Allegations of UK Complicity in Torture - Human Rights Joint Committee

Allegations of UK Complicity in Torture - Human Rights Joint Committee Contents

4 The accountability gap

Government response to the allegations and parliamentary accountability

47. We have corresponded with Ministers on a number of occasions over the last year, in order to get answers to questions arising from the allegations we have outlined above. On 26 February, the Foreign and Home Secretaries said:

The Government's position on the use of torture is clear: we unreservedly condemn it. Our policy is not to participate in, solicit, encourage or condone the use of torture or cruel, inhuman or degrading treatment for any purpose. We abide by our commitments under international law, including the UNCAT and European Convention on Human Rights, and expect all other countries to comply with their international obligations. The Government, including the intelligence and security agencies, never uses torture for any purpose, including obtaining information. Nor would we instigate, encourage or condone others in so doing.[61]

Other letters from Ministers, as well as statements in Parliament, have contained slight variations on this theme.[62]

48. The FCO annual report for 2008, published in March 2009, offered a different perspective on the issue of intelligence material which may have originated from torture:

we need to be open in acknowledging challenges and difficult decisions in some areas. One example is the question of the use of intelligence provided to the UK by other countries. The provenance of such intelligence is often unclear - partners rarely share details of their sources. All intelligence received, whatever its source, is carefully evaluated, particularly where it is clear that it has been obtained from individuals in detention. The use of intelligence possibly derived from torture presents a very real dilemma, given our unreserved condemnation of torture and our efforts to eradicate it. Where there is intelligence that bears on threats to life, we cannot reject it out of hand. What is quite clear, however, is that information obtained as a result of torture would not be admissible in any criminal or civil proceedings in the UK.[63]

49. Statements such as these raise numerous questions. Does the Government's policy "not to participate in, solicit, encourage or condone" torture encompass interviewing detainees in between periods of torture, or providing questions to be asked under torture, or lesser forms of mistreatment? Or is the Government's statement of policy carefully crafted to exclude indirect involvement in torture carried out by others, for example by avoiding the use of the words 'complicity' or 'acquiescence'? The FCO annual report appears to bear out Mr Murray's allegations that Ministers are content to at least receive intelligence "possibly derived from torture", particularly where it "bears on threats to life". What does the UK know of the provenance of such material? What efforts are made to investigate how such material was gathered? How much material does the UK receive and rely on which was "possibly derived from torture?"

50. These are important questions of public policy and we appeared to receive the Prime Minister's support in raising these matters with Ministers. During oral evidence to the Liaison Committee, he said, in answer to a question from our Chair, "I think you are right to raise these issues because of the public concern".[64]

51. Nevertheless, our repeated attempts to request oral evidence from Ministers have come to nothing. We wrote to both the Foreign and Home Secretaries on 10 February to ask them both to give oral evidence. They replied jointly on 26 February declining our invitation on the basis that they were "unable to add any further detail to that already provided".[65] We reiterated our request, pointing out the issues on which we wished to receive further detail, in a letter of 17 March but this approach was also rejected.[66] A final request for oral evidence on 12 May was not even acknowledged.[67] The constitutional significance of the ministers' refusal should not be underestimated. Lord Lester has asked each Department, by written question, on how many occasions and in what circumstances ministers have refused to give evidence to parliamentary Select Committees in the last five years. Of 22 departments, 15 departments replied that there were no such occasions; two were not aware of any such occasion; two said that they held no record; the Treasury said the information was not readily available; the Home Office said that it held no record, but it was a rare occurrence; and the Foreign Office said that the information was not held, but there was one occasion when the Foreign Secretary said that he had nothing to add to his written evidence.

