Foreign Affairs CommitteeSupplementary written evidence from the Foreign and Commonwealth Office
I am writing in response to the Clerk of the Committee’s letter of 22 June to Barbara Pitts, the Foreign and Commonwealth Office’s Select Committee Liaison Officer, following my evidence session with the Committee on the FCO’s 2011 Annual Human Rights Report. I will respond to your questions in the order they were asked in the letter.
1.The Committee asked for which groups of people the UK government deems it has a responsibility to secure redress under the terms of Article 14 of the UN Convention against Torture. In the Government’s view, the obligation under Article 14 is owed to anyone to whom Article 2 of the same convention applies. This includes 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 latter category is determined in light of all the circumstances of a given case.
2.On the Government’s objectives in relation to the European Commission’s review of Regulation (EC) No 1236/2005 concerning trade in items which could be used for torture, we still await notification of the Commission’s proposals for the review. But we look forward to engaging constructively with them on it. Key issues from the UK’s perspective include an assessment of the effectiveness of the Regulation and its implementation across the EU; potential measures to strengthen controls on trade in equipment and material used for capital punishment or torture including a torture end-use control and new controls on brokering and transit of items listed in the annexes to the Regulation; and a review of the content of the annexes themselves. We would also want to ensure that any new controls did not impact unduly on legitimate trade or impose unnecessary administrative burdens.
3.You asked whether any new arrangements for deportation with assurances (DWA) will be laid before Parliament. Memoranda of Understanding (MoUs) relating to the Government’s Deportation with Assurances arrangements are public documents and are all currently available on the FCO website. On 8 November 2011 the Home Secretary issued a Written Ministerial Statement to Parliament confirming that the Foreign Secretary had signed a DWA MoU with Morocco and that copies had been placed in the Library of both Houses. Ministers will similarly notify Parliament of any new DWA arrangements.
4.On whether the FCO is content that the UK Government’s policy on deportation of Sri Lankans is not putting people at risk of torture, the UK has a proud record of offering sanctuary to those who need it, but people who do not have a genuine need for our protection must return to their home country. We only undertake returns to Sri Lanka when we and the courts are satisfied that the individual has no international protection needs. The European Court of Human Rights has ruled that not all Tamil asylum seekers require protection.
5.On whether any Government representative has spoken to the former member of the Tamil Tigers whose allegations of torture were reported in The Guardian, as the Committee is aware, we do not comment on individual cases. We take any allegations seriously and all asylum and human rights applications from Sri Lankan nationals—including those from Tamils—are carefully considered on their individual merits in accordance with our international obligations against the background of the latest available country information.
6.You asked when and how the presumption that human rights abusers would not normally be permitted visas to come to the UK was introduced. The necessary power already exists both in the form of the Home Secretary’s power to exclude a person and in the Immigration Rules. What we have changed is to make it clear that where there is credible, independent and reliable evidence against such an individual, then they will not normally be permitted to enter the United Kingdom. This leaves human rights abusers in no doubt where we stand.
In the specific context of the Olympic Games, a rigorous process has been designed in partnership with LOCOG, the International Olympic Committee (IOC) and International Paralympic Committee (IPC) to consider all applications for Olympic and Paralympic accreditation and to ensure that decisions are in line with UK immigration law and policy.
7.On why Government policy is not to publicise the names of individuals denied entry to the UK on human rights grounds, it has been the policy of successive Governments not to comment on individual cases unless there is a substantial public interest in doing so. As you are aware, we have a general duty of confidentiality which means that it would not normally be appropriate to discuss details of individual immigration cases. It is also unhelpful to the effective operation of this policy to enter in to a public debate about who should and should not be banned from the UK. Such decisions are by their nature emotive but need to be taken on the basis of objective and verifiable evidence available to Ministers. Disclosing the details of those who are excluded from the UK can also have negative consequences, including for UK interests such as the safety of British nationals overseas and foreign policy objectives.
8.The Committee asked for further information on the level of access that the ICRC have to detainees in prisons in Burma. The ICRC conducts visits to places of detention always and only according to specific criteria, including for example the ability to interview any detainee in private, and with the agreement of the detaining authorities. The ICRC has not had access to detainees in Burma since 2006. The ICRC is seeking to resume substantive dialogue with the Burmese authorities on pressing humanitarian issues such as access to detainees as well as access to civilians in border areas.
Last year, the ICRC was able to conduct technical assessments in three Burmese prisons concerning their water and sanitation infrastructure. Today, water supply and sanitation works have almost been completed in these places. The ICRC hopes to extend such programmes to other prisons in the country.
