Letter and memorandum from the Rt Hon. Lord Falconer
of Thoroton, Secretary of State and Lord Chancellor
I am writing to respond on behalf of the Government
to the Committee's report assessing the United Kingdom's compliance
with the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (UNCAT).
I would of course echo the Committee's sentiments
that the prohibition of torture and inhuman or degrading treatment
is a fundamental principle of a civilised and democratic society.
The right not to be subjected to such treatment is protected in
our domestic law by the Human Rights Act 1998, common law principles,
and by various provisions of the criminal law, some of which have
effect beyond our borders. Internationally, UNCAT provides strong
and important safeguards, and it is therefore essential that the
United Kingdom and other states party to the Convention comply
fully with the obligations that it imposes.
I shall respond to each of the Committee's recommendations
in turn, citing the appropriate text (in bold) and paragraph numbers
from the Committee's report.
Letter from the Rt Hon. Lord Falconer of Thoroton,
Secretary of State and Lord Chancellor
Thank you for your Committee's 19th report
of the 2005-06 session on the UN Convention Against Torture. I
am pleased to attach a memorandum setting out the Government's
response. I am sorry for the delay in sending this. I look forward
to the opportunity to discuss it, and other matters, when we meet
on 30 October.
The prohibition on torture
we acknowledge the Government's right to intervene in any appropriate
case before the European Court of Human Rights, we are concerned
that the intervention in Ramzy v Netherlands, in arguing for deportations
of terrorist suspects despite a real risk of torture on their
return, may send a signal that the absolute prohibition on torture
may in some circumstances be overruled by national security considerations.
We reiterate our view that the absolute nature of the prohibition
on torture precludes any balancing exercise between considerations
of national security and the risk of torture. In our view, the
principle established in Chahal v UK is essential to effective
protection against torture, and accordingly should be maintained
27. We consider
it unlikely that the Government will succeed in its attempt to
secure a revision of the Chahal decision. We note that even if
the Government were to succeed, the absolute prohibition on torture,
and on expulsion to face a real risk of torture, would in any
event remain binding on the Government under the Convention Against
Torture, and any expulsion carried out despite a real risk of
torture or inhuman or degrading treatment would be likely to breach
The Government unreservedly condemns the use of torture.
The United Kingdom has been at the forefront of efforts by the
international community to eradicate its practice throughout the
world. We abide by our human rights obligations under international
law, and shall continue to do so when considering whether or not
an individual should be deported or extradited from this country.
However, the Government continues to believe there
should be a balancing of risks particularly when expulsions are
being considered on the grounds of national security, and that
all the circumstances of a particular case should be taken into
account in deciding whether or not a removal is compatible with
the Convention. The Government is also under an obligation to
protect the human rights of people who may be at risk from the
person whose deportation is proposed. In this context, national
security considerations cannot simply be dismissed as irrelevant.
The Convention in domestic law and policy
32. The UK
has not accepted the right of individual petition under Article
22. Rights of individual petition to UN Committees were reviewed
by the Government in a comprehensive review of international human
rights obligations, which published its conclusions in 2005. The
review decided that the UK should accept the right of individual
petition under the Convention on the Elimination of all Forms
of Discrimination Against Women (CEDAW), on a trial basis for
two years, but should not at present accept rights of individual
petition under other UN human rights treaties. In its Report on
the conclusions of the Review, our predecessor Committee regretted
that the remaining rights of individual petition under UN treaties
had not been accepted, and recommended that the position in regard
to those treaties should be reviewed at an early opportunity,
in light of the experience with individual petition under CEDAW.
We support the recommendation of our predecessor Committee that
early consideration should be given to accepting rights of individual
petition under UNCAT, as well as other UN human rights treaties.
As the practical advantages and potential risks of
individual petition to the UN are unclear, the Government decided
in 2004 to accept the right of individual petition under CEDAW
in order to enable further consideration on a more empirical basis.
The Government will review the UK experience with regard to the
Optional Protocol to CEDAW after 17 March 2007 two years
from the date on which the Protocol entered into force in the
37. Mr Woodward
told us that no decisions had yet been taken as a result of the
consultation on the precise arrangements for the NIHRC's general
power to access places of detention, and conditions which might
be placed upon it, nor on whether the Commission would be designated
as a monitoring body under the Optional Protocol. We recognize
the importance of ensuring that the NIHRC's functions in these
respects take account of the roles of other bodies, such as the
Prisoner Ombudsman. At the same time we consider that the Commission
should be designated as a monitoring body in Northern Ireland
under the Optional Protocol, with responsibilities focusing on
compliance of places of detention with the UK's human rights obligations.
We also consider that a power of unannounced inspection is important
to the effectiveness of such a monitoring mechanism.
Following the recent political talks in St Andrews,
the Government has announced that it would be bringing forward
legislation that would extend new powers to the Northern Ireland
Human Rights Commission. This will include the power to access
places of detention as part of their investigations.
The Government expects the UK National Preventative
Mechanism (NPM) to comprise bodies with powers required under
the Optional Protocol (OPCAT). In establishing the UK NPM, the
Government will bear in mind the provisions of OPCAT Article 20
on the powers required by the NPM to carry out its mandate. The
Government expects that unannounced visiting will be an important
feature of the work of the UK NPM.
consider that the DCA, as the department with central responsibility
for the Convention Against Torture, should be proactive in providing
guidance and advice on Convention obligations to other Government
Departments, in particular in relation to the positive obligations
of departments to take steps to prevent, and to investigate, acts
of torture or inhuman or degrading treatment.
