Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 140-152)


31 OCTOBER 2005

  Q140  Lord Campbell of Alloway: It is all very well, you see—I will leave this, I must not take up more time—but you are going straight across the views expressed by Lord Newton and Lady Hayman when I was asking questions of them some time ago. They virtually said, and I am quoting them because they were an independent inquiry, that you simply could not decide these questions whether you have got to lock somebody up or not and for how long on a security problem without a security cleared judge and without a private session. If you do not accept that, then the whole concept collapses.

  Dr Metcalfe: May I come back on a very important point?

  Q141  Chairman: Briefly.

  Dr Metcalfe: Very briefly, in relation to the closed proceedings that you seem to be suggesting, we are particularly concerned at Lord Carlile's suggestion that they should be using closed proceedings and special advocates. In a House of Lords case in July this year the senior Law Lord, Lord Bingham, made reference to the use of special advocates in situations and proceedings involving the deprivation of liberty, and he expressed doubts whether the use of such special advocates could be held to meet the fundamental duty of procedural fairness. The idea of someone being deprived of their liberty without being able to know the substance of the case against them I think is an extremely serious one, and so for this reason I think the proposal in relation to closed proceedings in bail proceedings is an extremely surprising one.

  Q142 Baroness Stern: We are running out of time, but I do think it is important that we have a moment to look at deportation with assurances. I know this is something you all have views about. You have all criticised deportations on the basis of diplomatic assurances in principle because they circumvent the absolute obligation of non-refoulement, that is, you must not return anyone to a place where there is a substantial risk of torture. I have got four questions. First of all, in your view is it inherently objectionable to deport on the strength of diplomatic assurances regardless of what they are like and how convincing they are? Secondly, would you therefore think that the courts should disregard them entirely, or could they be relevant to the court's assessment of the degree of risk to the person who is going to be subjected to torture on his or her return? Would it be reasonable for courts to examine each memorandum on its merits? The Home Secretary said to us last week that it was "effectively neo-colonial for some lawyers to argue that a government to government agreement with some states is not worth the paper it is written on." Would you agree with that?

  Dr Metcalfe: Very quickly, we do not object to the use of diplomatic assurances in principle, but that is only because in practice they tend to be used in cases not against these kinds of countries. The issue is that in principle they are effective where you have other safeguards and mechanisms that could be looked at, we think it is perfectly right for the court to examine each individual diplomatic assurance on their merits, but taking them on their merits means looking at them in the entire context. They might be perfectly appropriate to use, say, if you were deporting someone back to a country that wanted to join the EU, had already joined the Council of Europe framework, and so forth. It is completely wrong to suggest that they are somehow effective in relation to countries which have all signed up to the UN Convention against Torture but are all known to have breached it. If a country cannot live up to its obligations under an international convention that exemplifies jus cogens, the strongest form of international humanitarian and human rights law imaginable, then why should we believe that they will honour a diplomatic assurance? The criticism that JUSTICE and other organisations have been making primarily is not so much that the diplomatic assurances cannot be effective in some circumstances—we use them to return people to the United States to prevent them from being subjected to the death penalty—but we should not be using them against countries which have such a strong record of torture, and, with respect the Home Secretary of State in relation to neo-colonialism, I am afraid I simply do not buy it.

  Mr Zilli: Could I add a comment on that? I think it is perfectly appropriate and, indeed, it is the duty of the court and of an independent judiciary to consider anything that is put before them, and so if the Secretary of State decides to assert that so and so would not be at risk of torture on the basis of so-called diplomatic assurances that the Secretary of State has been able to obtain, the Secretary of State is perfectly entitled to make that case before the court, but, ultimately, it will be for the judiciary, for an independent judge, to make that assessment, and the assessment has to be on a case by case basis. It will be on the individual case whether the person concerned would actually risk torture or ill-treatment upon return. I think it is interesting to note the remarks made by Mr Justice Ouseley, the Chair of the Special Immigration Appeals Commission, in considering applications for bail I think only 10 days ago. He clearly made a pointed remark implying that he does not think, although he did not comment on the specifics of the diplomatic assurances already obtained, that they are going to get the Secretary of State around the Chahal precedent. Secondly, I would like to point out that comparisons between diplomatic assurances in death penalty cases and cases concerning a risk of torture or, say, a profoundly unfair trial for that matter, are misplaced in Amnesty's view. The death penalty, unfortunately, is still a lawful sanction in international law. That cannot be said to be the case for the risk of torture. The reason why the Secretary of State is seeking to obtain diplomatic assurances is precisely because he recognised, and he has recognised that up for up to three and a half years having detained the same people without charge or trial on the basis they could not be returning to their countries of origin, that there was an existing risk of torture upon return.

  Q143  Mr Shepherd: How can a British judge faced with this issue come to a conclusion? On what basis, that the government of India is giving us an assurance. It is not good enough. It is asking them to leap over, is it not, their normal processes?

  Dr Metcalfe: Not only that, they have a very long experience of doing so, ever since the Immigration Act at least, possibly before. The work of the Administrative Court is very taken up with immigration, judicial review cases and also the work of the asylum adjudicators and so forth, and they have a great deal of fact-intensive experience of examining the conditions in each country, and you get a great deal of reports from organisations such as Amnesty, Human Rights Watch, the Home Office's own country information unit provides them with very detailed information, and a lot of those cases, and in the Chahal case in particular there was very clear evidence that, although the governments of the Punjab and India in general were prepared to give these assurances, they seemingly were not in control of what the individual police stations were doing in the Punjab that made it such a risk.

