4 Torture |
47. The Government says that it consistently
and unreservedly condemns torture.
The UK was an early signatory to the 1984 UN Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Unlike China, Russia, the US, India, Pakistan, Japan and the majority
of countries in the MENA
region, the UK has signed the Optional Protocol to the 1984 Convention
(OPCAT), which requires states party to the Protocol to set up
or designate at a domestic level independent bodies to monitor
places of detention, and to allow visits to such places by representatives
of the UN Subcommittee for the Prevention of Torture.
The UK is active in encouraging states to sign both the Convention
and the Optional Protocol.
48. The FCO's policy on torture prevention was
visibly strengthened in two ways during 2011:
- Guidance for FCO staff on reporting
information or concerns about torture and mistreatment overseas
was updated and reissued;
- A Torture Prevention Strategy was published in
October, setting out three aims: that legal frameworks to prevent
and prohibit torture should exist and should be enforced; that
states should have the political will and capacity to prevent
and prohibit torture; and that organisations on the ground should
have the expertise and training to prevent torture.
A checklist of activities which FCO posts might use
in order to meet these goals is set out at the end of the Guidance.
49. Publication of the Strategy for the Prevention
of Torture was generally welcomed in evidence to our inquiry.
Mr Mepham said that the Strategy was "fairly comprehensive
and touches all the right bases",
and Mr Croft described the Strategy and guidance as "very
an organisation which assists survivors of torture in obtaining
redress for their suffering, likewise welcomed the Strategy, although
it proposed that the Strategy should be expanded, to provide clarity
about the right to redress and compensation enshrined under Article
14 of the UN Convention Against Torture:
Each State Party shall ensure in its legal system
that the victim of an act of torture obtain redress and has an
enforceable right to fair and adequate compensation, including
the means for as full rehabilitation as possible.
REDRESS said that it understood that the UK's obligations
under the UN Convention Against Torture included enabling redress
and compensation for victims to apply not just to victims of torture
perpetrated in the UK or by UK agents operating overseas, but
also to those who suffered when the UK was complicit in acts of
torture perpetrated principally by others, and to UK nationals
and others tortured abroad but now present in the UK.
50. We invited the Government to respond on the
extent of application, asking specifically whether the responsibility
under Article 14 was deemed to extend to
- Non-UK nationals or non-UK
residents who had been victims of torture perpetrated in the UK
or by UK agents operating overseas;
- victims of acts of torture perpetrated principally
by non-UK nationals but in which it was established that the UK
was in some way complicit;
- UK nationals tortured abroad.
The Government replied that, in its view, the obligation
under Article 14 was owed to anyone to whom Article 2 of the Convention
applies, which it deems to include "anyone within the borders
of the United Kingdom, as well as any person outside the UK who
is nonetheless considered to fall within territory under UK jurisdiction".
This would indicate a rather narrower application than that suggested
51. Domestic implementation of the Convention
Against Torture (and of the Optional Protocol) is a matter for
the Ministry of Justice, and we note that there is work under
way and discussion at an international level on reparations.
We have not explored this issue in detail and we therefore make
no comment here, except to voice our concern that the Government's
policy on reparations to victims of torture, and on eligibility,
seems as yet imperfectly defined.
52. We strongly welcome the
publication by the FCO of the Strategy for the Prevention of Torture
2011-15. We believe that there is merit in keeping a tight focus
to the Strategy, and we do not support suggestions that its scope
should be widened to cover policy on reparations for victims of
torture, as this needs to be considered on a case by case basis.
Removal and deportation
REMOVAL OF ASYLUM SEEKERS
53. Under Article 3 of the UN Convention Against
Torture, signed by the UK in 1985, no state party to the Convention
"shall expel, return ('refouler') 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."
In 2011, 52,526 people subject to immigration controls (i.e. they
were not EEA nationals) departed the UK either voluntarily or
because they were removed. 8,869 of those (nearly 17%) had sought
asylum or were dependants of asylum-seekers.