As with all of the international and domestic human
rights instruments for which DCA is responsible, the relevant
officials in my Department provide advice to their colleagues
in other Government Departments to assist them in ensuring that
their policies, practices and legislation comply with relevant
obligations, including positive obligations under international
treaties. I am confident that policy and legal advisers in departments
engaged in protecting the freedom from torture are seized of the
importance of these obligations, and take them into account in
their own Department's work. Furthermore, each Department itself
as a public authority has obligations under the Human Rights Act
1998 with which it must comply, which includes acting compatibly
with the negative and positive obligations imposed by the prohibition
of torture under Article 3 of the Convention rights.
42. In ensuring
that obligations, in particular positive obligations, under the
Convention Against Torture, are fully appreciated throughout Government,
the proposed new Commission for Equality and Human Rights should
also have an active part to play. It will be an important part
of the Commission's function to promote the protection of human
rights, to scrutinise Government policy and practice for compliance
with both negative and positive obligations under the Convention
Against Torture, and to recommend measures to enhance protection
of rights under the Convention where appropriate.
The duties of the Commission for Equality and Human
Rights (CEHR), as set out in the Equality Act 2006, include the
duties to promote awareness, understanding and protection of human
rights, and to encourage good practice in relation to human rights.
Whilst the Act requires the Commission to have particular regard
to the importance of the Convention rights under the Human Rights
Act 1998, it will also take into account other human rights, such
as those under UNCAT. The Commission will be in a position to
scrutinise Government policy and practice in relation to human
rights and make recommendations to enhance policy-making and service
delivery. The Commission will operate independently of Government,
but the Government nevertheless hopes and anticipates that the
Commission will be develop close and productive relationships
with all key Government departments.
48. We warmly
welcome the House of Lords' affirmation of the prohibition on
torture, and the inadmissibility of torture evidence, as fundamental
principles of UK law. In affirming this principle, the judgments
of the House of Lords have gone a considerable way to addressing
our concerns, and those of the UN Committee, that evidence obtained
by torture could be relied on in the UK courts.
49. The practical
implications of the House of Lords' decision on the procedures
for establishing that evidence has been obtained by torture have
yet to be tested before SIAC. The test established by the judgment
carries an obvious risk that lack of information about the provenance
of evidence will lead to evidence which has in fact been obtained
by torture being admitted before SIAC. For the SIAC duty of inquiry
to be meaningful, SIAC must be able to access adequate information
on the provenance of the evidence concerned. This means it is
vital, in the event of a challenge to evidence before SIAC, that
the intelligence services and other Government agencies obtain
and supply to SIAC the fullest possible information about the
circumstances in which evidence passed on to them by foreign intelligence
agencies has been obtained.
The Government's condemnation of the use of torture
is a matter of fundamental principle. Evidence found to have been
obtained as a result of torture would not be admissible in criminal
or civil proceedings in the UK apart from in the circumstances
set out in Article 15 of the United Nations Convention Against
Torture. It would not matter whether the evidence was obtained
here or abroad.
The proper approach to apply to consideration of
the question whether any piece of evidence has been obtained by
torture is found in the speeches of Lords Hope, Rodger, Carswell
and Simon in A and others v Secretary of State for the Home
Department (No 2)  3 WLR 1249. SIAC should consider
whether it was established by such inquiry as it was practicable
to carry out and on the balance of probabilities that the information
relied upon was obtained by torture. If satisfied that it was
so obtained SIAC should decline to admit the material, but if
doubtful they should admit the material and should bear in mind
their doubt when evaluating it.
The Government accepts its responsibility to disclose
material to SIAC which it has and which is relevant to the question
whether any particular pieces of evidence were obtained by torture.
But the Government agrees with SIAC that there must be limits
on the extent to which SIAC is obliged to conduct a full investigation
into the sources of evidence including in the country where the
evidence in question was obtained. As Mr Justice Ouseley explained
in his open judgment in Y v Secretary of State for the Home
Department, 'We have not ruled on what the full extent of
such an investigation should be, although it is clear that the
investigation which they [the House of Lords] envisaged was not
one in which the Commission would actually travel to another country
to seek to interview its security services, police, military,
persons in detention or judiciary in order to reach conclusions,
and to do so with or without the representatives of the parties.
It would also be wrong for the Commission to delegate any fact
finding task to another body' (para 31, Open Judgment in Y
v Secretary of State for the Home Department, 24 August 2006,
Appeal Number SC/36/2005).
51. We agree
that there ought not to be an onus on the Government to prove
that evidence was not obtained by torture. But where a credible
allegation of torture has been raised, and SIAC is satisfied that
there is a substantial risk that the evidence was obtained by
torture, then SIAC has a discretion not to admit that evidence.
In our view, such an approach does not amount to requiring the
Government to prove a negative. Rather, it requires the appellant
to satisfy SIAC that the allegation that the evidence was obtained
by torture is credible. It also requires SIAC to be satisfied
that there is a substantial risk of the evidence having been obtained
by torture. The judgement will in our view need to be interpreted
and applied in a way which avoids imposing an obligation on the
Government to prove a negative, and giving meaningful practical
effect to the purpose behind Article 15 of UNCAT, namely that
evidence obtained by torture must not be used in legal proceedings.
The Government notes the Committee's view in relation
to the duty on the Special Immigration Appeals Commission (SIAC)
to assess whether evidence before it has been obtained by torture.