52. The Foreign Secretary did appear before the Commons Foreign Affairs Committee, during its annual human rights inquiry, on 16 June.[68] He answered a number of questions about allegations of complicity in torture. He emphasised the need for clarity in Government policy in order to maintain an effective intelligence relationship with countries such as Pakistan.[69] He defended the role of the Intelligence and Security Committee (see para xx below)[70] and said that the Government would not be publishing the "historical" guidance to security services' personnel operating overseas (see para xx below).[71] He also faced questions about US waterboarding[72] and the role of consular officials[73] but declined to answer direct questions on allegations of complicity in torture because of current court proceedings.[74] We note that the Foreign Affairs Committee was able to question the Foreign Secretary on a range of issues associated with torture and shed some light on matters we have only been able to explore in writing, as part of its wider inquiry into international human rights issues. This calls into question the reasons why the Foreign Secretary (and the Home Secretary) should refuse to give oral evidence to us.

53. We have also been disappointed by the partial answers we have received to our written requests for information.[75] For example, Mr Cobain drew our attention to section 7 of the Intelligence Services Act 1994, which provides for the Secretary of State to waive the liability of intelligence service personnel for illegal acts committed abroad in certain circumstances.[76] It has been described by some as the "James Bond" clause.[77] We asked some general questions about the number of authorisations under section 7.[78] Other than for confirmation that section 7 of the Act applies in relation to the functions of the Secret Intelligence Service and GCHQ (and presumably does not apply to the Security Service, although this is not absolutely clear from the Ministers' letter) we were given no further information "for security reasons".[79] The Foreign and Home Secretaries pointed to the 2007 report of the Intelligence Services Commissioner, in which he said that public release of "the number of warrants or authorisations issued to the security and intelligence agencies" would "assist those unfriendly to the UK were they able to know the extent of the work of the Security Service, SIS and GCHQ".[80] As a result, we are no nearer to understanding the purpose of section 7, the sorts of situations in which it is used, and the number of current authorisations than we were beforehand.[81]

54. We also invited the Government to comment on the allegations made to us by Craig Murray but did not receive a response.[82]

55. Twice during 2007 we asked Jonathan Evans, the Director General of the Security Service, to appear before us, after he made a speech to the Society of Editors about the level of threat from terrorism. He declined our invitations and also failed to provide us with the written memorandum we also requested.[83] We renewed our invitation on 27 January 2009, after Mr Evans gave an interview to the press on his work.[84] Mr Evans again offered a "private background briefing on the current threat" but declined to give oral evidence, arguing that "our parliamentary accountability is to the [Intelligence and Security Committee]".[85]

56. We fully accept that intelligence co-operation is both necessary and legitimate in countering terrorism, and that a degree of state secrecy is justifiable in this area. However, there must be mechanisms for ensuring accountability for such co-operation. The allegations we have heard about possible UK complicity in torture in Pakistan, the evidence which has emerged during the legal proceedings brought by Binyam Mohamed and the allegations by Craig Murray that the UK knowingly received evidence derived from torture are all extremely serious matters for which Ministers are ultimately accountable. Our experience over the last year is that Ministers are determined to avoid parliamentary scrutiny and accountability on these matters, refusing requests to give oral evidence; providing a standard answer to some of our written questions, which fails to address the issues; and ignoring other questions entirely. Ministers should not be able to act in this way. The fact that they can do so confirms that the system for ministerial accountability for security and intelligence matters is woefully deficient.

Intelligence and Security Committee

57. When challenged about the parliamentary accountability of the security services, the Government points to the Intelligence and Security Committee (ISC), a committee of parliamentarians established under the Intelligence Services Act 1994. The Foreign and Home Secretaries told us that the members of the ISC "discharge their responsibilities with scrupulous care and impartiality" and that the Committee "does not shy from criticising the Government, and the policies of the Agencies, when it believes criticism is warranted".[86]

58. We have previously drawn attention to the differences between the ISC and a select committee:

the ISC reports to the Prime Minister, rather than to Parliament;
it is staffed by Government employees (including Government lawyers), rather than parliamentary staff; and
its reports are published after redaction, which is often substantial.[87]

Indeed, because the ISC meets in private and its reports are redacted it can be difficult to follow the Committee's work and to understand its reports.

