Formal Minutes
Thursday 18 May 2006
Members present:
Mr Andrew Dismore MP, in the Chair
| Lord Campbell of Alloway
Lord Judd
Lord Lester of Herne Hill
Baroness Stern
| Mary Creagh MP
Dr Evan Harris MP
|
Baroness Stern declared a non-pecuniary interest in that her husband
is a panel member of the Billy Wright inquiry.
Draft Report [The UN Convention against Torture (UNCAT)], proposed
by the Chairman, brought up and read.
Ordered, That the draft
Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 25 read and agreed to.
Paragraph 26 read.
Question put, That the paragraph stand part of the
Report.
The Committee divided.
Content, 4
Lord Campbell of Alloway
Dr Evan Harris MP
Lord Judd
Baroness Stern
| Not Content, 2
Mary Creagh MP
Mr Andrew Dismore MP
|
Paragraphs 27 to 128 read and agreed to.
Paragraphs 129 to 131 read, as follows:
"129. As we have previously stated, although
diplomatic assurances are capable, in principle, of satisfying
the State's obligation not to return an individual to torture,
in practice they should be treated with great caution in case
they undermine the absolute nature of the prohibition on deportation
to torture. The adequacy of each diplomatic assurance will be
a matter for consideration by the courts, and we welcome the clear
statements from both the Home Secretary and Baroness Ashton that
the adequacy of a diplomatic assurance to prevent a risk of torture
is a matter for assessment by the courts alone, rather than the
executive. Whether a diplomatic assurance will be sufficient to
allow deportation will depend on the circumstances of the case,
including the nature and extent of the risk of torture and the
degree to which the terms of the assurance, including monitoring
mechanisms, are sufficient to dispel that risk. The value of the
assurance in practice will depend on all the circumstances, including,
as the Supreme Court of Canada said in Suresh, the human rights
record of the government giving the assurances, the government's
record in complying with its assurances in the past, and the capacity
of the government to fulfil the assurance, including its ability
to control its security forces and other agents when dealing with
individuals such as the would-be deportee.
130. The evidence we have heard in the course
of this inquiry, and our analysis of the Memoranda of Understanding
already agreed, has confirmed our view in our earlier report that
diplomatic assurances should be treated with great caution, and
should not be presumed to provide any additional safeguard against
the risk of torture. Assurances are the products of diplomacy,
and as such are no substitute for binding, enforceable legal guarantees.
Their agreement is the product of diplomatic negotiation, the
demands of which will often preclude precise prohibitions on and
safeguards against ill treatment. The Government's response to
the Foreign Affairs Committee Report confirms that the main sanction
for breach of an MoU will be the serious damage done to diplomatic
relations between the two States. Even more worrying, diplomatic
considerations are likely to take precedence in the monitoring
of assurances following deportation. As Baroness Ashton made clear
to us, the Government would be very reluctant to question the
good faith of another Government with which it had agreed an assurance.
Furthermore, diplomatic assurances do not contain any enforcement
mechanism, which would allow for redress or sanctions in the event
of their breach. In the absence of a mechanism of enforcement,
assurances against torture from states that are known to practise
torture in breach of their obligations in international treaty
law as well as customary international law, are unlikely to be
reliable.
131. Whilst, therefore, in principle there could
be could be cases in which a diplomatic assurance against torture
could be adequate to alleviate the risk of torture, in our view
these cases will be rare. Where, as will normally be the case,
a diplomatic assurance against torture is sought from a state
where torture is widespread or systematic, then detailed and precise
guarantees, as well as intensive, frequent and scrupulously independent
monitoring mechanisms would be the minimum necessary for the diplomatic
assurance to carry any significant weight in the assessment of
whether the person to be deported would face a real risk of torture.
