Key unpublished documents
84. Some of the key unanswered questions that we
have identified above will only be satisfactorily answered by
the publication, to the fullest extent possible consistent with
national security, of a number of key documents which so far the
Government has refused to place in the public domain.
85. As we indicated in chapter 4 above, these include
all versions of the instructions/guidance given to intelligence
officers and security service personnel concerning the standard
to be applied in relation to the detention and interviewing of
detainees overseas:
- any such guidance which existed
prior to January 2002;
- the January 2002 version;
- all subsequent changes to that policy; and
- the draft currently being considered as part
of the review announced by the Prime Minister on 18 March 2009.
86. Article 10 of UNCAT requires the UK to ensure
that education and information regarding the prohibition against
torture are fully included in the training of law enforcement
and other personnel who may be involved in the interrogation or
treatment of any individual subjected to any form of arrest, detention
or imprisonment. In its most recent report on UK compliance with
the UN Convention Against Torture (in 2004), the UN Committee
made a number of recommendations, including that the UK:
ensure that the conduct of its officials, including
those attending interrogations at any overseas facility, is strictly
in conformity with the requirements of the Convention and that
any breaches of the Convention that it becomes aware of should
be investigated promptly and impartially …
87. The Prime Minister has already indicated that
the new guidance will be published, once it has been consolidated
and reviewed by the Intelligence and Security Committee. We asked
the Prime Minister for an opportunity to comment on a draft of
this guidance, given our expertise on the relevant human rights
standards, but he refused in his letter of 18 June. We are puzzled
as to the reasons for this refusal, given the Government's intention
to publish the final version. We recommend that the Government
publish immediately all versions of the instructions/guidance
given to intelligence officers and security service personnel
concerning the standard to be applied in relation to the detention
and interviewing of detainees overseas, including the current
draft being considered by the Intelligence and Security Committee,
to ensure that it fully and correctly reflects the UK's human
rights obligations.
88. Other key unpublished documents are copies of
the relevant legal advice given to the Government about the relevant
human rights standards concerning torture and complicity in torture.
As we mentioned above, there is already in the public domain
the memorandum from the Senior Legal Adviser to the Foreign Office,
Michael Wood, dated 13 March 2003, which says:
Your record of our meeting with HMA Tashkent recorded
that Craig had said that his understanding was that it was also
an offence under the UN Convention on Torture to receive or possess
information under torture. I said that I did not believe that
this was the case, but undertook to re-read the Convention.
I have done so. There is nothing in the Convention
to this effect. The nearest thing is Article 15 which provides
[for the inadmissibility in evidence of any statement which is
established to have been made as a result of torture.].
This does not create any offence. I would expect
that under UK law any statement established to have been made
as a result of torture would not be admissible as evidence.
89. We accept, as Professor Sands pointed out in
his evidence to us, that this short memo responding to a specific
query should not be treated as a formal, fully reasoned legal
advice. However, we are concerned that this response from the
Foreign Office's most senior lawyer makes no mention of the requirement
in Article 4(1) UNCAT that States criminalise "complicity
or participation in torture". As Professor Sands commented:
"In a formal and limited sense Mr Wood's response is correct,
but it seems not to address the issue in the round. … there
may be circumstances in which the receipt or possession of information
that has been obtained by torture may amount to complicity in
torture, within the meaning of Article 4(1)."
90. The memo from the Foreign Office Legal Adviser
raises a number of important questions. As Professor Sands also
said in his evidence, it may well be that Sir Michael Wood, other
lawyers or the Law Officers address the meaning and effect of
Article 4 of UNCAT in other more reasoned opinions, but this memo
does not address that and therefore "it does not give a complete
answer."[125]
We do not know whether other, more reasoned advices were given
to ministers or to the intelligence and security services. It
is important, in our view, to ascertain whether the Government
was ever advised as to the possibility that systematic reliance
on information which may have been obtained under torture risks
at some point crossing the line into complicity in torture for
which the UK would be responsible under the relevant legal standards.