59. The ISC has been the subject of a modest recent reform. On 17 July 2008, following a proposal in the Governance of Britain White Paper, the House of Commons agreed to a new arrangement for appointing members of the ISC.[88] The Prime Minister remains responsible for appointments to the Committee, but the Commons Members are recommended by the House of Commons, on the basis of proposals put forward by the Committee of Selection. These proposals are agreed to without debate, unless at least one Member objects: the House of Commons is thus enabled to debate the membership of the ISC, unless the Committee of Selection's proposals are accepted without comment. We urge Members of the House of Commons regularly to take the opportunity to debate the membership of the ISC, to help ensure that the Committee is subject to frequent scrutiny.

60. The ISC has published a number of reports which touch on the allegations of UK complicity in torture. The Foreign and Home Secretaries drew our attention to two conclusions in the Committee's 2007 report on rendition, which suggest that the security services became aware by mid-2003 of possible mistreatment of detainees by the US and amended their working methods, and began to develop guidance, in order to protect human rights.[89] The report appears to give a full, if somewhat opaque, account of how the security services responded to growing awareness of the changed US policy on rendition and interrogation techniques.[90] Its limitations are exposed by the discussion of Binyam Mohamed's case, however, in which the Security Service's account of his treatment is presented apparently without challenge and relevant extracts of the Director General of the Security Service's oral evidence are so heavily redacted as to make them incomprehensible.[91]

61. The work of the ISC was subject to a debate in the House of Commons on 7 May.[92] Several Members of the Committee alluded to the issue of complicity in torture. The Committee's Chairman, Kim Howells MP, said:

I believe that there are no circumstances where torture can be justified; nor am I convinced that the intelligence that emerges from torture cells is sufficiently reliable to warrant even that most equivocal of justifications - the one that says that torture is valid if it tells us how to find or defuse the ubiquitous ticking bomb. We know also, however, that in this increasingly mobile world … it is vital that the intelligence and security agencies of this country and those of its civilised and trusted allies are properly empowered to co-operate and exchange intelligence. As long as they do that within the laws laid down to guide their work, they should not have to live with the dread that, by the very act of co-operating with a close ally who may subsequently find themselves mired in a human rights abuse scandal, they might be tarred with the same brush.[93]

62. Another member of the Committee, George Howarth MP, said:

It is all to easy to say that one should never have anything to do with any intelligence unless one can be absolutely certain that it has been arrived at by the best possible means and meets all of the very highest standards. In some circumstances one is, frankly, grateful for the information that one gets without asking too many questions about the circumstances in which it was produced.[94]

63. Both of these arguments - the importance of protecting intelligence-sharing arrangements and the 'ticking bomb' scenario in which it is best not to ask questions about the provenance of intelligence - have been advanced by the Government in response to allegations of possible UK complicity in torture. In addition, the Foreign and Home Secretaries drew our attention to passages in the judgments of the Law Lords on the case of A and Others v the Secretary of State for the Home Department where these issues were discussed.[95] Neither argument should be dismissed: intelligence gathering and sharing create challenges and dilemmas for the protection and promotion of human rights which need to be recognised. Our concern is that, taken too far, the intelligence sharing and 'ticking bomb' arguments could justify almost any involvement in systemic torture conducted by other countries, short of actual participation.

64. Mr Howells said that the ISC "has to work within the circle of secrecy, and yet convince the Prime Minister, Parliament and the public that the often clandestine systems, behaviour and operations that are important element of the business of the agencies that we examine are organised and undertaken according to the laws laid down in this country."[96] We agree with this statement of what the ISC has to achieve but we are not confident that the Committee has achieved these aims. In particular, we doubt whether Parliament or the public has been convinced by the ISC that the security services always operate within the law and that transgressions of the law are appropriately dealt with.[97] We would welcome greater transparency in the ISC's proceedings, such as public evidence sessions,[98] but procedural innovations will not be sufficient to convince us, and the public, that the Government is being held to account.