The Government has every confidence that the Commission will use
its considerable expertise in properly interpreting and applying
the law as set out in the House of Lords judgment.
our view, the need to use information which has or may have been
obtained by torture could be significantly reduced if the UK intelligence
services took a more proactive approach when establishing the
framework arrangements for intelligence sharing with other intelligence
agencies, by making clear the minimum standards which it expects
to be observed and monitoring for compliance with those standards,
and if there were some opportunity for independent scrutiny of
our view it is essential that the facts about the precise role
played by the UK security and intelligence services in analogous
cases be authoritatively determined through the oversight of the
Intelligence and Security Committee. For the future, the UK security
and intelligence services must take all feasible steps to ensure
that information exchanged with foreign intelligence services
has not been obtained from, and will not be used in, acts which
would be regarded as human rights violations. If this is not done,
such co-operation is likely to imply active or tacit approval
of the use of torture or inhuman or degrading treatment, such
as might render the UK complicit in such acts.
The Government is grateful to the Committee for its
assessment of the challenges faced by the Government in this area.
The Government, including the intelligence and security
agencies, never uses torture for any purpose, including to obtain
information, nor would it instigate others to do so. Our rejection
of the use of torture is well known by our liaison partners. Where
we are helping other countries to develop their own counter-terrorism
capability, we ensure our training or other assistance promotes
human rights compliance.
The provenance of intelligence received from foreign
services is often obscured, as intelligence and security services,
even where they share intelligence, rarely share details of their
sources. Similarly, foreign intelligence and security services
do not welcome close monitoring by other countries or international
bodies of how they gather intelligence. All intelligence received
from foreign services is carefully evaluated. Where it is clear
that intelligence is being obtained from individuals in detention,
the UK agencies make clear to foreign services the standards with
which they expect them to comply. As the Committee acknowledges,
the prime purpose for which we need intelligence on counter-terrorism
targets is to avert threats to British citizens' lives. Where
there is reliable intelligence bearing on such threats, it would
be irresponsible to reject it out of hand.
The Committee cites specific allegations about the
circumstances of the detention of "two British residents"
in Gambia, Mr Al-Rawi and Mr El-Banna. The Government can confirm
that the UK did not request the detention of either of the men
in Gambia and did not play any role in their transfer to Afghanistan
and Guantanamo Bay.
The Intelligence and Security Committee has confirmed
that it is looking into the matter of rendition as part of its
programme. The Government is co-operating fully with its enquiry.
67. We welcome
the Government's decision to review the effect of section 134
of the Criminal Justice Act 1988, and the defences to the crime
of torture contained in it, in order to seek to reflect the UK's
obligations under UNCAT more clearly. We also note and welcome
the fact that the Government no longer appears to be relying on
the argument that the defences are justified by the greater width
of the definition of torture in the 1988 Act than in the Convention.
The Government acknowledges the Committee's comments
on this point, and confirms that the work to review the effect
of section 134 is currently being undertaken.
The armed forces
the application of the Criminal Justice Act 1988 to UK forces
in Iraq (subject to the defences available under the Act, which
have been considered above) is likely to satisfy the requirement
of the Convention for the criminalisation of acts of torture,
the Government has not expressly accepted the application of other
rights and duties under UNCAT to territory controlled by UK forces
abroad, in particular the duty to prevent torture, the duty not
to return detainees to face torture, and the duty to investigate
allegations of torture. We recommend that the Government should
expressly accept the application of all of the rights and duties
in the Convention Against Torture to territory under the control
of UK troops abroad.
The Government does not accept the Committee's recommendation.
In giving effect to UNCAT, the UK made torture a criminal offence
under section 134 of the Criminal Justice Act 1988, irrespective
of where and by whom it is committed. Members of UK armed forces
are therefore subject to this provision whilst on operations abroad,
including in Iraq and Afghanistan; they, like any other public
official, could be prosecuted for the offence of torture in the
English courts in respect of their conduct abroad.
The Government is not however obliged, or indeed
able, to implement the provisions of Article 2 of UNCAT in Iraq
or Afghanistan in relation to the public officials or citizens
of those countries; that is a matter for their own governments.
For example, there is no UNCAT obligation on the United Kingdom
to take effective legislative measures to prevent acts of torture
in Iraq or Afghanistan because these are not territories under
UK jurisdiction; indeed, the UK has no ability to do this.
concur with the conclusions of [the House of Commons Foreign Affairs]
some British personnel have committed grave violations
of human rights of persons held in detention facilities in Iraq,
which are unacceptable. We recommend that all further allegations
of mistreatment of detainees by British troops in Iraq, Afghanistan
or elsewhere be investigated thoroughly and transparently
The Government supports the Committee's recommendation.
We condemn all acts of abuse and have always treated any allegations
of wrongdoing brought to our attention extremely seriously. Where
there are credible grounds to suspect that a serious criminal
offence has been committed by service personnel, Service Police
will investigate. Where there is enough evidence to provide a
realistic prospect of conviction, and criminal proceedings are
in the public interest, there will be a prosecution. The armed
forces must uphold the law, and be seen to do so.
Serious offences are investigated by the Special
Investigations Branches of the Service Police force. They are
operationally independent and conduct their investigations in
accordance with statutory powers and procedures closely based
on those which apply to civilian police forces. The Service Prosecuting
Authorities, who decide whether cases referred to them should
be prosecuted before a court-martial, are independent appointments
under statute and are subject to the general superintendence of
the Attorney General. Courts-martial have been held to be independent
and impartial for the purposes of Article 6 of the European Convention
on Human Rights. Nonetheless the Armed Forces Bill, currently
before Parliament, seeks to further improve the transparency of
the investigation process.