91. In the United States, President Obama has placed
the relevant legal opinions from the Department of Justice in
the public domain in order to assist congressional and public
scrutiny of the US Government's former policy in relation to interrogation
of detainees. These include the four notorious "torture
memos", published by the US Government on 16 April 2009,
which contain detailed accounts of the "enhanced interrogation
techniques" used on certain detainees, including waterboarding
and the use of insects in confinement boxes for detainees with
a fear of being stung. On releasing these advices, the President
said "it is our intention to assure those who carried out
their duties relying in good faith upon legal advice from the
Department of Justice that they will not be subject to prosecution."
92. We asked the Home and Foreign Secretaries to
follow the US example, by publishing all relevant legal
opinions provided to ministers concerning the use of information
which may have been obtained by torture, and in particular any
opinions concerning Article 4 UNCAT.[126]
They refused, on the basis that "it is not the Government's
normal practice to publish internal legal advice, as Legal Professional
Privilege attaches to such advice …. This is in order to
ensure that full and frank legal advice can be given, in the interests
of good governance."[127]
93. We do not accept, in this instance, that it
is "in the interests of good governance" for the Government
to refuse to waive its legal professional privilege by publishing
the relevant legal advice. On the contrary, we consider that
good governance demands it and that the Government's invocation
of legal professional privilege is another disappointing example
of resort to state secrecy to prevent proper parliamentary and
public scrutiny of an issue of great public concern.
94. In a public lecture on The Rule of Law in 2006,
Lord Bingham, the recently retired Senior Law Lord, was critical
of the Government's reliance on legal professional privilege as
the reason for not publishing the Attorney General's legal advice
on the lawfulness of the Iraq war. He said:
There seems to me to be room to question whether
the ordinary rules of client privilege, appropriate enough in
other circumstances, should apply to a law officer's opinion on
the lawfulness of war: it is not unrealistic in my view to regard
the public, those who are to fight and perhaps die, rather than
the government, as the client. If the government is sued for
damages in negligence for (say) injuries caused by an army lorry
or a mishap in a military hospital, I see no reason why the ordinary
rules of client professional privilege should not apply. …
An opinion on the lawfulness of war, the ultimate exercise of
sovereign power, involving the whole people, seems to me to be
quite different. And the case for full, contemporaneous, disclosure
seems to me even stronger when the Attorney General is a peer,
not susceptible to direct questioning in the elected chamber.
95. Although Lord Bingham acknowledged that "this
is not an accepted view", it could be said that his view
was ultimately vindicated: the Attorney General's advice on the
legality of the war was eventually, following great public pressure,
published.
96. We regard Lord Bingham's "public interest"
exception to the Government's legal professional privilege to
apply with equal force here. There is great public concern about
whether the UK has been complicit in torture conducted by other
States. The legal advice which the Government received about
the relevant human rights standards is central to the inquiry
into whether there was such complicity and if so who is accountable
for it. The United States Government has shown the way by publishing
the relevant legal advice given by the Department of Justice,
in order to assist the ongoing inquiries into the US's policy
on the treatment of detainees. We call on the Government to
follow the American example by immediately putting into the public
domain all relevant legal opinions provided to ministers. These
should include any opinions concerning the relevant legal standards
on torture and complicity and the implications of those legal
standards for the Government's policies on the use of information
which may have been obtained by torture and the sharing of information
with foreign intelligence services. They should also include
any relevant opinions concerning Article 4 UNCAT and the general
principles of state responsibility for complicity.
Inquiry or prosecution?
97. On 26 March 2009 the Attorney General announced
that she had decided to invite the Metropolitan Police to investigate
the allegations of possible criminal wrongdoing in one of the
cases of alleged complicity, that of Binyam Mohamed. This followed
the judgments of the High Court in the civil proceedings in that
case. One of the matters which it is likely that the police and
the Crown Prosecution Service are considering is whether or not
criminal charges should be brought against "witness B"
in that case, who is an intelligence officer who interviewed Mr.
Mohamed in Pakistan pursuant to the Government's then policy.
98. During the recent debate on overseas torture
in the House of Commons,[128]
David Davis MP contrasted the American approach to the UK's approach
to the subject of torture: whereas the Americans have been open
in publishing the details of their policies and made clear that
junior officers who were acting in accordance with those policies
will not be prosecuted, the UK has done the opposite. The policies
remain secret and there is, apparently, a police investigation
into whether charges should be brought against a relatively junior
intelligence officer who was implementing the policy.