65. The missing element, which the ISC has failed to provide, is proper ministerial accountability to Parliament for the activities of the Security Services. In our view, this can be achieved without comprising individual operations if the political will exists to provide more detailed information to Parliament about the policy framework, expenditure and activities of the relevant agencies. The current situation, in which Ministers refuse to answer general questions about the Security Services, and the Director General of MI5 will answer questions from the press but not from parliamentarians, is simply unacceptable.

66. A good first step would be for the Government to propose to establish the ISC as a proper parliamentary committee, with an independent secretariat (including independent legal advice), which would establish ministerial accountability to Parliament in this area at a stroke. The recent allegations about complicity in torture should be a wake up call to Ministers that the current arrangements are not satisfactory. We look to the Government to respond positively to this suggestion and not to continue to hide behind a wall of secrecy.

Investigatory Powers Tribunal

67. Ministers have pointed us towards the Investigatory Powers Tribunal as the body set up under the Intelligence Services Act 1994 to determine complaints from individuals that their human rights have been infringed by the security services. If the Tribunal upholds a complaint it can order remedial action, including the payment of compensation. The Tribunal is assisted by the Intelligence Services and Interception of Communications Commissioners, both of whom have statutory access to documents and information relating to the matters they investigate and who submit annual reports to the Prime Minister. These reports are laid before Parliament after redaction.[99]

68. We have no reason to question the independence or diligence of the Commissioners or the members of the Tribunal, but information about their work is limited. The reports of the Commissioners, after redaction, give an indication of workload but are not otherwise illuminating.[100] Only five judgments of the Tribunal are published on its website.[101]

69. When Mr Cobain raised the allegations about complicity in torture in Pakistan with the FCO and the then Chairman of the Intelligence and Security Committee, Margaret Beckett MP, both suggested that complaints should be raised with the Tribunal.[102] He has told us that "few of the people who have alleged mistreatment … are able and willing to make complaints to the [Tribunal]. Many of the people to whom I have spoken are, frankly, terrified of reprisals against themselves or against family members in Pakistan".[103] He also noted that the Tribunal does not generally examine complaints brought by third parties.[104] In oral evidence to the Foreign Affairs Committee, the Foreign Secretary said that the Tribunal should not be given the power to investigate complaints brought by third parties, although without clearly explaining the basis for his view.[105]

70. We are concerned that the narrow remit of the Investigatory Powers Tribunal precludes investigation of individual complaints, where complainants are reluctant through fear for their safety or otherwise to approach the Tribunal directly, as well as of systemic issues, where a series of complaints suggests that there are wider problems with the policy or operations of the security services. This latter problem is particularly acute where the Intelligence and Security Committee declines to investigate a set of related allegations, as happened with the Guardian's Pakistan allegations. We have yet to hear evidence from the two Commissioners or the Tribunal and may return to the issue of how the protection of human rights in this area can be enhanced once we have done so.

Guidance on dealing with foreign security services and detention issues

71. The ISC report on rendition states that:

From 2004 it became clear to [the Secret Intelligence Service] and the Security Service that their existing guidance to staff on dealing with foreign liaison services was insufficiently detailed given the increasing requirement to cooperate with foreign services in counter-terrorism operations. They therefore began to expand their guidance, and as elements were finalised they were formally issued to staff.[106]

The Foreign Secretary, in his evidence to the Foreign Affairs Committee, made clear that, prior to 2004, such guidance as existed was "informal".[107] Since 2004, guidance has been "formal and has had a comprehensive legal basis",[108] including "comprehensive legal advice to all officials".[109]

72. As we noted above, the Foreign Secretary has firmly ruled out disclosing what guidance was - and presumably still is - provided to security services' personnel about their dealings with foreign agencies, including the human rights issues they may face, on the grounds that this may prejudice ongoing legal proceedings.[110]