We conclude that it is essential that
wherever there are overseas detention facilities, those responsible
for detainees must have adequate training. We recommend that the
Government review its training of and guidance to agency personnel,
officers, NCOs and other ranks on the treatment of detainees
to ensure that there is no ambiguity on what is permissible.
The Government fully supports the conclusion that
adequate training and guidance must be provided to personnel responsible
for detainees overseas. All such training is already subject to
regular reviews. As a result of the Ministry of Defence "Lessons
Learned" process since 2003, a number of improvements to
the training and doctrine affecting detention facilities have
already been implemented to address shortcomings; these include:
- the inclusion of theoretical
and practical aspects of prisoner handling in all infantry officers'
and soldiers' courses;
- enhanced training in custody and detention doctrine
for Royal Military Police (RMP) and other required soldiers and
officers to enable them to take over responsibilities for detainees
outside of the Theatre Detention Facilities;
- enhanced and more specialised training for those
staff who are to operate the Theatre Detention Facilities; and
- the production of a DVD, "Prisoner Handling
on Operations", to support training which emphasises the
procedures for handling detainees of all categories and the commanders'
In addition, all training is subject to routine reviews
by training sponsors. Consequently, in the last 15 months, the
Armed Forces Policy on the Law of Armed Conflict (LOAC) Training
(specifying the requirements for LOAC training for all military
personnel throughout their careers, and including aspects of prisoner
handling) has been revised. Furthermore, a new Defence Policy
on Individual Pre-Deployment Training has been issued, which ensures
that more coherent refresher and theatre-specific training is
provided immediately prior to an operational deployment.
We are confident, therefore, that current training
ensures that all personnel are trained sufficiently to handle
any prisoners they may encounter in the course of their duties,
and to ensure that there is no ambiguity as to what is and is
not permissible, with those most likely to come into contact with
detainees receiving additional specialist training.
As part of routine business, the recent changes to
training will be evaluated to confirm they remain fit for purpose,
and training will be subject to ongoing regular review to ensure
it remains aligned with any future lessons learned. In view of
the significant changes that have occurred in the last three years
and the regular ongoing review and evaluation of the training
of all involved in prisoner handling, the Government does not
accept the need for a further specific review of this training.
80. In the
context of this inquiry we requested that further relevant documents
be supplied to us. The majority of these documents were provided,
on a confidential basis, and in some cases partially redacted,
in February 2006. The sole unclassified document amongst those
we asked to see was the aide memoire issued to service personnel
on deployment to Iraq. We have reviewed the documents provided
to us on a confidential basis and we accept broadly speaking,
but with certain reservations, that they provide a basis for human
rights compatible action by the armed forces. However, we note
with concern, as it is a matter of public record, that training
and guidance documents do not refer to the Convention Against
Torture, or to the Convention rights enshrined in the Human Rights
Act, but confine their reference to the Geneva Conventions. Irrespective
of the Government position on the legal application of UNCAT obligations
to territories outside the UK which are under its control, we
consider that, as a matter of good practice, training and guidance
should contain information on the Convention against Torture and
the obligations it imposes.
The Government welcomes the Committee's comments
on the wide ranging training and guidance documents provided to
them. The Government notes the Committee's comments on references
to UNCAT in training documents, and work is in hand to address
that. The new UK doctrine on Prisoners of War, Internees and Detainees
(JDP 1-10), which provides the framework for armed forces training
on these issues, contains specific reference to UNCAT as well
as wider reference to certain UNCAT obligations. Further, the
Manual of the Law of Armed Conflict (JSP 383) includes numerous
references to the prohibition against torture. Specific references
to UNCAT will be included in the next edition.
All our training is continually reviewed and the
scope for referring to UNCAT specifically in aspects of the Law
of Armed Conflict training will be considered as part of those
forthcoming reviews. However, specific references to UNCAT in
related training material will not always be appropriate. For
any relevant training or guidance material, the overriding objective
must be to ensure that the message that torture is prohibited
is conveyed. How this is best done will depend on the level at
which the training is aimed and the environment in which it is
provided. Practical training, to which much of the documentation
provided to the Committee relates, will not always lend itself
to citing the sources of specific legal obligations (for example,
whether enshrined in a particular treaty or piece of domestic
legislation). The primary aim must be to ensure that Service personnel
understand what those legal obligations are and how to comply
82. We are
grateful to the Ministry of Defence for providing us with sight
of a range of documents relating to the training and guidance
provided to the armed forces on the treatment of detainees and
civilians. We are also grateful to them for drawing to our attention
the Joint Service Publication 383: The Joint Service Manual of
the Law of Armed Conflict, a public document which has replaced
the Manual of Military Law Part III. We regret, however, that
the Ministry does not feel able to declassify at least some of
the material contained in these documents, so as to inform the
debate and provide some reassurance on a matter of significant
Joint Service Publication 383 The Joint Service Manual
of the Law of Armed Conflict (2004), from which the training provided
to the Armed Forces on the Law of Armed Conflict derives, is published
by Oxford University Press in both hardback
and softback copy. The
doctrine on Prisoner of War, Internees and Detainees (JDP 1-10)
and the Aide Memoire on the Law of Armed Conflict (JSP 381) are
also both unclassified and are in the public domain. Together
these documents provide the framework for related training provided
to the armed forces. The fact that they are in the public domain
provides transparency in terms of the common standards and the
legal framework within which UK armed forces operate. Other documents
that remain classified do so for reasons of operational security.
