Conclusions on diplomatic assurances
126. In our Third Report of this Session, we concluded
that states were entitled to seek diplomatic assurances against
torture from other states, and that in principle such assurances
were capable of satisfying the State's obligation not to return
an individual to a real risk of torture. Assurances would be considered
by the courts as one of the relevant factors in assessing the
risk of torture in the particular circumstances of each case.
We considered however that in practice such assurances should
be treated with great caution so as not to undermine the absolute
nature of the prohibition on torture, but that the content of
each assurance should be examined in the context of each particular
case. We deferred until this report consideration of whether the
particular Memoranda of Understanding recently agreed by the UK
were likely to be human rights compliant.[165]
127. The analysis which follows represents our conclusions
on the general human rights issues raised by these MoUs: it does
not relate to individual cases of proposed deportation on the
basis of assurances. The assessment of the risk of torture following
removal is a matter for the courts and is dependent on the individual
circumstances of each case, including the circumstances of the
country to which deportation is proposed, the circumstances of
the applicant and the nature of the protection offered by the
terms of the assurance in the case. In Chahal v UK, for
example, all of these circumstances were considered by the Court,
and it was a combination of the prevalence of torture of terrorist
suspects such as the applicant, and the inability of the government
to ensure his safety in practice, which grounded the Court's decision
that the assurance in that case was insufficient to allow deportation
compatibly with Article 3 ECHR. Nevertheless the Court in that
case accepted the good faith of both Governments in negotiating
the diplomatic assurance. In the case of Agiza v Sweden,
the UN Committee Against Torture's assessment that the diplomatic
assurance was insufficient to prevent torture was also based on
the terms of the particular assurance in that case, and did not
go so far as to rule out any reliance on diplomatic assurances.
128. The Venice Commission on Democracy through Law,
in a recent legal opinion, has taken the view that, although in
principle the acceptance of diplomatic assurances is "the
expression of the necessary good faith and mutual trust between
friendly States"[166]
in practice, recent experience has shown that assurances against
torture may be breached, and therefore "where there is substantial
evidence that a country practises or permits torture in respect
of certain categories of prisoners, guarantees may not satisfactorily
reduce [the risk]".[167]
The Commission concluded that in such circumstances Council of
Europe states should not rely on assurances against torture.[168]
129. The evidence we have heard in this inquiry,
and our scrutiny of the Memoranda of Understanding agreed between
the Government and the Governments of Libya, Lebanon and Jordan,
have left us with grave concerns that the Government's policy
of reliance on diplomatic assurances could place deported individuals
at real risk of torture or inhuman and degrading treatment, without
any reliable means of redress. We are very concerned that
reliance on the good faith of Governments which are known to use,
tolerate or be unable to prevent torture in breach of international
obligations, is simply not a sufficient guarantee to protect against
torture, which of its nature is a clandestine practice, takes
place often without official authorisation and may be very difficult
to detect. In our view, the recent cases of Ahmed Agiza and Maher
Arar demonstrate this danger: both were tortured, one in Egypt,
the other in Syria, following their deportation to those countries
on the basis of assurances that they would not be tortured. As
those unfortunate cases show, the consequences for the individuals
concerned are so grave that this is a risk which the UK should
not be prepared to take.
130. Reliance on diplomatic assurances also has a
second, less immediate, but nonetheless deeply corrosive effect.
The pursuit of bilateral agreements in relation to torture undermines
the multilateral framework of the UN and other treaty bodies concerned
with the eradication of torture. At a time when the universal
and absolute prohibition on torture needs more than ever to be
supported and reaffirmed, the use of diplomatic assurances against
torture undermines that universal legal prohibition, and presupposes
that the torture of some detainees is more acceptable than the
torture of others. In thus undermining the universal legal prohibition
on torture, it risks damaging the validity and effectiveness of
international human rights law as a whole.
