House of Commons - The FCO's human rights work in 2012

The FCO's human rights work in 2012 - Foreign Affairs Committee Contents

3 Human rights and counter-terrorism

The Foreign Secretary's RUSI speech on countering terrorism overseas

45. Our terms of reference for this inquiry invited comment on a major speech given by the Foreign Secretary at the Royal United Services Institute on 14 February 2013, on countering terrorism overseas.[83] The Foreign Secretary's initial premise was that

We need to combine creative work from our Intelligence Agencies and police with intelligent diplomacy. We have to help build stability and the rule of law in other countries, living up to our values at all times. And we need to make common cause with peoples and governments that reject this violence. This combination of intelligence, diplomacy, development and partnership with other nations is the only way to defeat terrorism over the long term.

Having set out the nature of current threats, the Foreign Secretary went on to discuss the implications for the FCO's policies on human rights overseas. He said:

When we detect a terrorist plot originating in a third country, we want to be in a position to share information to stop that planning, and do it in a way that leads to the arrest, investigation and prosecution of the individuals concerned in accordance with our own legal obligations, and with their human rights respected at every stage. This gives rise to extremely difficult ethical and political decisions, such as whether to pass on information which might save lives and disrupt an imminent attack, but which could also create a risk of someone being mistreated if detained.

In many cases, we are able to obtain credible assurances from our foreign partners on issues such as detainee treatment and legal processes that give us the safeguards we need, and the confidence that we can share information in this way. Where this is not the case, we face a stark choice. We could disengage, or we can choose to cooperate with them in a carefully controlled way while developing a more comprehensive approach to human rights adherence. This approach brings risk, but I am clear that the risks of the first option, of stepping back are greater still, placing our citizens at greater risk of terrorist attack.

46. Mr Hague went on to explain what he meant by "developing a more comprehensive approach to human rights adherence":

We will seek justice and human rights partnerships with countries where there is both a threat to the United Kingdom's security, and weaknesses in the law enforcement, human rights and criminal justice architecture of these countries. [This would be] a systematic process of working with the authorities in question to identify shortcomings in capability, and to address these through the provision of British assistance and expertise, over many months or years.

He gave examples of areas in which the UK might offer assistance and expertise:

· Building up the counter-terrorism capacity of overseas security services to improve compliance with the law and human rights and to make them more effective;

· Working with local investigators to improve the ability to build cases based on evidence rather than on confessions;

· Supporting prosecutors and judges to ensure that they are capable of processing terrorism cases through the court systems, effectively, fairly and in line with the rule of law;

· Working to improve and where appropriate monitor conditions in detention facilities so that convicted terrorists can be held securely and their treatment meets with international standards.

He also listed five safeguards:

· Such assistance would be offered only where there is a "serious and potentially long-running threat to the UK or our interests abroad"

· Human rights risks would be assessed and mitigated in line with the FCO's Overseas Security and Justice Assistance Guidance

· Such assistance would not be carried out in isolation but would be part of UK and international diplomatic and development efforts in that country

· The intelligence dimension would be subject to "the same robust scrutiny and oversight that exists in other areas of Intelligence activity" and would always be in accordance with the law

· Ministerial oversight and approval would always be required

Reaction to the speech

47. In general, the tone of responses to the Foreign Secretary's speech was sceptical, and NGOs cited the format of the recent Detainee Inquiry,[84] the perceived failure to make progress in closing the camp at Guantanamo Bay, and arrangements for deportation with assurances, as evidence of their disillusionment with the Government's record in ensuring respect for human rights while countering terrorism. Redress said that it was concerned that the policy "will not translate into any meaningful change",[85] and Amnesty International said that the approach outlined by the Foreign Secretary was "not a rights-based approach to security but a continuation of an approach that not only inconsistently promotes human rights in other countries but also undermines human rights through the UK's own counter-terror measures". It added that the Foreign Secretary's five safeguards were "unacceptably weak".[86]

48. Witnesses were a little more generous in oral evidence. Mr Mepham noted "a number of things...that it would be hard to disagree with"—such as co-operation and engagement—and he acknowledged that the Foreign Secretary had stated right at the outset "the importance of situating what we do in terms of the counter-terrorism agenda very much within the framework of the rule of law, human rights, good governance, and so on". Mr Mepham's concern was how that overall principle was translated into practice.[87] Kate Allen said that the speech had identified "some of the key dilemmas" but felt that there were "some missing elements", such as the role of the UN and use of existing mechanisms to monitor detention facilities.[88]