94. From our
immediate perspective of examining the Government's compliance
with its obligations under UNCAT, we consider that there is no
need for a full public inquiry into the circumstances of the deaths
at Deepcut in order to meet those obligations, and we therefore
agree with the recommendations of the Blake Review and the House
of Commons Defence Committee on the matter. We note with interest
the recommendation made both by the Review and by the Defence
Committee that a Commissioner of Military Complaints (Armed Forces
Ombudsman) should be established to provide independent supervision
of the discipline and complaints system, and we will consider
this matter further when we scrutinise the Armed Forces Bill currently
The Government welcomes the Committee's comment.
The Deepcut Review looked carefully at the question of a public
inquiry before concluding that one was not required. The Review
concluded that there was no evidence of collusion, cover up, breach
of legal duty of care, or any other failure to foresee or prevent
any individual death. The Review also concluded that there was
no reason to believe that any avenues of investigation were outstanding
or that new relevant information relating to the deaths could
now come to light. The House of Commons Defence Committee came
to a similar conclusion last year in its Duty of Care report.
Given the extensive investigations that have taken place, the
Government shares these views and sees no need for a public inquiry
to be held.
The Government accepts the Deepcut Review's objective
that there should be independent assurance that the procedures
are working as effectively as they can, and that systemic issues
of concern are addressed. To address these concerns, we have proposed
independent, external inspection and review of the military justice
system and the military complaints system, together with independent
members on Service complaints panels dealing with complaints of
bullying and harassment. To this end, the Government has brought
forward amendments to the Armed Forces Bill to provide for a Service
Diplomatic assurances against torture
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" 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]". The Commission concluded that in such circumstances
Council of Europe states should not rely on assurances against
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.
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.
The Government notes the concern expressed by the
Committee. However, it appears to the Government that, in arriving
at its conclusions, the Committee has concentrated on the two
cases it mentions, and has not given any weight to instances where
diplomatic assurances have been obtained in non-national security
cases, and where there is no suggestion that the removal has resulted
in a contravention of the removing state's obligations.
The Committee's analysis also appears not to take
account of the appeal procedures which apply in the case of deportation
from the UK, and for which there was no equivalent in the two
cases cited by the Committee. The Government is not aware of any
instance where courts have held that assurances are inherently
unreliable. Instead, it takes the view that the proper approach
is for any assurances given by the authorities in the destination
country to be assessed in the same way as any other relevant evidence
in judging whether or not there are substantial grounds for believing
there is a real risk of torture or other inhuman or degrading
treatment or punishment in a particular case.
The Government does not accept the contention that
reliance on assurances in any way undermines the obligation not
to deport someone where there are serious grounds for believing
that the person concerned will face torture or ill-treatment in
the destination country. Neither does the Government accept that
the fact that the Memoranda of Understanding themselves do not
specify enforceable remedies renders them either unreliable or
The Government believes that these Memoranda of Understanding
make it possible to secure assurances which will provide effective
safeguards and ensure that removals are consistent with the UK's
international obligations, including those under the ECHR. The
Memoranda of Understanding provide protection that is more specific
than international human rights agreements, and include provision
for independent monitoring after return: the assurances relate
to the named individuals and refer to the specifics of their treatment
The Government believes that assurances given on
a government-to-government basis cannot be treated lightly. They
represent an additional commitment and so provide an additional
level of protection over and above international human rights
The expectation must be that States will comply with
any assurances given on that basis in bilateral international
agreements. Failure to comply with formal political commitments
in a Memorandum of Understanding or similar international instrument
can seriously damage diplomatic relations, and will harm a State's
Any assurances provided under these Memoranda of
Understanding or similar international instruments are likely
to be the subject of intense scrutiny and considerable long-term
interest to the international human rights community. This acts
as a further safeguard against any breach of assurances.
Investigation of deaths involving the security
137. We and
our predecessor Committee have registered our concern on a number
of occasions about the delays in implementing the ECtHR judgements
in respect of these cases [McKerr, Shanaghan,
Jordan, Kelly, McShane, and Finucane],
and about the impact of the In re McKerr judgment. Most recently
we drew attention to them in a progress report on implementation
of Strasbourg judgments. We reiterate those concerns here.
welcome the establishment of the Historical Enquiries Team, which
we consider will play an important part in enabling people in
Northern Ireland to come to terms with the Province's recent history,
thus improving the prospects for reconciliation in the years to
The Government is committed to dealing with the past
in Northern Ireland in order to enable the whole community to
move forward. A total of £34 million, of which the Historical
Enquiry Team has been allocated £24.2 million, has been provided
to help provide resolution where possible to the families of victims
affected by these deaths, whether through judicial or non-judicial
It has always been acknowledged that given the time
that has passed for a number of cases, the number of prosecutions
expected from the review of unresolved deaths is likely to be
small. However the Historical Enquiry Team plays a vital role
in working with the families of victims to answer their questions
and provide them with information in a way which commands the
confidence of the wider community.
Deaths in custody and prison conditions
the evidence we have received it seems that the Government and
the prison authorities in Northern Ireland may well now be seized
of the urgent need to provide decent conditions for women in detention.
If this is the case we expect the new approach to have been translated
into significant improvements by the time the UK's next periodic
report to CAT is due.