131. We therefore agree with the UN Special Rapporteur
on Torture, the European Commissioner for Human Rights and others
that the Government's policy of reliance on diplomatic assurances
against torture could well undermine well-established international
obligations not to deport anybody if there is a serious risk of
torture or ill-treatment in the receiving country. We further
consider that, if relied on in practice, diplomatic assurances
such as those to be agreed under the Memoranda of Understanding
with Jordan, Libya and Lebanon present a substantial risk of individuals
actually being tortured, leaving the UK in breach of its obligations
under Article 3 UNCAT, as well as Article 3 ECHR. We are also
concerned that Memoranda of Understanding lack enforceable remedies
in an event of a breach of the terms of the Memoranda.
Detention of those being held
pending deportation
132. A further serious issue arising from the policy
of seeking deportations with assurances is the continuing detention
of individuals while lengthy negotiations are being pursued with
other Governments. Deportation action against thirty persons on
grounds of national security was commenced in 2005, including
nine of those originally detained under Part IV of the Anti-terrorism
Crime and Security Act 2001, with all of them initially being
detained under immigration powers pending negotiation of diplomatic
assurances. By the end of that year, six people had been released,
3 had been remanded in custody on criminal charges, 6 released
on bail, 3 granted bail on principle and 12 remained in immigration
detention.[169] As
we noted in our recent Report on the renewal of the control orders
regime,[170] it appears
that those released on Immigration Act bail have been released
on conditions amounting to "full house arrest", in other
words, subject to restrictions which would amount to a derogating
control order if imposed under the control orders legislation.
133. In addition to our concern that such detention,
or house arrest, pending the conclusion of memoranda of understanding
is likely to be or become incompatible with Article 5 ECHR,[171]
because there must be a realistic prospect of deportation within
a reasonable time,[172]
there is a risk that such continued detention (whether in custody
or under house arrest) may, for some of the detainees, amount
to inhuman and degrading treatment if it is of indeterminate and
prolonged duration.[173]
As we noted in our Report on the renewal of control orders,
the Council of Europe's Committee on the Prevention of Torture
(CPT), in a visit to the UK in November 2005, visited certain
individuals being detained with a view to being deported, as well
as others subject to control orders.[174]
We remain concerned. However we understand that the CPT will report
imminently on that visit and we look forward to the Government
promptly requesting the publication of the Committee's Report.
127 (1996) 23 EHRR 413; See also Soering v UK,
para.88.The principle is also reflected in the application of
Article 7 ICCPR by the UN Human Rights Committee: Ng v Canada,
CCPR/C/49/D/469/1991: a state "would itself be in violation
of the Covenant if it handed over a person to another State in
circumstances in which it was foreseeable that torture would take
place." See also Human Rights Committee General Comment 20,
A/47/40 (1992) States Parties "must not expose individuals
to the danger of torture or cruel, inhuman or degrading treatment
or punishment upon return to another country by way of their extradition,
expulsion or refoulement." Back
128
Q 19 Back
129
CAT/C/34/D/233/2003 Back
130
Para 13.4 Back
131
Ev 145-153 Back
132
Commission of Inquiry into the Actions of Canadian Officials
in Relation to Maher Arar, Report of Professor Stephen J Toope,
Fact-finder, 14 October 2005, www.ararcommission.ca Back
133
Singh and Singh v Home Secretary (July 2003); Akhmed
Zakev (November 2003, refusing extradition to Russia), Human
Rights Watch, Empty Promises: Diplomatic Assurances no Safeguard
Against Torture, April 2004, pp. 29-30 Back
134
Human Rights Watch, Still at Risk: Diplomatic Assurances No
Safeguard Against Torture, April 2005; Empty Promises:
Diplomatic Assurances No Safeguard Against Torture, April
2004 Back
135
Statement of Mr Manfred Nowak Special Rapporteur, the UN Special
Rapporteur on Torture, expressing concern that the plan of the
UK to request diplomatic assurances for the purpose of expelling
persons in spite of a risk of torture reflects a tendency in Europe
to circumvent the international obligation not to deport anybody
if there is a serious risk that he or she might be subjected to
torture. Back
136
Such as that at issue in the case of Chahal v UK, op.