A small proportion of departures are as a result of deportation
orders, enforced either following a criminal conviction or when
it is judged that a person's removal from the UK is conducive
to the public good.
54. The Guardian reported on 6
June that a former member of the Tamil Tigers intelligence service
claimed to have been tortured after having been deported from
the UK to Sri Lanka in June 2011. According to The Guardian,
his claims were supported by medical evidence. This is not
an isolated example: Human Rights Watch told us that it had "documented
many cases of torture and ill-treatment (including rape) of failed
asylum-seekers at the hands of security forces".
The FCO's 2011 Human Rights and Democracy report referred to the
open session held by the UN Committee against Torture in November
2011 and to the UN Committee's subsequent report, which noted
allegations of widespread torture, secret detention centres, enforced
disappearances and deaths in detention in Sri Lanka.
We note that concerns about human rights abuses in Sri Lanka have
led the Prime Minister of Canada to indicate that he would not
attend the Commonwealth Heads of Government Meeting in Colombo
in 2013 unless he saw evidence of progress.
55. The Guardian reported that
the Home Office was still "insisting" that it was safe
to return Tamils to Sri Lanka, and it added that several other
Sri Lankans had been forcibly deported in late May. Immigration
statistics show that a total of 481 asylum seekers were removed
or departed voluntarily to Sri Lanka in 2011.
Human Rights Watch told us that the UK High Commission in Colombo
had examined recent allegations of torture and ill-treatment of
failed Tamil asylum-seekers on their return to Sri Lanka and had
concluded that the allegations were untrue.
When we raised the case cited by The Guardian with
Mr Browne and FCO officials, they said that "there is certainly
a substantial amount of maltreatment and torture in Sri Lanka,
but we do not yet have substantiated evidence that the people
whom we have returned
have been maltreated".
However, the FCO could not tell us during the evidence session
whether there had been any attempt to speak to the person cited
by The Guardian;
and when we pursued this in writing, the Government initially
replied that it did not comment on individual cases, that it took
allegations seriously, and that asylum and human rights applications
from Sri Lankans were "carefully considered on their individual
merits in accordance with our international obligations against
the background of the latest available country information".
Subsequent enquiries elicited a statement that a UK Border Agency
representative had indeed spoken to the individual concerned;
but the FCO said that it was unable to provide further details
of the case as they were confidential, and some information was
subject to the Data Protection Act 1998.
56. In addition, the Government failed to give
a direct answer to our request for an assurance that it was content
that its policy on deportation of Sri Lankans was not putting
people at risk of torture.
We find it unsatisfactory
that the Government has not been more forthcoming to Parliament
about its effortsin general and in specific casesto
assess the level of risk to the safety of those who are removed
from the UK.
57. We note that the Home Affairs Committee has
also voiced disquiet about the return of Sri Lankan asylum seekers
to their country of origin and that it raised the matter with
the Chief Executive of the UK Border Agency, Mr Rob Whiteman,
in December last year. He acknowledged concerns about returns
both to the Democratic Republic of Congo and to Sri Lanka, and
he accepted that "we clearly do need to look at the conditions
of what happens when we make returns".
We also note the conclusions of the Independent Chief Inspector
of the UK Border Agency in his Annual Report for 2010-11, in which
he cited evidence that country information supplied by the UK
Border Agency's Country of Origin Information Service had on occasion
been used selectively or otherwise inappropriately.
58. We do not have the information necessary
to judge whether or not recent claims by Sri Lankan Tamils of
torture in Sri Lanka following their deportation from the UK are
accurate or fabricated. However, the routine air of the FCO's
initial responses to our questions has not given us particular
confidence that the FCO is being as energetic as it might in impressing
upon the UK Border Agency the degree of risk. We note the institution
of a dialogue at official level with Human Rights Watch, Freedom
from Torture and the UK Border Agency on the process and information
used to assess cases.