49. Whatever the arguments about the merits of the approach set out in the speech, it is debatable whether much in it is actually new. Professor Michael Clarke, Director-General of the Royal United Services Institute, thought that the Foreign Secretary's emphasis on partnership with countries where democratic and civil rights were less strong than in the UK made "perfect sense"; but he noted that "a number of people … were left wondering what was different or new about the approach, other than to lay it all out in a very clear way".[89] Much of the reasoning and language of the speech echoes the Overseas Security and Justice Assistance Human Rights Guidance, published by the FCO in December 2011 to assist Government staff "who are called upon to advise on security and justice matters overseas" and to help them identify and mitigate human rights risks.[90] The Consolidated Guidance to Intelligence Officers on the Detention and Interviewing of Detainees Overseas, published by the FCO in 2010, also explicitly recognises the UK's international and domestic obligations when co-operating with countries whose practice raises questions about their compliance with international legal obligations.[91]

50. Baroness Warsi did not claim that the speech was ground-breaking: she characterised it as "an articulation of where we were, what the problem was and the framework within which we intend to operate".[92] That seems to us to be a fair representation. We agree with the principles outlined by the Foreign Secretary in his speech to the Royal United Services Institute in February 2013, on the approach to counter-terrorism and respect for human rights, although we acknowledge the scepticism in some quarters about whether they will lead to meaningful change. We believe that the significance of the accountability to Parliament and to the wider public which flows from ministerial oversight and approval for work of this nature should not be underestimated.

The Detainee Inquiry

51. The Detainee Inquiry, led by Sir Peter Gibson, was set up to "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".[93] In the event, the Inquiry never progressed beyond preparatory work, as it could not proceed in parallel with police investigations into allegations of rendition to Libya and ill-treatment of Abdel Hakim Belhadj and Sami al-Saadi, and these were expected to take many months if not years. The Government nonetheless announced that it intended to hold an independent, judge-led inquiry, once all police investigations had concluded, "to establish the full facts and draw a line under these issues".[94] In the meantime, Sir Peter Gibson agreed to produce a report on the Inquiry's preparatory work, and the Government made a commitment to place as much of it as possible in the public domain. That report was presented to the Prime Minister on 27 June 2012.[95]

52. When we asked Baroness Warsi for an indication of when Sir Peter Gibson's report on the preparatory work of the Detainee Inquiry might be published, she replied that she could offer no timescale. She reiterated that there was a commitment by the Government to publish as much of Sir Peter's report as possible but pointed out that the Metropolitan Police inquiry and operation were "ongoing". She also confirmed that publication would need to take into account not just the ongoing police investigations but also any prosecutions which might arise.[96] However, in supplementary written evidence, she hinted that the police investigations might not be an absolute bar to publication of much of Sir Peter's report:

We are undertaking checks to ensure that the report will not prejudice the ongoing police investigation and, although no date has been set, we hope to be in a position to publish as full a version as possible of the report as soon as possible.

We encourage the Government to take whatever steps it can—including swift publication of as much as possible of Sir Peter Gibson's report on the Detainee Inquiry's preparatory work—to ensure that the process of inquiring into allegations of rendition or improper treatment of detainees by the UK Government and its security and intelligence agencies does not come to a complete halt while criminal investigations are under way.

53. A number of human rights groups had already criticised the Detainee Inquiry, saying that they could not "co-operate in a process where evidence will be heard largely in secret, where the Government will decide what will be published, and the victims will not be able to question, or even identify, witnesses from MI5, MI6, or other agencies".[98] Amnesty International said in its memorandum to this inquiry that the Detainee Inquiry "fell short of international human rights standards for effective, independent and through investigations" and that

Consultation with victims, civil society organizations and others is key to ensuring that the terms of reference and protocol of such an inquiry meet international standards which require it to be prompt, independent, thorough and subject to public scrutiny with the participation of victims.

Redress drew our attention to the statement by the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson QC, who said that

The Inquiry lacked the power to compel the attendance of witnesses or the production of documents. Nor did the Inquiry have any power to request the production of evidence from other States, or their personnel

and that

Under the protocol established for the Inquiry, the final decision as to whether any document or finding could be released to the public was vested in the Cabinet Secretary (a senior civil servant).

100

54. We recommended last year 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".[101] Nothing, however, appears to have happened. Redress told us that the Government had not used the intervening period "to develop any mechanisms for a new inquiry, and/or to deal with the shortcomings of the Gibson Inquiry",[102] and witnesses from Amnesty International and Human Rights Watch confirmed that there had been no discussions with them.[103] Redress pointed out that the UN Special Rapporteur had encouraged the UK to "make a public statement setting out a timetable for the start of the proposed judge-led inquiry, indicating what its powers and terms of reference will be" and had recommended that "the shortcomings in the terms of reference for, and the powers of, the Gibson Inquiry should be remedied in the resumed inquiry".[104]

55. We have not considered in detail the merits and drawbacks of the process adopted by the Detainee Inquiry, nor have we taken a view on what the mode of working of its successor should be; but we are disappointed that no attempts appear to have been made to initiate discussions between the Government and human rights bodies as to how the successor inquiry to the Detainee Inquiry might proceed. We believe that it is incumbent on both sides—not just the Government—to take steps to work towards a resolution.

