recently said, the ISC 'is a very significant means of democratic accountability'."[116] Kate Allen disagreed with this assessment:

From the perspective of Amnesty International, the Intelligence and Security Committee is appointed by the Prime Minister, reports to the Prime Minister, and the Prime Minister decides what the rest of us see. That is not an investigation that Amnesty International could have confidence in.[117]

Both Clive Stafford Smith and Kate Allen stressed the importance of independence. Mr Stafford Smith told us that "you need political accountability in terms of having politicians involved, but there must also be other people who have absolutely no concerns about their own situation, for example. We want independent people,"[118] whilst Ms Allen stated

There needs to be openness, and information should not be declared as confidential or not, by those releasing it. We need an independent judicial aspect to this, or we will never be in the position in which people are held accountable; there will always be secrecy around these issues. [119]

63. We conclude that, notwithstanding the recent changes to House of Commons standing orders, the Intelligence and Security Committee (ISC) remains a creature of the Government, not a committee of Parliament, and that consequently there continues to be a deficit in the parliamentary scrutiny of intelligence and security matters. We reiterate our previous recommendation that the ISC should be reconstituted as a select committee of the House of Commons.

THE INVESTIGATORY POWERS TRIBUNAL

The Investigatory Powers Tribunal (IPT) is the body appointed under statute with the task of investigating alleged misconduct of the security services. Ian Cobain of the Guardian told the JCHR that the IPT is not able to do so effectively. Third-party claims cannot be considered[120] and the IPT itself states that "the Tribunal can not investigate conduct by law enforcement agencies that does not relate to interception, intrusive surveillance, entry onto or interference with property or wireless telegraphy, directed surveillance or use of Covert Human Intelligence Sources."[121] Mr Cobain asserted that the IPT was "hamstrung by its remit and not able to look at patterns in cases.[122] We questioned the Foreign Secretary on the merits of giving the IPT the power to look at third party allegations. He responded that:

It has a very specific purpose, which is to take up individual complaints. I do not think that it should become an alternative. It is better done as it is. The law exists as one means of redress, the IPT exists as another means of address—you represent yourself in the IPT. I think that that is the right way of doing it.[123]

64. We conclude that if the Investigatory Powers Tribunal is to be an effective safeguard it should be able to investigate allegations made by third parties. We recommend that the Government brings forward proposals to make this change.

Guidance to intelligence officers

65. In his 18 March 2009 statement, the Prime Minister announced that the Government would publish its guidance to intelligence officers and service personnel about "the standards that we apply during the detention and interviewing of detainees overseas". This will take place "once it has been consolidated and reviewed" by the ISC.[124] Kate Allen of Amnesty International welcomed the fact that the guidance was to be published, but argued that historical guidance relating to the period to which recent allegations relate should also be published.[125] She added that "beyond the guidance, what is the means of ensuring that that guidance is implemented and what is the scrutiny that goes with that? I think that there has been a lack of absolute rigour around these issues."[126]

66. The Foreign Secretary told us that the Government was unwilling to publish historical guidance "not least because of the legal cases that are under way", and that even at their conclusion "there is then a bridge quite a long way further down the road that might have to be crossed". Mr Miliband acknowledged that "the defence counsel in any of these cases can call for whatever papers they want […] But the defence counsel having the papers is not the same as putting them on the internet".[127] He pointed to "the existing accountability system", stating that "the guidance has already been subject to scrutiny by the Intelligence and Security Committee", and added that "it is difficult to keep saying that nothing we publish must give succour to our enemies—that is obviously true".[128] The Foreign Secretary confirmed the nature of the guidance, that "before 2004, the guidance was informal. Since 2004, it has been formal and has had a comprehensive legal basis."[129]

67. On 18 June 2009, the Guardian published details of what purported to be written guidance to intelligence officers, dating from January 2002. This guidance states that they:

could not "be seen to condone" torture and that they must not "engage in any activity yourself that involves inhumane or degrading treatment of prisoners" […] they were also told they were not under any obligation to intervene to prevent detainees from being mistreated. "Given that they are not within our custody or control, the law does not require you to intervene to prevent this," the policy said. […]The policy […] told them they might consider complaining to US officials about the mistreatment of detainees "if circumstances allow".[130]

We queried with the Foreign Secretary the authenticity of these extracts. In a response dated 3 July 2009, he told us that the extracts were from "instructions sent to Agency staff in Afghanistan in January 2002", which had been made public in the ISC's Report on Detainees in 2005.[131]

68. We conclude that, while we understand the Government's caution about publishing historical guidance to intelligence officers whilst current court cases are in progress, we are not convinced that the release of material that would be available to a court on request is likely to prejudice a case. We therefore recommend that such historical guidance should be placed in the public domain as soon as possible.