We welcome the new channel
of communication established between FCO officials, non-governmental
organisations and the UK Border Agency to discuss the assessment
of risk to those who are removed from the UK. We encourage the
FCO to be energetic in evaluating reports by non-governmental
organisations and media sources of torture of deportees from the
UK, including in Sri Lanka, and in spelling out the risk to the
UK Border Agency. We also request that the Government clarify
the division between the roles of the FCO and of the UK Border
Agency's Country of Origin Information Service in gathering the
intelligence needed to make accurate assessments of the risk to
deportees upon their return to their country of origin.
DEPORTATION WITH ASSURANCES
59. The Government continues to operate a policy
of deportation with assurances (DWA). The FCO's 2011 Human Rights
and Democracy report describes deportation with assurances as
"an alternative action available to us when our preferred
option of prosecution is not possible for foreign nationals who
threaten our national security". Under DWA arrangements,
the UK is provided with assurances from the receiving country
that the human rights of the deportee will be respected upon their
return, and monitoring arrangements are put in place. The effect
is to enable the UK to deport people to countries where there
are substantial grounds for believing that detainees might otherwise
be subjected to torture, without infringing the terms of Article
3 of the UN Convention on Torture and Other Cruel, Inhuman or
Arrangements are already in place with Jordan, Algeria, Lebanon
and Ethiopia; a further agreement was signed with Morocco in September
2011, although negotiations over the monitoring arrangement were
still in train when the FCO's report was published in April 2012.
The most high-profile case under the DWA regime is that of Abu
Qatada, who the Government believes to be a threat to the UK's
national security and who it seeks to deport to Jordan, where
he faces charges of plotting bomb attacks.
60. Human rights groups remain opposed to the
use of arrangements for deportation with assurances. Amnesty International
said that it did not consider that promises of humane treatment
given by governments that practise torture and cruel, inhuman
or degrading treatment were reliable,
and Human Rights Watch agreed. Mr Mepham told us that a "paper
promise" from such governments "does not really stack
up" and "is not really worth the paper that it is written
Government, for its part, points out that its approach on deportation
with assurances was endorsed by Lord Macdonald in his review of
counter-terrorism powers, and that individuals are able to challenge
deportation in the UK courts.
61. The Government's approach has often been
upheld by the courts. In 2005, the Special Immigration Appeals
Commission (SIAC) ruled against a person who the Home Secretary
wished to deport to Algeria in the interests of national security:
the Commission concluded that the parties to the verbal assurances
were acting in good faith and that it was "not conceivable"
that they had been given "deceitfully" or that the Algerian
Government's attitude would change when the person in question
An appeal against deportation by an Ethiopian terrorist suspect
was likewise dismissed at SIAC in September 2010, and the Court
of Appeal rejected an appeal against that judgment in June 2012.
A ruling by the Court of Appeal that Abu Qatada could not be removed
from the UK because there was a risk that evidence obtained through
torture might be used in a trial in Jordan was overturned in February
2009 by the then House of Lords. Although the European Court of
Human Rights has since ruled that Abu Qatada could not be returned
to Jordan (on the basis that evidence potentially obtained under
torture might be admitted at the claimant's re-trial), it nonetheless
held that the Memorandum of Understanding between the UK and Jordan
underpinning the arrangements for deportation with assurances
would not violate Abu Qatada's rights under Article 3 of the European
Convention on Human Rights.
62. The FCO says that it "will continue
to seek new DWA arrangements in 2012, including considering DWA
cases without an overarching framework arrangement, and conduct
an independent review".
We invited the FCO to clarify the meaning of "without an
overarching framework agreement". Mr Vijay Rangarajan, Director
of Multilateral Policy at the FCO, told us that overarching frameworks
were negotiated when there was a "substantial number of people"
who might need to be deported, and when the country concerned
was willing to conclude an overarching framework. 
When fewer people are concerned, an ad hoc arrangement
without an overarching framework could be sufficient and could
be reached more quickly.
63. If arrangements for deportation with assurances
are to be trusted, then verification of compliance will be essential.