In regard to the particular Memoranda of Understanding which
have already been agreed by the Government with the Governments
of Lebanon, Libya and Jordan, we note that the human rights records
of those and other states with which Memoranda are currently being
negotiated, are such as to necessitate clear safeguards against
ill-treatment, backed up with effective, transparent and independent
monitoring mechanisms. We are not as yet satisfied that those
mechanisms are in place in relation to Lebanon and Libya. In our
view, the Memoranda of Understanding so far agreed by the Government
with those two countries therefore do not yet provide a sufficient
basis for alleviating a real risk of torture, to permit deportation
in compliance with Article 3 UNCAT and Article 3 ECHR. In
the case of Jordan, as we have noted above, a Jordanian
human rights NGO has been appointed as the monitoring body.
We recommend that the Government should make available further
information about this NGO to enable judgments to be made about
its likely independence and effectiveness in this role."
Motion made, to leave out paragraphs 129 to 131 and
insert the following new paragraphs:
"129A. 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.
129B. 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.
129C. 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 is an attempt to circumvent the well established
international obligation 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."—(Lord
Judd.)
Motion made, and Question put, That the paragraphs
be read a second time.
The Committee divided.
Content, 4
Lord Campbell of Alloway
Dr Evan Harris MP
Lord Judd
Baroness Stern
| Not Content, 2
Mary Creagh MP
Mr Andrew Dismore MP
|
Proposed new paragraph 129A.
Amendment proposed, in line 1, at the beginning, to insert the
words "Following the case-law of the European Court of Human
Rights, in our view diplomatic assurances are, in principle,
capable of satisfying the State's obligation not to return an
individual to torture, and cannot be regarded as irrelevant to
an assessment of the risk of torture. States are entitled both
to seek such assurances from other states and to take them into
account when deciding whether the individual concerned will be
exposed to a real risk of torture if deported. We disagree
with the views of the human rights NGOs whose evidence suggested
that it is wrong in principle to seek bilateral diplomatic assurances
about torture, and who declared that they would not be willing
to take part in monitoring of assurances. We find this view defeatist.
In our view, the human rights NGOs should be striving to make
diplomatic assurances work in practice, by agreeing to assume
the independent monitoring role envisaged by the memoranda of
understanding."—(Mary Creagh MP.)
Question put, That the Amendment be made.
The Committee divided.
|
Content, 2
Mary Creagh MP
Mr Andrew Dismore MP
| Not Content, 3
Dr Evan Harris MP
Lord Judd
Baroness Stern
|
Question put, That the paragraph stand part of the Report.
The Committee divided.
|
Content, 4
Lord Campbell of Alloway
Dr Evan Harris MP
Lord Judd
Baroness Stern
| Not Content, 2
Mary Creagh MP
Mr Andrew Dismore MP
|
Paragraph accordingly agreed to (now paragraph 129).
Proposed new paragraph 129B.
Question put, That the paragraph stand part of the
Report.
The Committee divided.
|
Content, 4
Lord Campbell of Alloway
Dr Evan Harris MP
Lord Judd
Baroness Stern
| Not Content, 2
Mary Creagh MP
Mr Andrew Dismore MP
|
Paragraph accordingly agreed to (now paragraph 130).
Proposed new paragraph 129C.
Amendments made.
Question put, That the paragraph, as amended, stand
part of the Report.
The Committee divided.
|
Content, 4
Lord Campbell of Alloway
Dr Evan Harris MP
Lord Judd
Baroness Stern
| Not Content, 2
Mary Creagh MP
Mr Andrew Dismore MP
|
Paragraph, as amended, accordingly agreed to (now paragraph 131).
Paragraphs 132 to 183 read and agreed to.
Summary read and agreed to.
Resolved, That the Report
be the Nineteenth Report of the Committee to each House. —(The
Chairman.)
Several Papers were ordered to be appended to the
Report.
Ordered, That the Chairman
do make the Report to the House of Commons and Baroness Stern
do make the Report to the House of Lords.
Ordered, That the provisions
of House of Commons Standing Order No 134 (Select committees (reports))
be applied to the Report.
[Adjourned till Monday 18 May at 4pm.
|