As Shaun Woodward explained when he appeared before
the Committee, there have been a number of significant developments
in relation to improving conditions for women prisoners in Northern
Ireland. The Northern Ireland Prison Service will continue to
build on that work, which includes robust progression of the action
plan developed to respond to the recommendations by Criminal Justice
Inspection Northern Ireland/ Her Majesty's Chief Inspector of
The Governor and staff at Hydebank Wood have been
working closely with the Northern Ireland Human Rights Commission
which has been conducting follow-up research at the prison. The
outcome of this is expected soon. In the meantime, improvements
have been made in areas such as policy development, working practices
and staff-prisoner relationships. There are now increased opportunities
for constructive activities and out-of-cell time, and women in
custody are now eligible for working outside the prison. Furthermore,
the prison has formed partnerships with non-prison organisations,
a development that has increased the range of opportunities available
Levels of self-harm amongst women prisoners are reducing,
and significant improvements have been made to the physical environment,
including the installation of in-cell sanitation in all rooms.
On the issue of providing a separate prison for women, the Prison
Service has already indicated that Ash House at Hydebank Wood
may not be the best long term option for women prisoners. Alternatives
are being looked at as part of an ongoing strategic review of
the Prison Estate.
The Northern Ireland Prison Service is committed
to openness and transparency, and to protecting and promoting
the human rights of all prisoners. It welcomes the involvement
of the Human Rights Commission and other external agencies in
achieving its objectives.
Over the past nine months, there has been much interest
in the subjects of "rendition" and "extraordinary
rendition". The term "rendition" is not defined
in law, but is used here to describe the transfer of a person
from one jurisdiction to another outside the normal processes
of extradition and deportation. The term "extraordinary rendition",
which also has no legal definition, is used here to describe the
unlawful transfer of individuals to places where there are substantial
grounds to believe that they would face a real risk of torture.
The UK Government has not approved and will not approve
a policy of facilitating extraordinary rendition. Were the UK
asked to assist another State in a rendition operation and our
assistance would be lawful, the Government would base its decision
on a careful consideration of all the circumstances of the case.
Whether or not a rendition would be lawful would depend on the
specific facts of each individual case, including the domestic
law and international obligations of the countries concerned.
The Council of Europe's Parliamentary Assembly Special Rapporteur,
Dick Marty, reached the same conclusion in his report of 7 June
2006, referred to below.
The Government has made it clear that it has found
no evidence of detainees being rendered through the UK or Overseas
Territories since 11 September 2001, and since 1997 no evidence
of detainees being rendered through the UK or Overseas Territories
where there were substantial grounds to believe there was a real
risk of torture. As the then Foreign Secretary, Jack Straw, said
in a Written Ministerial Statement on 20 January 2006, records
show that the US requested permission to use UK airspace or facilities
on four occasions in 1998 and that permission was granted in response
to two of those requests but refused in the other two. In the
two cases where the request was granted, the individuals were
transferred in order to stand trial for terrorism charges in the
US and were subsequently convicted.
As explained in the Foreign Secretary's Written Ministerial
Statement of 20 January 2006, the Government has made clear to
the US authorities:
1. that we expect them to seek permission to
render detainees via UK territory and air space (including Overseas
2. that we will grant permission only if we are
satisfied that the rendition would accord with UK law and our
international obligations; and
3. how we understand our obligations under UNCAT.
The Government is clear that the US would not render
a detainee through UK territory or airspace without our permission.
recommend that the Government should take steps to require staff
and passenger lists to be provided to the UK authorities when
chartered civil aircraft land at UK airports, or transit UK airspace.
In the long term, if effective unilateral Government action is
not taken, there would be a case for amendment of the Chicago
Convention, to require the provision of passenger lists.
A range of agency-specific powers already exist to
allow the Police Service, the Immigration Service and HM Revenue
and Customs officials to request crew and passenger lists from
chartered civil aircraft landing at UK airports. These powers
exist under Schedule 7 to the Terrorism Act 2000, as amended by
sections 118 and 119 of the Anti-terrorism, Crime and Security
Act 2001; Paragraphs 27(2), 27B and 27C of Schedule 2 to the Immigration
Act 1971; and sections 35(1) and 64(2)(b) of the Customs and Excise
Management Act 1979.
Further information provisions in the Immigration,
Asylum and Nationality Act 2006 (sections 31 to 39) build on these
existing data capture and sharing capabilities. These additional
provisions, which will be commenced in Spring 2007, will pave
the way for more comprehensive access to data and enhanced integrated
working between the police, the Immigration Service and HM Revenue
and Customs - the border agencies - where the benefits of specified
travel-related information can be maximised through the effective
capture of data through a "single window" and the routine
sharing and joint analysis of pooled information.
Passenger information is the keystone of the e-Borders
programme, a cross-cutting initiative co-ordinated by the Home
Office in partnership with the other border agencies. The programme
aims to modernise and integrate the management of passenger information
to expedite the movement of legitimate passengers while helping
to safeguard the United Kingdom against serious and organised
crime, terrorism and illegal immigration. The programme intends
to move towards the routine and comprehensive capture of data
on passengers and crew when they disembark in or depart from the
UK on air, sea and rail services.
It is not intended at this stage routinely to require
the details of arriving passengers or crew, including those on
chartered civil aircraft to which this recommendation relates,
unless they intend to disembark in the UK. However, the relevant
agencies can make specific requests for information relating to
a particular flight, or take other appropriate investigative action,
if they have any reason to suspect that that flight might be being
used for unlawful purposes or where the information is otherwise
necessary to support their respective operations.