When asked who would do the verification, Mr Rangarajan told us
that it would vary from one to state another, depending on whether
the organs of state could be trusted.
The memoranda of understanding with Jordan, Lebanon and Ethiopia
each refer to an independent monitoring body to be nominated jointly
by the two countries concerned. There is no such reference in
the exchange of letters which underpins the DWA arrangement between
the UK and Algeria.
64. We share the unease held by others with the
practice of deportation with assurances, although we acknowledge
that those threatened with deportation have the right to challenge
a deportation order in the UK courts. However, we believe that
arrangements for monitoring and verification should be strengthened
and made public. We note that Lebanon is currently the only one
of the countries with which the UK has agreed arrangements for
deportation with assurances to have signed the Optional Protocol
to the UN Convention Against Torture (OPCAT), under which states
party undertake to permit regular independent monitoring of places
and conditions of detention. We
conclude that arrangements for deportation with assurances would
command greater confidence if both parties to the agreement were
to have signed the Optional Protocol to the UN Convention Against
Torture (OPCAT) which would signify that the states concerned
permitted regular independent monitoring of places and conditions
of detention. We also recommend that the Government should inform
Parliament of the names of the individuals or bodies responsible
for monitoring the conditions under which those deported are being
held, and the arrangements made for follow-up monitoring.
65. Memoranda of Understanding relating to existing
DWA arrangements are public documents and are available on the
FCO website. We
note the undertaking by the Secretary of State to notify Parliament
and the Committee if and when new DWA arrangements are agreed.
The House was informed of the most recent agreement, concluded
with Morocco, by means of a Written Ministerial Statement on 8
November 2011; and copies of the Memorandum of Understanding were
placed in the Library of the House and on the FCO website. However,
none of the memoranda of understanding concluded so far have been
subject to any Parliamentary procedure. A more stringent process
applies to comparable instruments, such as:
- Statements of Changes to Immigration
Rules, which may be "disapproved" by a resolution of
either House of Parliament;
- Treaties, which are laid before Parliament and
which may, in many cases, be challenged by Parliament.
We also note that Parliament may question a Department's
intention to take on a contingent liability or to make a gift
in excess of £250,000: a Minute is laid before Parliament
and Government approval is withheld for 14 sitting days, during
which a Member may signify objection.
Treasury guidance states that any such indemnity "should
not normally go live until the objection has been answered".
66. We acknowledge the efforts
made by the Government to keep Parliament informed of new arrangements
for deportation with assurances. However, these are matters of
such significance within Parliament that we believe that a greater
degree of accountability is warranted.
that texts of memoranda of understanding between the UK and foreign
states relating to arrangements for deportation with assurances
should be laid before Parliament. We further recommend that such
memoranda of understanding should not come into force before 14
sitting days have elapsed, during which time Members may signify
67. We welcome the forthcoming
independent review of deportation with assurances (DWA) arrangements
announced in the FCO's 2011 Human Rights and Democracy report.
We request that the Government indicate what exactly will be reviewed,
by whom, and to whom the results of the review will be made available.
68. The practice of extraordinary rendition has
been a running concern for this Committee and its predecessors
over the years. Our recent report on British foreign policy and
the 'Arab Spring' included an annex collating the statements made
by Ministers to the Committee on the subject.
69. Our report last year on the FCO's human rights
work in 2010-11 set out the chronology of events since the Prime
Minister's announcement to the House on 6 July 2010 that an independent
inquiry, led by a judge, would "look at whether Britain was
implicated in the improper treatment of detainees, held by other
countries, that may have occurred in the aftermath of 9/11".
Sir Peter Gibson was appointed to lead the inquiry, which became
known as the Detainee Inquiry.
70. When the terms of reference and the protocol
for how the Inquiry would operate were published, on 6 July last
year, there were widespread criticisms of the process by human
rights groups; and on 4 August 2011, lawyers representing Britons
detained in Guantánamo Bay, and 10 NGOs (including Amnesty,
Liberty, Justice and Human Rights Watch) wrote to the Inquiry
saying that they could not co-operate in a process where evidence
would be heard largely in secret, where the Government would decide
what would be published, and the victims would not be able to
question, or even identify, witnesses from MI5, MI6, or other
Rights Watch reiterated that view to us, describing the remit
and powers of the Inquiry team as "seriously deficient".