  Q144  Baroness Stern: You will know that the CPT (the European Commission for the Prevention of Torture) said in a guarded little paragraph that it had an open mind about whether it was possible to devise effective mechanisms for post-return monitoring. What in your view would be the minimum conditions that you would expect see in any monitoring system for you to have confidence that the diplomatic assurances were being upheld?

  Dr Metcalfe: I am afraid I do not grant the premise of the question, which is that even if you had the strongest, most effective monitoring procedures that they would somehow prevent the risk of ill-treatment in the countries we are talking about. You had monitoring in the Agiza case, the case of Sweden. They had monitoring when they sent someone back to Egypt, who turned out to be tortured. In fact, they found out he was being tortured because of the monitoring. I do not think that strong, effective monitoring would be a safeguard in this kind of case.

  Q145  Lord Judd: If there is an imminent threat to life are there any circumstances in which it is permissible to use evidence that may have been obtained under torture or which you may have reason to believe may have been obtained under torture.

  Mr Crossman: I am concerned that this confuses somewhat the difference between acting on intelligence and the use of evidence. If the phone goes and you hear there is a bomb planted in the Houses of Parliament and you have reason to believe that has come from a source, or a country, or whatever, where there has been use of torture suspected, you would still act on that intelligence. Of course you would. There is distinction between that and giving something evidential weight in either a criminal or other process against them. I do not think the imminent loss of life situation is really appropriate to a discussion as to the use of torture evidence by the courts.

  Q146  Lord Judd: Are you satisfied that the authorities in this country do everything that they should do rigorously enough to discover whether or not information has been secured under torture?

  Dr Metcalfe: We know that they do not. The Director of the Security Service, Dame Eliza Manningham-Buller, gave a witness statement to the House of Lords' case a couple of weeks ago in which she stated in relation to material that they had received from their Algeria liaison that they do not ask. They do not ask; they perhaps do not want to know.

  Q147  Lord Judd: You are suggesting there is a deliberate policy of not asking?

  Dr Metcalfe: They said, it was not so much a policy of not asking, but they felt that it could endanger fair trial good relations with the foreign intelligence agency. This was in striking contrast to the information that was received in the court from the Deputy Prime Minister—and I will ask my colleague from Amnesty to elaborate—in which the Canadian Security Intelligence Service made clear that it did make such inquiries of its foreign intelligence contacts and that in those kinds of situations they would not receive material where they were satisfied or concerned that they had been obtained contrary to a human rights violation of any kind.

  Q148  Lord Judd: Do you think anything could be done to tighten up investigations in this area and, if so, what?

  Dr Metcalfe: I would certainly commend the Canadian example to the security service and the security intelligence service. I am no expert in those areas, but it seems to me that if one foreign intelligence service of a G8 country is able to make these kinds of inquiries of their foreign counterparts then there is no reason why the United Kingdom cannot do the same.

  Q149  Lord Judd: Do you think that there is a danger that it may be the easy option to use information that may have been obtained under torture? Can you think of ways in which, at least in some instances, other means could be used to deal with the situation apart from relying on such information?

  Dr Metcalfe: I am afraid that seems such a general question that it would have to depend on the kind of situation that you are talking about. I have to say I am not aware of any situation in the United Kingdom where the Government has received information obtained by torture and has then rushed to, say, Blackfriars' bridge to disarm the bomb. If it has, it might be an interesting element of this debate. I do not see that there are at the moment any situations where evidence obtained by torture has been of any use. Of course the difficulty is that we do not know, because the United Kingdom made clear in relation to its Algerian example that it did not ask the question.

  Q150  Lord Lester of Herne Hill: How do you resolve the dilemma that if you have a really evil, dangerous person, but not enough evidence to try them for any serious charge here? They come from a really terrible country that practices torture, you reject the use of international agreements with that country on the grounds that you have explained, even though the country wants them to face trial there, and they are a threat to security here but you cannot lock them up indefinitely without trial. What does the human rights movement say should be done about that person?

  Dr Metcalfe: My own answer to that situation—I am not sure I am able to speak for my colleagues necessarily—but surveillance would seem the obvious answer. The Newton Committee itself stated that when it looked at the issue of deportation as a counter-terrorism measure it could not see the logic in sending someone whom you suspected of being a real threat to national security away from your own jurisdiction. We have all these powers under the law to be able to monitor their personal activities. To send them to another country where you have no effective control over their personal activities . . . .

  Q151  Lord Lester of Herne Hill: I was not asking that question. I was saying what do you do with such a person?

  Dr Metcalfe: I would keep them under 24-hour surveillance with a view to gathering as much evidence as I could against them that would be admissible in a court of law and charge them, or at least refer it to the CPS.

  Mr Welch: I think such a person is very unlikely to exist if you have a full selection of criminal charges available to the prosecution and you have evidence of all types fully available to the prosecution. If intercept evidence was available, I think it is very unlikely that there would be a person who is such a danger that they could not then be prosecuted for a criminal offence in this country and, if found guilty after a fair trial, imprisoned for that offence.

  Q152  Chairman: What if there was such a person? That is Lord Lester's point.

  Mr Welch: If there is, in that very unlikely event, then I am with Eric Metcalfe on this. If there really is such a person, they are such a danger and they cannot be prosecuted, we would have to accept that extreme forms of surveillance would be appropriate. We appreciate it might be very expensive, but that is the price of liberty.

  Mr Crossman: We are talking about surveillance. One of the things about an Article 8 analysis is that it is far more likely, if somebody does constitute that great a threat, that an almost indefinite surveillance could be justified as necessarily and proportionate in those circumstances in the way that, say, Article 5 justification for almost indefinite detention could not be, and so I would say Eric is absolutely right. You asked for the human rights analysis of it, and I think that is the appropriate one.

  Chairman: Thank you very much. You have given us a lot to think about in preparing our report.

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