Joint Committee On Human Rights Thirtieth Report


Appendix


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

26.  Whilst 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 and respected.

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 these obligations.

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 UK.

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.

41.  …We 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) [2005] 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.

56.  …In 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 those arrangements.

60.  …In 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

73.  …Whilst 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.

77.  …We concur with the conclusions of [the House of Commons Foreign Affairs] Committee that:

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.

77. …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' responsibilities.

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 with them.

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 public interest.

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[1] and softback[2] 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 before Parliament.

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 Complaints Commissioner.

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 torture.

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.

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 ineffective.

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 on return.

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 instruments.

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 reputation.

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 forces

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.

144.  …We 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 come.

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 means.

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

147.  …From 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 Prisons (CJINI/HMCIP).

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 to women.

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.

Extraordinary Renditions

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 Territories);

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.

166.  …we 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.

168.  …It 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 allegations".

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 by CAT.

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

180.  …Given 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 proportionality.

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.


1   ISBN 0-19-924454-5 Back

2   ISBN 0-19-928728-7 Back


 
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Prepared 13 November 2006