71. On 12 January this year, the Director of
Public Prosecutions and the Metropolitan Police Service announced
that allegations made in two specific cases, concerning the alleged
rendition to Libya of Abdel Hakim Belhaj and Sami al-Saadi and
the alleged ill-treatment of them in Libya, were so serious that
it was in the public interest for them to be investigated immediately.
Given that investigations may take many months if not years, the
Justice Secretary announced to the House on 18 January 2012 that
the Detainee Inquiry would cease its work. The Justice Secretary
said that "the Government fully intend to hold an independent,
judge-led inquiry, once all police investigations have concluded,
to establish the full facts and draw a line under these issues".
In the meantime, it has been announced that the Detainee Inquiry
team has supplied to the Prime Minister a report on its preparatory
work, and the Government has said that it remains committed to
publishing as much of this 'interim' report as possible.
72. On 27 January this year, the two Libyans
who alleged British involvement in their rendition to Libya in
2004Abdel Hakim Belhaj and Sami al-Saadiinstructed
Leigh Day & Co to serve papers on Sir Mark Allen, a former
MI6 officer who is alleged to have been complicit in the operation.
The papers represent a first step in bringing a civil action for
damages. On 17 April, following publication of an article in the
Sunday Times which quoted sources as alleging that the
Rt Hon Jack Straw MP, when Foreign Secretary, had personally authorised
rendition of the two Libyans, Leigh Day & Co served papers
on Mr Straw. We note that the Intelligence and Security Committee
has suspended an inquiry into the allegations made by Mr Belhaj
and Mr al-Saadi pending police investigations. It plans to resume
its investigations, however, as soon as it is able to do so.
We note that although the issue does not at present fall within
the scope of the House's sub judice resolution (as it is
not currently active in a UK court), the Government has no intention
of entering into any public discussion on the matter while it
is the subject of litigation.
For reasons of both practicality and propriety, therefore, we
have similarly refrained from examining the issue in any detail.
73. The decision to bring the Detainee Inquiry
to a premature end was disappointing but understandable, given
the difficulty of proceeding in parallel with police investigations
and, potentially, court proceedings. However it is not clear to
us why the police investigations should be so protracted. The
long drawn-out nature of police investigations into cases of alleged
rendition has had an unacceptable impact on the work of the Detainee
Inquiry and of this Committee and others. We request that the
Government explain to us why the investigations by the Metropolitan
Police into claims made by Abdel Hakim Belhaj and Sami al-Saadi
are expected to take so long to conclude.
74. The next step should be to try to reach
agreement with interested partiesincluding human rights
groupson a future inquiry format which is trusted by all
concerned. Representatives of Amnesty International and Human
Rights Watch told us that they had not yet had discussions with
the FCO about the future inquiry, although Mr Croft envisaged
that the Government might once again propose a format which fell
short of their requirements.
We recommend that the Government
and human rights organisations should start to explore ways of
finding a mutually acceptable basis on which the successor inquiry
to the Detainee Inquiry can proceed. However, while we value transparency
in principle, we question whether total transparency could be
applied to all proceedings of the successor inquiry without hindering,
rather than assisting, the inquiry team in getting to the truth
of the matter.
75. We make no comment at this
stage on developments in allegations of UK complicity in rendition.
We reiterate, however, that we would be deeply disturbed if assurances
given by Ministers over many years to this Committee's predecessors
that the UK had not been involved in rendition were shown to be
inaccurate. We expect to return to this issue.