99. We share Mr. Davis's concerns about the way in
which the Government is currently dealing with the allegations
that it has been complicit in torture. We do not consider that
the possibility of prosecutions should be ruled out, but nor do
we believe that a criminal investigation is, at this stage, the
best way to get to the bottom of the many unanswered questions
that these allegations raise. In view of the large number
of unanswered questions, we conclude that there is now no other
way to restore public confidence in the intelligence services
than by setting up an independent inquiry into the numerous allegations
about the UK's complicity in torture. Decisions on possible
prosecutions should await the outcome of any such independent
inquiry.
100. A model for such an independent inquiry exists
in the shape of the Canadian Arar Commission, an independent body
with a judicial chair and security cleared lawyers, which investigated
similar allegations of complicity by Canadian agencies in the
rendition and torture of a Canadian citizen, including by the
provision of intelligence information to the US by Canadian police.[129]
We met some members of the Commission during our visit to Canada
in 2005 in connection with our work on Counter-Terrorism Policy
and Human Rights.[130]
We were impressed by its work. The Commission's remit required
it to investigate and report on the actions of Canadian officials
in relation to Mr. Arar and also to make recommendations about
an independent, arms-length review mechanism for the police's
activities with respect to national security. The Commission
made a number of recommendations, including some concerning increased
independent scrutiny of the security services and intelligence
agencies.
101. We recommend that the independent inquiry
which is set up to investigate allegations of UK complicity in
torture should also be required to make recommendations about
improving the accountability of the security and intelligence
services, and removing any scope for impunity, having regard to
the recommendations recently made on this subject by bodies such
as the UN Special Rapporteur, the Eminent Jurists Panel of the
International Commission of Jurists, and the Council of Europe.
102. We also recommend that any inquiry should
also look into whether there was any connection between the UK
Government's controversial view of the limited territorial scope
of application of UNCAT on the one hand[131]
and the adequacy of its guidance to its intelligence and security
operatives on the other. [132]
117 UNCAT Report, above, n.1, at paras 57-60. Back
118
Al-Rawi v Secretary of State for Foreign and Commonwealth Affairs
[2006] EWHC Admin 972. Back
119
UNCAT Report, above, n.1, at para. 56. Back
120
Thirtieth Report, Session 2005-06, Government Response to the
Committee's Nineteenth Report of this Session: The UN Convention
Against Torture (UNCAT), HL Paper 276, HC 1714, at p. 9. Back
121
See para. 39 above and UNCAT Report, above, n.1, at paras
55-56, where we expressed the view that "the fundamental
importance of the obligations on the UK concerning torture makes
it incumbent on the intelligence services to move beyond the essentially
passive stance towards the methods and techniques of foreign intelligence
agencies." Back
122
Professor Sands' evidence (Q181) was that he thought it was probably
as early as 7 February 2002: "I would be astonished if the
British Government did not know the full details of that change
of [US] policy because they were already at that point involved
in joint operations in Afghanistan. They must have known that
a different standard was being applied in relation to the treatment
of detainees." Back
123
Referred to in Ev 40. Back
124
Ibid. Back
125
Q157. Back
126
Ev 38. Back
127
Ev 40. Back
128
HC Deb 7 July 2009 cc 940-43. Back
129
Report of the Events Relating to Maher Arar: Analysis and Recommendations
(Commission of Inquiry into the Actions of Canadian Officials
in relation to Maher Arar, 2006). Back
130
See Twenty-fourth Report, Session 2005-06, Counter-Terrorism
Policy and Human Rights: Prosecution and Pre-charge Detention,
HL Paper 240, HC 1576 at para. 151; UNCAT Report, above,
n. 1, at para. 60. Back
131
UNCAT Report, above, n.1, at paras 69-73; Government response
to UNCAT Report, above, n. 121, at p. 10. Back
132
The UK Government maintained its position that UNCAT does not
apply to the actions of its agents overseas, long after even the
Bush administration had explicitly accepted that UNCAT has extra-territorial
application: see e.g. statement of US Secretary of State Condoleezza
Rice at Andrews Air Force Base, 4 December 2005. Back