The effective implementation of passenger and crew
information powers will help the police and other border agencies
gain essential intelligence on the movement of known terrorist
suspects and criminals, and will help them to build up a better
picture of suspect passengers, travel patterns and networks. The
Government is satisfied that the extent and intended application
of the powers available are sufficient to ensure that the police
are able fully to investigate any potential offence relating to
flights using UK facilities.
follows that we do not accept the Government's view that, by the
means described in its response to the Foreign Affairs Committee,
it has adequately demonstrated that it has satisfied the obligation
under domestic and international human rights law to investigate
credible allegations of renditions of suspects through the UK
to face torture abroad. In order to satisfy the obligation to
investigate in relation to possible renditions to face torture
which may already have taken place, we believe the Government
should now take active steps to ascertain more details about the
flights which it is now known used UK airports, including, in
relation to each flight, who was on them, and their precise itinerary
and the purpose of their journey. If evidence of extraordinary
renditions come to light from such investigations, the Government
should report such evidence promptly to Parliament.
The UK has researched the question of US rendition
via the UK very carefully. Full searches of relevant records dating
back to 1997 have been conducted within the Foreign and Commonwealth
Office, the Home Office, the Department for Transport and the
Ministry of Defence. The searches have confirmed that there were
four cases in 1998 where the US requested permission to render
one or more detainees through the UK or its overseas territories.
Records show that the Government granted the US request in two
of these cases and refused the US request in the two other cases.
In both cases where the request was granted, the individuals were
transferred in order to stand trial for terrorism charges in the
US and were subsequently convicted.
In November 2005, during the UK's presidency of the
EU, the then Foreign Secretary wrote to the US Secretary of State,
Condoleezza Rice, on behalf of the EU, seeking clarification with
respect to the alleged US detention or transportation of terrorist
suspects in or through EU member states. The US Secretary of State
responded in a statement of 5 December setting out, inter alia,
that the US government does not authorise or condone the torture
of detainees. The statement explained that torture and conspiracy
to commit torture are crimes under US law, wherever they occur
in the world. The Secretary of State also made clear that the
US fully respects the sovereignty of other countries. The Foreign
Secretary subsequently issued a public statement that the government
was clear that the US would not render a detainee through UK territory
or airspace without our permission.
In the interests of transparency, given the intense
public and Parliamentary interest, the UK Department for Transport
and Ministry of Defence have also made available the flight information
held in their respective departmental records, together with flight
plan data supplied by the European Organisation for the Safety
of Air Navigation - Eurocontrol - about the movements of aircraft
allegedly linked to rendition flights, transiting through UK military
and civilian airports since 2001. This information includes the
dates, flight numbers and origin and final destination of the
flights in question. There is no evidence that these flights were
being used for unlawful purposes.
The UK Government has co-operated fully with three
European-level inquiries into allegations of extraordinary rendition
and "secret prisons".
The Secretary General of the Council of Europe
published his report on 1 March confirming that the UK had answered
all his questions. The Government then replied to requests for
further information on 7 April, meeting the Secretary General's
deadline. The Secretary General has now submitted recommendations
to the Committee of Ministers.
The Parliamentary Assembly of the Council of Europe
(PACE) charged Senator Marty, Chair of its Legal Affairs and
Human Rights Committee, to carry out an investigation into rendition.
His final report was released on 7 June.
In late January the European Parliament voted
to set up a Temporary Committee of Inquiry. Its interim report
was published on 15 June and the committee met in plenary session
on 5 and 6 July. The temporary committee will now continue its
work for a further 6 months with visits to Member States. On 5
October, the Rt Hon Geoff Hoon MP, Minister for Europe, met a
delegation from the temporary committee. Representatives of the
Home Office, Ministry of Defence and Department for Transport
also attended. Mr Hoon explained the Government's policy on rendition
and answered all the questions put to him. The Government will
continue to co-operate fully with the Committee.
Neither the 7 June PACE report nor the Temporary
Committee's 15 June interim report contained new evidence in respect
of the UK. The Foreign Affairs Committee's fourth report on "Foreign
Policy Aspects of the War against Terrorism" published on
2 July concluded that although there has been speculation about
the complicity of the British Government in unlawful rendition,
"there has been no hard evidence of the truth of any of these
We have no evidence to support the allegations that
particular aircraft have been carrying individuals subject to
extraordinary rendition whilst passing through UK airspace.
In the absence of evidence of extraordinary renditions
through UK territory or airspace we do not see a basis for a separate
investigation as provided for by Article 12 of the Convention
Against Torture. The obligation in Article 12 of CAT to hold a
prompt and impartial investigation is not engaged as there are
no reasonable grounds to believe that an act of torture has been
committed in any territory under UK jurisdiction, whether or not
one accepts the view put forward by Liberty and JUSTICE that the
act of extraordinary rendition itself may amount to torture.
170. For the
future, in addition to the steps which the Government has taken
to make its position on extraordinary renditions clear to the
United States authorities, we believe the Government should establish
a clear policy as to the action to be taken in cases where aircraft
alleged to have been previously involved in renditions transit
the UK. Where there are credible allegations arising from previous
records that a particular civil aircraft transiting UK airspace
has been involved in renditions, and where the aircraft is travelling
to or from a country known to practise torture or inhuman or degrading
treatment, it should be required to land. Where such an aircraft
lands at a UK airport for refuelling or similar purposes, it should
be required to provide a full list of all those on board, both
staff and passengers. On landing, it should be boarded and searched
by the police, and the identity of all those on board verified.
Wherever appropriate, a criminal investigation should be initiated.