INTELLIGENCE SERVICES ACT 1994

69. In its written submission to the inquiry Human Rights Watch argued that

the government should legislate to close the apparent loopholes in section 134 of the Criminal Justice Act 1988 and section 7 of the Intelligence Services Act 1994 which appear to immunize from prosecution British agents who commit torture (and other criminal acts in the case of the ISA) if they were to commit the acts with the authorization of the government. We note that the UN Convention against Torture, which section 134 is intended to implement, contains no such exception to the obligation to prosecute those responsible for torture. Indeed the Convention specifically prohibits reliance on orders from superiors or a public authority as a justification of torture (Article 2).[132]

Clive Stafford Smith told us that the provision under section 7 of the 1994 Act was "certainly not compatible with the UK's obligations under international human rights law" and Kate Allen told us that "I don't think we should be talking about British agents being allowed to torture, or assist in disappearances or extra-judicial executions under section 7 of that legislation."[133]

70. In a joint response to a request by JCHR for further information on how such powers have been exercised, the Foreign and Home Secretaries stated that "the Intelligence Services Commissioner has oversight of warrants and authorisations issued under the Intelligence Services Act 1994", and they pointed out that a report is passed to the Prime Minister each year. They declined to give further detail of how the powers under section seven had been exercised.[134] The Foreign Secretary confirmed to us that he would not be willing to publish details of how section 7 had been used.[135]

71. We conclude that it is essential that there is a robust system of accountability to ensure that the Foreign Secretary uses section 7 of the Intelligence Services Act 1994 in a responsible fashion. We recommend that, in is response to this Report, the Government informs us whether the Intelligence Services Commissioner has ever expressed any concern regarding the use of powers given to the Foreign Secretary under section 7 of the Act.

UK relationship with countries that use torture

72. The UK's intelligence services co-operate with those of other countries as a matter of necessity. The Foreign Secretary told us that

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.[136]

He stressed the importance of "clarity"[137] and described how this policy was understood by partners of the UK:

I think that at both political level and official level, there is very clear—or certainly clearer—understanding than there might have been in the past about the position of Britain. Certainly, there is no question that if ever there was a request for a British agent to do something which involved co-operating with torture, a Minister would ever agree to it. Of course, all the activities of British agents, or British officials, are subject to an approval process that involves Ministers.[138]

The Foreign Secretary stated that "it is not always possible to eradicate the risk of mistreatment", and he emphasised the importance of making a judgment of the risk based on "what we know, what the record is, what the history of different relationships is, as well as the commitments that different countries make to us". He noted that operations have been blocked because the risk of mistreatment was too high. [139]

73. We explored with the Foreign Secretary his attitude to co-operation with governments who mistreat foreign nationals. He told us that

If British nationals are being interrogated according to the appropriate legal standards that we hold, then for us to say, we will have nothing to do with that country because of what they are alleged to do in other domains, would be a very big thing to do.[140]

He denied that this was a double standard because the Government seeks, as its commitments under international law require, "to seek to reduce the amount of mistreatment that happens"[141]

74. We conclude that it is essential that the UK maintains effective intelligence relationships with other countries, and we note that these countries may include ones, such as Pakistan, where there are most serious concerns about human rights abuses of detainees. We further conclude that the Government is correct to base decisions about intelligence co-operation on an assessment of the risk of mistreatment of detainees, and we are heartened to learn that there have been cases in which on this basis co-operation had not taken place. We further conclude that it is essential that the Government emphasise to its foreign counterparts that torture is unacceptable, and that it should work pro-actively to persuade other states to renounce the use of torture against all detainees, whatever their nationality.

The use of intelligence which may have been gained through torture

75. The question of whether the Government should ignore intelligence supplied by states which may use torture, even if that intelligence provides potentially life-saving information, is a deeply controversial one. The Security Service, with the agreement of the Secret Intelligence Service, stated its position to the ISC, as reported in that committee's 2005 report on detainees:

We have however received intelligence of the highest value from detainees, to whom we have not had access and whose location is unknown to us, some of which has led to the frustration of terrorist attacks in the UK or against UK interests.[142]

In its report on rendition, the ISC point out that when intelligence information is shared "the location, circumstances or treatment of a detainee (or even the fact that the source is a detainee) would […] not usually be shared".[143] However, the UN Special Rapporteur, Martin Scheinin, argued that "because of the desire to maintain cooperation from (especially more powerful) foreign agencies, intelligence services have limited incentives to request clarification on how certain information has been obtained."[144] It could be argued that such a policy, if applied with sufficient frequency, could be considered to constitute complicity in torture.