The ICRC’s family visit programme for detainees (organisation and funding of transport for the families to visit) was never discontinued and continues as normal.
9.On the circumstances under which UK residents can be prosecuted in the UK for offences committed overseas, and the obstacles the Government sees to making UK firms subject to UK law for their actions overseas, as a general rule the criminal law of England and Wales is territorial in scope, as is that of Scotland and Northern Ireland where criminal law is now devolved, which reflects the principle that crimes are best addressed by the criminal justice system of the state in which they occurred. Conduct that amounts to an offence in the United Kingdom will not amount to an offence if it occurs outside the United Kingdom, unless there is specific statutory provision to the contrary.
There is now, however, a growing body of provision creating exceptions to the general rule. This body of law provides what is termed “extraterritorial jurisdiction” in respect of a wide range of criminal offences ranging from very serious crimes against humanity, such as genocide and torture, through more mainstream crime such as homicide, sex offences against children and bribery to esoteric areas of the criminal law such as that which serves to protect the integrity of civil nuclear sites. These exceptions stem from the pursuit of domestic policy objectives, and from the United Kingdom’s ratification of internationally agreed instruments, reflecting a consensus between nations that certain crimes need to be addressed by a concerted international response that includes the assumption of extraterritorial jurisdiction by participating states.
The most common exceptions to the general territoriality rule provide for conduct abroad on the part of United Kingdom nationals, and occasionally those that are ordinarily resident in the United Kingdom, to amount to an offence in the UK. The jurisdictional provision in the recently reformed Bribery Act 2010 is a good example. The extension of active nationality jurisdiction to embrace United Kingdom residents is not, however, as yet an automatic corollary of nationality extraterritorial jurisdiction.
For criminal extraterritorial jurisdiction, nationality can often be defined to include bodies incorporated in the United Kingdom, thus making United Kingdom companies liable for offences committed by them outside the United Kingdom. An offence is committed by a corporate body when it can be proved that, although the offending conduct may have been undertaken by, for example, an employee of the body, a person who is rightly identified as a “directing mind” of the body was possessed of the necessary state of mind for the offence. Accordingly, United Kingdom companies can, for example, be convicted of bribery offences committed overseas on this basis.
10.Committee members asked how many UK and non-UK-based staff at UK Missions overseas work full time on human rights. A survey of our posts covering multilateral work with international organisations, our twenty eight countries of concern and four case study countries shows the number for these countries the figure is 14. This is made up of eight UK-based staff and six locally engaged staff. However, when compiling this data, several posts reported that although human rights is a key priority for them they do not have any staff who work exclusively on human rights. Instead, a high percentage of the time of a number of individuals is spent on human rights-related work. This is particularly common at smaller posts where there are only a handful of staff, and therefore other areas of work are also part of their job description. In some of our smaller missions for example, 75 percent of an individual’s time is spent on human rights work. Taking the full-time figures in isolation does not therefore represent an accurate reflection of the importance we attach to human rights work across our overseas network.
11.On whether the UK is in favour of EU accession to the European Convention on Human Rights, and what the Government’s concerns about accession are, we remain committed to fulfilling the obligation arising from the Lisbon Treaty of EU accession to the Convention. The UK is playing a full and constructive part in the negotiations aimed at agreeing the terms of that accession.
EU accession will mean that the EU itself can defend itself before the Court where its own acts are alleged to breach the Convention, and be held to account if a violation is upheld. It will also help to ensure consistency of case-law relating to fundamental rights between the Strasbourg Court and the European Court of Justice.
At the same time, accession of a non-state entity to the Convention is unprecedented. The modalities of accession need to reflect the unique and special nature of the EU as a future contracting party to the Convention. In addition, the EU is not becoming a member of the Council of Europe, unlike all other parties to the Convention, which further complicates the arrangements needed.
We are concerned to get the terms of the Accession Agreement and the accompanying EU Internal Rules that will set out how accession will work internally within the EU right first time. In particular, we are looking at rules to determine how decisions should be made on how the EU participates in cases before the European Court of Human Rights. We believe it is important to consider these arrangements carefully and fully, as, once they have been agreed, it will be extremely difficult to amend the documents.
We share the concern of other parties to the Convention that the EU’s accession should not compromise the Convention system, including the functioning of the Committee of Ministers. We need to ensure that accession does not affect the competences of the EU and its institutions. We are also concerned to ensure that the position of EU Member States in relation to the Convention is not affected by EU accession. These are matters to be addressed through the ongoing negotiations on which the Ministry of Justice is the lead Department.
16 July 2012