Where an aircraft suspected of involvement in extraordinary renditions
identifies itself as a state aircraft, it should not be permitted
to transit UK airspace, in the absence of permission for UK authorities
to search the aircraft. We consider that these steps are not only
permitted by the current law, but required to ensure full compliance
with the Convention Against Torture.
The Chicago Convention 1944 permits States to take
action where there are reasonable grounds for concluding that
aircraft are being used for purposes inconsistent with
the Convention. However, the recommendation would require action
to be taken on the basis of (a) the identity of the aircraft (i.e.
if it was alleged to have been involved in extraordinary rendition
at any time in the past, regardless of the basis for the allegation
or of whether its circumstances, including, for example, its ownership,
have changed materially) and (b) its current flight plan. The
Government does not agree that an allegation that an aircraft
may have been involved in the practice of extraordinary rendition
in the past would justify requiring that plane to land and be
searched when re-entering the UK or UK airspace. If individuals
are suspected of committing criminal offences, or if there are
reasonable grounds to suspect that aircraft are being used
for unlawful purposes, then action can be taken; but the Government
does not accept that the steps proposed by the Committee are required
The extent of any engagement of the UK's responsibilities
and obligations would therefore depend on the facts and circumstances
of each case.
Use of AEPs in Northern Ireland
the evidence we have heard about the diminished risks of injury
arising from the use of AEPs in comparison with previous versions
of baton rounds, we recommend that the army should actively consider
switching to a practice of use of AEPs in public order situations
outside the UK.
The Government notes the Committee's recommendation.
However, the Committee should be aware that Attenuating Energy
Projectile (AEP) rounds are not currently used outside of Northern
Ireland because work has yet to be concluded to confirm acceptable
performance in climatic extremes. This work could take up to twelve
months, after which time a decision will be made on the feasibility
of the use of AEPs outside the UK.
181. The use
of AEPs in Northern Ireland raises clear human rights concerns
in principle. We are of the view that use of AEPs against individual
aggressors in riot situations, but not for riot control purposes,
can be justified in human rights terms as a proportionate response
to serious violence which threatens the lives of police or the
public. Use of AEPs, both generally and in individual cases of
firing, should continue to be subject to close scrutiny to ensure
that these conditions are met. It is important that there is clarity
and consistency in the guidelines which apply to use of AEPs in
Northern Ireland by the police and the army. We also consider
that there is a case to strengthen the guidelines to clarify that
AEPs should only be used in circumstances where live fire could
otherwise be used.
The Government welcomes the Committee's view that
the use of AEPs can be justified in human rights terms as a proportionate
response. All instances of AEP firings are considered very seriously
and steps are taken to ensure they are thoroughly investigated.
The Army guidance and training clearly state that the AEP is not
used for "riot control" in an indiscriminate way. It
is used only to strike a selected individual when absolutely necessary
to dissuade individual aggressors from endangering themselves
and others around them.
The Government recognises that the language used
in Army and police guidance differs. However the very high level
of interoperability demonstrated when the Army support the police
in Northern Ireland indicates that the two are compatible.
The Army use AEP within the strict parameters of
the law and only when absolutely necessary to protect persons
from physical violence. The AEP provides a viable alternative
to lethal force. It will only be used as a proportionate response
to the threat posed to police, soldiers and the general public.
The guidance on the use of AEPs is very clear on this issue of
182. A further
issue relates to the accountability of the army for the use of
AEPs in Northern Ireland. The Police Ombudsman for Northern Ireland
investigates every use of AEPs by the PSNI in Northern Ireland,
but the remit of the Police Ombudsman does not extend to the actions
of the army in Northern Ireland and there is no equivalent body
which routinely investigates each use of AEPs by the army, although
an Independent Assessor of Military Complaints Procedures has
been appointed and has published a report on the firing of plastic
bullets by the army. Members of the public may complain to the
independent assessor where they feel that their complaint has
not been adequately dealt with through the army's internal procedures,
but in practice it appears that complaints have not been brought.
183. Shaun Woodward MP in oral evidence considered
that there was an arguable case for the remit of the Police Ombudsman
to be extended to investigate the use of AEPs by the army in Northern
Ireland, while acknowledging that ultimately this was a matter
for the MoD to consider. We recommend that consideration be given
to extending the Police Ombudsman's remit in this way.
The Army takes steps to ensure that all AEP firings
are thoroughly investigated. It is important to remember that
the military is never deployed under the authority of the Police,
rather through the Military Aid to the Civil Power arrangements,
under the authority of a Defence Minister and further authority
of the Terrorism Act 2000. Therefore the Ombudsman does not have
powers to investigate the military. However, the Army does co-operate
fully with the Ombudsman where appropriate - for instance, where
the military can assist an investigation into Police activity.
The Committee recognised the role of the Independent
Assessor of Military Complaints in its report; details of the
use of AEPs by the Army are reported to the Independent Assessor
on every occasion. He will investigate the firings on the request
of the Government or in response to a complaint. The MoD values
the Assessor's advice and has made improvements to both training
and guidance as a result of his reports. It is encouraging to
note that the number of complaints received by the Independent
Assessor fell by approximately 50 per cent between 2004 and 2005.
It is also worth noting that the PSNI can investigate
any instance where the Army fires AEPs if there is reason to believe
a crime has been committed. This exactly mirrors the position
if live rounds are used. Additionally, every firing of AEP by
the Army is investigated by the Royal Military Police Special
Investigations Branch who are independent of the chain of command.
With the level of existing independent scrutiny,
the Government does not consider that there is merit in extending
the Police Ombudsman's role to investigate the use of AEP by the
Army in Northern Ireland.
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