Deportation with assurances

56. The UK Government has established "deportation with assurances" (DWA) arrangements for foreign nationals who are suspected of illegal activity which might place at risk the security of the UK, but for whom there is not enough evidence to mount a prosecution. The UK has DWA arrangements with Ethiopia, Algeria, Lebanon, Jordan and Morocco; DWA arrangements were concluded with Libya while Colonel Qadhafi was in power, but these are no longer considered by the FCO to be operational.[105] 11 people have so far been returned under DWA arrangements, specifically to Algeria and Jordan, and 13 other applications are in progress.[106] We set out in our report last year on the FCO's human rights work the reasons why human rights groups oppose the use of DWA arrangements.[107] Those objections persist. Redress said this year that there were "fundamental problems" with the system;[108] Amnesty International described assurances from governments of countries where torture and ill-treatment were systematic or widespread as "inherently unreliable" and "simply not worth the paper they are written on";[109] and David Mepham described the system as "lacking in credibility".[110]

Monitoring arrangements

57. In our most recent report on the FCO's human rights work, published in October 2012, we asked the Government to 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.[111] The Government eventually supplied that information in a letter from Baroness Warsi on 3 June this year, which included a copy of specimen terms of reference for monitoring bodies.[112] The Minister apologised for the delay, which was attributed to a misunderstanding over whether the Committee would make a further specific request.[113]

58. In essence, third party organisations are responsible for monitoring in Ethiopia, Jordan and Lebanon: these organisations are the Ethiopian Human Rights Commission, the Adaleh Centre, and the Institute of Human Rights respectively.[114] However, Amnesty International, in a follow-up written memorandum submitted after it had given oral evidence, pointed out that there are doubts about the efficacy of the named monitoring body in Ethiopia. It cited the finding by the UK Court of Appeal that the Commission "could not be trusted to report deliberate breaches by the Ethiopian Government" and that there was "work to be done before the EHRC will have developed proper capacity for monitoring".[115] As regards other countries, the agreement with Algeria makes no provision for formal post-return monitoring, and British Embassy staff in Algeria carry out the work. Details of monitoring arrangements for the agreement with Morocco "are being finalised", although the agreement itself was signed in September 2011.[116]

59. We asked Baroness Warsi what would happen if it was discovered that someone who had been returned by the UK under a DWA arrangement was being maltreated. Baroness Warsi replied that "the strength and robustness of [the] relationships and agreements mean that there would be serious consequences to the relationship between the countries" if the basis of the DWA arrangement were to be breached. She believed that the terms of the agreements would allow the UK to gain access to the individual and to make its concerns known.[117] That would seem to us to be an optimistic view: while there might indeed be consequences for the bilateral relationship, there is no certainty that the UK could do anything for the person who had been maltreated while in detention.

60. We commend the FCO for providing information to us on monitoring arrangements for people held in detention having been returned by the UK under DWA arrangements. We request that the FCO report every twelve months to this Committee on the effectiveness of monitoring arrangements and on whether any allegations of abuse have been reported. Given the uncertainty over the independence of the Ethiopian Human Rights Commission, we recommend that, in the absence of any acceptable alternative, the UK should negotiate with the Ethiopian Government to secure a right of access by British Embassy officials to people detained in Ethiopia following deportation from the UK with assurances, to complement the monitoring by the Ethiopian Human Rights Commission. We seek assurances that Embassy staff already monitoring treatment of detainees in Algeria receive suitable training, such as that offered by the International Committee of the Red Cross to its staff carrying out similar work.

The return of Abu Qatada

61. By far the most high-profile case under the DWA regime has been that of Abu Qatada, whom successive Home Secretaries have tried to deport since 2001. In January 2012, the European Court of Human Rights found that deportation to Jordan would violate Abu Qatada's rights under the European Convention on Human Rights. That decision was reached not on the basis of Article 3 (the ECHR was satisfied that assurances given by Jordan that Abu Qatada would not be subject to torture could be relied upon) but under Article 6, as the Court believed that there was a real risk that evidence obtained by torture of Abu Qatada's original co-defendants in an in absentia trial would be used against him in a retrial on his return to Jordan. Abu Qatada's appeal against deportation on Article 6 grounds was upheld by the Special Immigration Appeals Commission in November 2012, and the Court of Appeal subsequently confirmed that ruling and denied the Home Secretary leave to appeal against it at the Supreme Court.