84 Human Rights and Democracy: the FCO 2011 Report,
page 49 Back
Middle East and North Africa Back
See http://www2.ohchr.org/english/law/cat-one.htm Back
Human Rights and Democracy: the FCO 2011 Report, page 50 Back
Human Rights and Democracy: the FCO 2011 Report, page 49 Back
FCO Strategy for the Prevention of Torture 2011-15 Back
Q 21 Back
Q 25 Back
HR 07 para 4 Back
Ev 106. The latter category "is determined in light of all
the circumstances of a given case". Back
Qq 91-97 Back
See http://www.homeoffice.gov.uk/publications/science-research-statistics/research-statistics/immigration-asylum-research/immigration-tabs-q1-2012/removals1-q1-2012-tabs Back
See HC Deb 12 July 2012 col 292W Back
Para 29, Ev 76 Back
Human Rights and Democracy: the FCO 2011 Report, page 325 Back
See http://www.bbc.co.uk/sinhala/news/story/2011/09/110912_canada_commonwealth.shtml Back
HC Deb 30 Apr 2012 col. 1085W Back
Para 29, Ev 76 Back
Q 123 Back
Q 124 Back
Ev 106 Back
Further supplementary memorandum from the Foreign and Commonwealth
Office, Ev 108-9 Back
Ev 106 Back
Work of the UK Border Agency (August - December 2011), 21st Report
from the Home Affairs Committee, HC 1722, Session 2010-12, paragraph
Independent Chief Inspector of the UK Border Agency, Annual Report
2010-11, page 12 Back
Further supplementary memorandum from the FCO, Ev 108 Back
See para 53 above Back
Human Rights and Democracy: the 2011 FCO Report, page 87 Back
Para 50, Ev 42 Back
Q 21 and submission from Human Rights Watch, para 9, Ev 72 Back
Human Rights and Democracy: the 2011 FCO Report, page 87 Back
Y v Secretary of State for Home Department, Appeal No: SC/36/2005,
24 August 2006. See also House of Commons Library Standard Note
SN 04151, Deportation of individuals who may face a risk of torture,
The case concerned is XX v Secretary of State for the Home Department
 UKSIAC 61/2007. Back
House of Commons Library Standard Note SN 04151, Deportation of
individuals who may face a risk of torture, http://www.parliament.uk/briefing-papers/SN04151 Back
Human Rights and Democracy: the 2011 FCO Report, page 88 Back
Q 112 Back
Qq 121-122 Back
Ev 106 Back
Government response to the Committee's Eighth Report of Session
2010-12, Cm 8169, response to recommendation 20 Back
If a Statement of Changes to Immigration Rules laid before either
House of Parliament is disapproved by resolution of either House
within 40 sitting days, the Secretary of State "shall, as
soon as may be, make changes in the rules
as appear to
him to be necessary". See section 3(2) of the Immigration
Act 1971. Back
Under section 20 of the Constitutional Reform and Governance Act
2010, a treaty subject to the Act is not to be ratified before
21 sitting days have passed, during which either House of Parliament
may resolve that the treaty should not be ratified. If either
House does agree such a resolution, and if the Government wishes
to proceed with ratification, a Minister must lay before Parliament
a statement indicating why the treaty should be ratified. Back
See Erskine May, 24th edition, pages 134-5 Back
Managing Public Money, HM Treasury, Annex 5.5.26 Back
British foreign policy and the 'Arab Spring', Second Report from
the Foreign Affairs Committee of Session 2012-13, HC 80, Annex
HC Deb, 6 July 2010, col 176 Back
Para 8, Ev 72 Back
HC Deb 18 January 2012, col 752 Back
HC Deb 17 July 2012, col 132WS Back
Intelligence and Security Committee Annual Report 2011-12, Cm
8403, paragraph 143 Back
See Q 193 of oral evidence given by Mr Alistair Burt MP on 18
April 2012, and letter from the Secretary of State to the Committee,
dated 10 May 2012, Ev 126, British foreign policy and the 'Arab
Spring', HC 80, Session 2012-13. See also paragraph 72 of Departmental
Evidence and Response to Select Committees, Cabinet Office, July
Q 48 Back