76. Human Rights Watch expressed concern about the language used in the FCO's Report and the CONTEST II strategy in which the Government assert that, whilst not admissible in court, such evidence could not be rejected out of hand:

intelligence material does not arise in a vacuum. It arises in the context of a relationship between the British security services and a foreign intelligence service. […] the relationship between British security services and the security services in countries with poor records on torture, such as Pakistan, carries a risk of British complicity in that torture when the British position is that it can and should use evidence obtained by torture. […] it is difficult to see the assertion of the right to use this material as anything other than an attempt to leave the door open to torture material and to continued uncritical cooperation with security services in countries with poor records on torture.[145]

The UN Special Rapporteur argues that

The continuous engagement and presence of foreign officials has in some instances constituted a form of encouragement or even support. [...] At a minimum, States which know or ought to know that they are receiving intelligence from torture or other inhuman treatment, or arbitrary detention, and are either creating a demand for such information or elevating its operational use to a policy, are complicit in the human rights violations in question. […] States also claim that in practice it is difficult to assess under what conditions the information has been gathered: intelligence is usually not shared as raw intelligence, but as a refined product. While the Special Rapporteur recognizes that this is done as a matter of convenience, he is concerned that this practice also is maintained in order to give intelligence services the possibility of denying responsibility for the use of information that has been obtained in breach of international law.[146]

77. This is not a hypothetical question, even in relation to the US. Historically, the definition of torture used by the US and the UK has differed.[147] The decision by the Obama Administration to release US Justice Department memoranda that authorised the use of "harsh interrogation" has raised the question of how far UK officials would have been aware that information they were provided by the US had been extracted using such techniques. According to the Times, such information included that which prompted former Prime Minister Tony Blair to deploy light tanks at Heathrow in February 2003.[148]

78. The Foreign Secretary reiterated to us the Government's position that it "would never procure intelligence or procure evidence through torture: "We would never say to another intelligence agency, 'Please get us information about X,' and abandon our legal and ethical commitments in respect of how they find that."[149] He also stressed that in deciding whether to use information which might have been garnered as a result of torture, the Government "have referred to the significance of a threat to life, and therefore being part of a balanced judgment about whether or not a piece of intelligence can be used if one has concerns about its provenance."[150] When asked if the use of material gained through torture would mean that the Government was complicit in torture, Clive Stafford Smith told us

Not if they raise complaints about it. If Britain tries to stop it, that is very important. It is a myth to say that if we stand up for our principles, somehow our entire intelligence service will collapse. That is not what happens. [151]

79. We conclude that the use by the UK Government of intelligence information which may serve to avert a potentially catastrophic terrorist attack, but which is supplied by foreign states and which may have been obtained through torture, raises profoundly difficult moral questions. We further conclude that the Government has a duty to use information that comes into its possession, from whatever source and however obtained, if it believes this will avert the loss of life. At the same time, we strongly recommend that the Government should continue to exert as much persuasion and pressure as possible to try to ensure world-wide that torture is not employed as a method of interrogation.

INTERNATIONAL LEGAL OBLIGATIONS IN RELATION TO TORTURE

80. The UK ratified the UN Convention against Torture (UNCAT) in 1988, and is a state party to a range of other relevant treaties, including the International Covenant on Civil and Political Rights, the Geneva Conventions, the Universal Declaration of Human Rights and the 1951 Refugee Convention.[152] We heard claims from some of our witnesses that the UK has not fulfilled its positive duty to prevent torture under its international legal commitments. Clive Stafford Smith of Reprieve explained his understanding of the Government's obligation under the Convention against Torture, "which says that when you have evidence of torture you are legally obliged to investigate it and expose that material. That is pretty simple."[153] Redress stated that:

There is prima facie evidence that the UK has not fulfilled its obligations under the UN Torture Convention in numerous respects, including failure to prevent torture and other prohibited ill-treatment, but also a subsequent failure to properly investigate the allegations.[154]

Both Clive Stafford Smith and Benjamin Ward of Human Rights Watch agreed that the Government's current position did not comply with its obligations under the Convention against Torture, respectively because "it doesn't even help us to identify the people who are being tortured in Bagram right now",[155] and because "the assertion of the right to rely on material from countries that has been obtained under torture is not consistent with the obligation".[156]

81. Human Rights Watch argued that whilst in the case of "A and others vs. The Secretary of State for the Home Department, the House of Lords concluded that reliance on third country material obtained under torture is lawful for intelligence and policing purposes […] in our view, the Law Lords misinterpreted the scope of the obligation to prevent torture under the UN Convention against Torture".[157] The JCHR has examined the advice given by Sir Michael Wood, the FCO's legal adviser, who told that Committee that:

Your record of our meeting with HMA Tashkent recorded that Craig [Murray] had said that his understanding was that it was also an offence of the UN Convention on Torture to receive or possess information under torture. I said that I did not believe that this was the case, but undertook to re-read the Convention. I have done so. There is nothing in the Convention to this effect. The nearest thing is Article 15 which provides [for the inadmissibility in evidence of any statement which is established to have been made as a result of torture]. This does not create any offence.[158]

Responding to this, Professor Philippe Sands QC, Professor of Law at University College London, said that "insofar as the letter seeks to address a very narrow question it is not formally inaccurate but it misses the bigger point […] namely in what circumstances might the receipt of information obtained through torture constitute complicity within the meaning of article 4 of the convention". He went on to interpret a ruling given by Lord Bingham in the case A & Others (House of Lords, 8 December 2005):

a tiny door is open to use in certain limited circumstances material that may have been obtained by torture, but that does not mean that all material used or obtained in all circumstances does not cross the line into complicity. The grey, complex area is: at what point does the systematic receipt of information cross the line into complicity?[159]

82. The Foreign Secretary agreed that there was a responsibility to act "by exposing what is happening, confronting those who are doing it, and seeking to have it changed."[160] However, he could not provide an assessment of whether using information which may have been derived from torture would be a breach of the UK's obligations under the UN convention on torture or the Human Rights Act, stating simply that "We always seek to act within our legal commitments"[161] and "that we are known as a country for the way in which we zealously pursue our commitments, which includes campaigning for changes in the practices of other countries. That is an important part of the balance sheet."[162] The Foreign Secretary later wrote to us clarifying his position:

the UN Convention Against Torture and the European Convention on Human Rights, which is incorporated directly into UK law by the Human Rights Act, do not impose a positive obligation to report on or seek to prevent acts of torture carried out by other states abroad. The UK is, however, very clearly committed to the prevention of torture.[163]

83. We conclude that it is imperative that the UK fulfils its legal obligations in respect of the prevention of torture, including any duty to act positively to prevent it, investigate allegations that it has taken place, and expose it. We further conclude that there is a risk that use of evidence which may have been obtained under torture on a regular basis, especially where it is not clear that protestations about mistreatment have elicited any change in behaviour by foreign intelligence services, could be construed as complicity in such behaviour.

Judicial inquiry

84. There have been widespread calls for a full judicial inquiry into the allegations of UK complicity in torture and rendition. These were reiterated by a number of those who submitted written and oral evidence to this inquiry.[164] The Foreign Secretary told us that he was reluctant to agree to such a demand:

because the constitutional arrangements that we have are designed to preserve secrecy. There have been calls for a public inquiry. Everything that we have been talking about today and the constraints that exist on our work—by definition, intelligence work is secret—are not susceptible to public inquiry. If you want to have intelligence agencies that defend the country and defend the people of the country, then you have to establish mechanisms that hold them accountable that preserve their ability to act secretly. I think that that is very important.[165]

85. We conclude that it is essential to maintain secrecy in relation to intelligence work. We further conclude that allegations presented to us of UK complicity in torture are a matter of concern. However, both owing to the operation of the House's sub judice rule and because we are not in a position to subject these allegations to the necessary forensic scrutiny (involving examination and cross-examination) available to a court of law, we are not in a position to pronounce on the truth or otherwise of these allegations. We further conclude that any decision by the Government on whether to institute an independent judicial inquiry should await the conclusion of the current court cases.

83 Foreign and Commonwealth Office, Response to the Ninth Report of Session 2007-08 by the Foreign Affairs Committee, Annual Report on Human Rights 2007, Cm 7463, para 27 Back

84 Q 92 Back

85 Foreign Affairs Committee, Sixth Report of Session 2004-05, Foreign Policy Aspects of the War against Terrorism, HC 36, paras 88-89 Back

86 Oral evidence taken before the Joint Committee on Human Rights, 28 April 2009, HC (2009-09) 230-ii Q96, 102 Back

87 Torture inquiry reveals 15 new cases, Daily Telegraph, 28 March 2009, page 1 http://www.telegraph.co.uk/news/newstopics/politics/lawandorder/5063053/Torture-inquiry-reveals-15-new-cases.html Back

88 Ev 60 Back

89 Ev 60 Back

90 Q 122 Back

91 British agents would have had ministers' OK for collusion in torture - ex-MI6 chief, The Guardian, 31 May http://www.guardian.co.uk/uk/2009/may/31/british-agents-terror-suspects-torture Back

92 Q 114 Back

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

94 Foreign Affairs Committee, Ninth Report of Session 2007-08, Annual Report on Human Rights 2007, HC 533, Q 40 Back