62. On 24 April this year, the Home Secretary announced that the Government had signed a mutual legal assistance agreement with Jordan, covering assistance in obtaining evidence for the prosecution of crimes, and a framework for assistance in the restraint and confiscation of the proceeds of crime. Significantly, it also included fair trial guarantees; and the Home Secretary told the House that she believed that the guarantees would provide the courts with the assurance that Abu Qatada would not face evidence that might have been obtained through torture.[118] The relevant paragraph of the Treaty reads as follows:

Where there are serious and credible allegations that a statement from a person has been obtained by torture or ill-treatment by the authorities of the receiving State and it might be used in a criminal trial in the receiving State referred to in paragraph 1 of this Article, then the statement shall not be submitted by the prosecution nor admitted by the Court in the receiving State, unless the prosecution submits evidence on the conditions in which the statement was obtained, and the Court is satisfied to a high standard that such statement has been provided out of free-will and choice and was not obtained by torture or ill-treatment by the authorities of the receiving State.

119

We note that the treaty provides a legal basis for the guarantees on fair trial in Jordan, whereas Memoranda of Understanding (under which previous deportations with assurances have taken place) are not legally binding.

63. On 10 May this year, Edward Fitzgerald QC, a barrister acting for Abu Qatada, told the Special Immigration Appeals Commission that Abu Qatada would return voluntarily to Jordan if and when the Jordanian parliament had ratified the treaty.[120] The UK ratified the treaty in late June, and the Home Secretary duly issued a fresh deportation decision. The final steps necessary to give effect to the treaty in Jordan, following earlier ratification by the Jordanian parliament, were taken in early July; and on 9 July Abu Qatada was deported to Jordan, having opted not to challenge the deportation order.

64. Baroness Warsi suggested to us that the signing of the Treaty had been enough to satisfy Abu Qatada that "he was now in a position where he would go back". She also told us that the Government had felt that a specific treaty on fair trials and process was needed between the UK and Jordan in order "to satisfy the Court".[121] Whether it would have done so is not known, as the Treaty's provisions for safeguarding the rights of returned persons were not tested before the courts; but one distinct advantage of using a treaty mechanism was that it gave Parliament an opportunity to express a view. Under the Constitutional Reform and Governance Act 2010, 21 Parliamentary sitting days had to pass before the Government could proceed with ratification of the treaty. During that period, Members had a chance to signify their objection and force the Government to justify the treaty's provisions. In the event, no objection was registered, and the treaty was duly ratified.

65. We asked the Minister whether the Government would seek to use treaties rather than memoranda of understanding for DWA arrangements in future. She replied that "each case is different, and it is important that we do not allow our future discussions with countries to be focused around an individual case … In this case, we felt that it was important to go down this route". She added that she did not believe that it set a precedent, but nor was the treaty option "something that we would never use again".[122] We note that the Government has shifted its thinking on this matter: as recently as December 2012, it rejected our suggestion that DWA arrangements should be subject to some form of Parliamentary process and argued that existing processes—the use of Memoranda of Understanding—were "appropriate".[123] We welcome the Government's decision to use a treaty base for assurances on the treatment of persons returned to Jordan, such as Abu Qatada. It may have been instrumental in securing Abu Qatada's return and, with hindsight, could perhaps have done so months or years ago had the Government chosen to follow this route sooner. We note with approval that the Government has not ruled out the use of treaties to underpin DWA arrangements with other countries.

Review of DWA policy

66. The Government, in its response to our report last year on the FCO's human rights work, told us that David Anderson QC (the Independent Reviewer of Terrorism Legislation) would conduct a one-off review of the Government's DWA policy in 2013, when he had the capacity to do so, and that the conclusions of the review would be made public.[124] That is a welcome development; but we were surprised to see that no mention was made in the latest Human Rights and Democracy Report of Mr Anderson's review. We ask the FCO to provide us with an update on the progress of the review of DWA policy by David Anderson QC, the Independent Reviewer of Terrorism Legislation.

83 https://www.gov.uk/government/speeches/countering-terrorism-overseas Back

84 Announced by the Prime Minister in 2010, and established to "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." Back

85 Ev w3 Back

86 Ev 37 and 38 Back

87 Q6 Back

88 Q6 Back

89 Evidence given on 25 June 2013 on Extremism and political instability in North and West Africa, HC 56-ii of Session 2013-14, Q 78 Back

90 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/35447/osja-guidance-151211.pdf Back

91 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/62632/Consolidated_ GuidanceNov ember_2011.pdf Back

92 Q 96 Back

93 Statement by the Prime Minister, HC Deb 6 July 2010, col 176 Back

94 HC Deb 18 January 2012, col 752 Back