cit., para 37 Back
137
Ev 78-83 Back
138
The Guardian, UK fails to secure deal on Algerian deportees,
2 May 2006 Back
139
The Jordanian Memorandum stipulates visits once a fortnight, whether
or not the person has been convicted. Although the visits must
be "prompt", it is not specified how soon after arrest
the first visit must take place. The Libyan Memorandum requires
a visit within one week of arrest, detention or imprisonment,
then at least once every three weeks pending trial, and at unspecified
"regular" intervals thereafter. Under the Lebanese Memorandum,
a detained person is entitled to contact the monitoring body within
48 hours of arrest, and is entitled to once weekly visits pending
trial. Back
140
No information is currently available to us about, for example,
the funding of this NGO, to enable us to assess its independence
or likely effectiveness as a monitor. Back
141
Q 159 Back
142
Ibid. Back
143
Third Report of Session 2005-06, op. cit., Q 53 Back
144
ILPA (Ev 150), Amnesty International (Ev 105), Human Rights Watch
(Ev 145), the Kurdish Human Rights Project (Ev 169), The Medical
Foundation for the Care of Victims of Torture, JUSTICE and Liberty
(Ev 153), the Law Society (Ev 170), the 1990 Trust (Ev 180), Michelle
Pratley (Ev 189) Back
145
ILPA (Ev 150), Human Rights Watch (Ev 145), Amnesty International
(Ev 105) Back
146
(1996) 23 EHRR 413 Back
147
Qq 1-79; Ev 153 Back
148
Ev 150 Back
149
Report by the Commissioner for Human Rights on the UK, 8 June
2005 Back
150
Press Release, "Diplomatic Assurances" Not an Adequate
Safeguard for Deportees, UN Special Rapporteur Against
Torture Warns, 23 August 2005 Back
151
See also the comments of the UN Independent Expert on the Protection
of Human Rights and Fundamental Freedoms while Countering Terrorism,
Robert K Goldman, February 2005, "the mere fact that such
assurances are sought is arguably a tacit admission by the sending
State that the transferred person is indeed at risk of being tortured
or ill-treated" UN Commission on Human Rights, E/CN.4/2005/103,
7.2.05, p.19, para.56. Back
152
Q 29 Back
153
Ev 150 Back
154
Para 105 Back
155
Q 162 Back
156
Ev 145 and Ev 169 Back
157
Ev 145 Back
158
Qq 1-79 Back
159
Op. cit. Back
160
Q 161 Back
161
Op. cit., paras 65-66 Back
162
Suresh v Minister of Citizenship and Immigration, 2002
SCC 1 at paras 124-125 Back
163
Q 20 Back
164
Q 24 Back
165
Third Report of Session 2005-06, op. cit., paras 144-145 Back
166
Para 141 Back
167
Ibid. Back
168
Ibid., para 159(g) Back
169
Ev 73, para 60 Back
170
Twelfth Report of Session 2005-06, Counter-terrorism Policy
and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance
in force of sections 1 to 9) Order 2006, HL Paper 122, HC
915, para 43 Back
171
Ibid., para. 44. Lord Carlile, the reviewer of the operation
of the Prevention of Terrorism Act 2005, has similarly expressed
"a real concern about the detention under deportation procedures
(even where bail has been granted) of persons who in practice
cannot be deported at present and are unlikely to be capable of
legally compliant deportation within a reasonable time. It would
have been far preferable for Memoranda of Understanding to have
been reached before the deportation detentions took place":
First Report of the Independent Reviewer pursuant to section
14(3) of the Prevention of Terrorism Act 2005, 2 February
2006, at paras 27-28 Back
172
Article 5(1)(f) ECHR, as interpreted by the European Court of
Human Rights Back
173
The Council of Europe Committee on the Prevention of Torture,
in its Report published in June 2005, had serious concerns about
the mental state of many of those detained under the Part IV ATCSA
2001 powers as long ago as March 2004, and found that for some
of them their situation could be considered to amount to inhuman
and degrading treatment. Back
174
Twelfth Report of Session 2005-06, op. cit, para 82 Back