73. On 17 March 2009, the ISC released a press notice disclosing that it had written to the Prime Minister about the alleged complicity of the UK security and intelligence agencies in torture or cruel, inhuman or degrading treatment and made recommendations.[111] The letter was based on "further, in depth, evidence" from the agencies and the FCO and was prompted by "a number of new developments" including new information about the Binyam Mohamed case. The Prime Minister told us that the ISC's letter "addressed issues which remain the subject of legal proceedings and police investigation" and he "must therefore consider carefully before deciding whether and in what form it can be published, and the timing of any publication".[112] The ISC's letter on alleged complicity in torture has yet to be published, over four months after it was submitted to the Prime Minister. We urge the Prime Minister to make its contents public, with the minimum of redaction, as soon as possible.

74. On 18 March, the day after the ISC published its press notice, the Prime Minister made a written ministerial statement to the House of Commons, to announce the following four actions, in order to "protect the reputation of our security and intelligence services and to reassure ourselves that everything has been done to ensure that our practices are in line with United Kingdom and international law":

guidance to intelligence officers and service personnel about the standards applied during the detention and interviewing of detainees overseas will be published, once it has been consolidated and reviewed by the ISC;
Sir Peter Gibson, the Intelligence Services Commissioner, has been invited to monitor compliance with the guidance and report to the Prime Minister annually;
the ISC has been asked to follow-up its reports on detention and rendition; and
potential criminal wrongdoing will be referred to Attorney General, who will consider whether there is a basis for inviting the police to launch an investigation.[113]

75. The Prime Minister told us that "work was underway to provide consolidated guidance to the ISC" and that, after review by the ISC, the guidance would be published "in order to make clear the very high standards which apply". The Government would "aim to keep any redactions that may be necessary for national security reasons to a minimum".[114] We welcome the Government's decision to consolidate and publish guidance to security services' personnel on work in detention and interrogation. We also welcome the Prime Minister's statement that redaction prior to publication will be kept to a minimum.

76. It is not clear to what extent the guidance will be revised during this process. If the process of consolidation and review does not involve substantial revision it is difficult to understand why the Foreign Secretary should categorically rule out publishing post-2004 guidance. We recommend that the Government clarify whether the Government or the ISC will be revising existing guidance as part of the consolidation and review process. We also recommend that the Government should release earlier versions of the guidance, subject to any necessary redaction.

77. We asked the Prime Minister whether Sir Peter Gibson's reports on compliance with the guidance will be made public.[115] He confirmed that Sir Peter will focus on new cases not "cases currently being examined in the courts and elsewhere [which] are historical" and that he would encourage him to "focus on the systemic issues you describe rather than individual cases". On publication, the Prime Minister said Sir Peter "will cover compliance in this area in his published annual reports as Intelligence Services Commissioner".[116] We welcome the appointment of Sir Peter Gibson to monitor compliance with Government guidance to security services' personnel on detention and interrogation issues. We call on Sir Peter to ensure that he publishes as much information as possible on his work in this area in his annual reports, which we look forward to scrutinising.

61 Ev 33-34. Back

62 For example, see the letter from the Prime Minister, p. 53, and letter to the Guardian, Alan Johnson MP, 10 Jul 09. Back

63 Cm 7557, p15. And see oral evidence given by the Foreign Secretary to the Foreign Affairs Committee, 15 June 2009, HC557-ii, Q133. Back

64 Q150. Back

65 Ev 33-34. Back

66 Ev 35-37. Back

67 Ev 38-40. Back

68 The uncorrected evidence (HC 557-ii) is available on the Committee's website (http://www.publications.parliament.uk/pa/cm/cmfaff.htm) . Back

69 Q115. Back

70 Q117. Back

71 Qq 114, 116-18, 129-31. Back

72 Qq 121-26. Back