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

5  The way forward


78. We considered the question of the intelligence services' co-operation with foreign interrogators in our 2006 UNCAT Report.[117] We did so in the light of the finding by the High Court in 2006 that the UK security and intelligence services provided intelligence information about two British residents to the Gambian authorities which then directly or indirectly found its way into the hands of the U.S. authorities, which it is alleged subjected them to torture.[118] We warned then that when working co-operatively with foreign intelligence agents, whether relying on information supplied by them, attending interrogations, or providing information to enable their apprehension or to be used in such interrogations, safeguards are required to ensure that UK officials do not support or become complicit in the use of torture or inhuman or degrading treatment.

79. We recommended that the Intelligence and Security Committee ascertain the facts about the precise role played the UK security and intelligence services in such cases and, for the future, called for all feasible steps to be taken 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. We called for a more proactive approach to be taken by the UK 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 for independent scrutiny of those arrangements.[119]

80. The Government, in its response to our 2006 Report, dismissed the need for any change of approach to intelligence sharing.[120] It again missed our point about passive receipt of information which may have been obtained by torture,[121] repeating the now familiar formula that "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." It said that all intelligence received from foreign services is carefully evaluated, and that 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.

81. Since then, as we have documented in this Report, a disturbing number of credible allegations of UK complicity in torture have emerged, and none of the existing accountability mechanisms have come anywhere close to answering the questions raised or ensuring that the relevant information is placed in the public domain. We conclude this report by attempting to summarise the most significant questions which remain unanswered, identifying the most important documents which ought to be published, and making recommendations as to the form of inquiry which we consider is now necessary to get to the bottom of these serious allegations about the UK's disregard for one of the most fundamental norms of customary international law, the prohibition against torture.

Key unanswered questions

82. The allegations about UK complicity in torture which we have summarised in this report raise a number of important questions to which satisfactory answers have yet to be provided. Each allegation raises detailed factual questions about the conduct of UK officials in relation to the individual in question and it is clearly of the utmost importance that these factual questions be properly inquired into and the facts satisfactorily established as to what actually happened in each case.

83. In addition to these detailed factual questions, however, the allegations of complicity, taken as a whole, raise a number of unanswered questions of a more systemic nature, which go to the heart of whether UK agents and ministers have, wittingly or unwittingly, been complicit in torture carried out by other States. It is vital that these questions be answered if lessons are to be learned for the future. In our view, these more systemic questions fall into four broad categories:

(1) questions concerning both the state and date of knowledge of UK agents and ministers about the treatment of detainees by foreign intelligence services, e.g.

(2) questions concerning the content of relevant UK policies/guidance about involvement in torture, e.g.

  • What instructions/guidance existed before January 2002 for intelligence personnel concerning the standards to be applied in relation to detention and interviewing of detainees overseas?
  • What did the January 2002 instructions for SIS and Security Service Personnel say?
  • How was the policy changed in April or May 2004 following the disclosure of the abuse at Abu Ghraib?
  • Were any further changes made to the 2002 policy before the Prime Minister's announcement on 18 March 2009 that it is subject to review?
  • What changes are now proposed to the policy?
  • What does the current FCO Consular Guidance, which instructs staff to ask detainees whether they have suffered abuse and mistreatment and to look out for signs of mistreatment, say?[123]
  • What does the current FCO general guidance to staff, on how to respond to allegations of mistreatment or torture, say?[124]
  • Have any changes been made to that guidance since 9 September 2001?
  • What changes are currently being contemplated to that guidance?
  • Are there, or have there been, any other relevant policies/guidance?

(3) questions concerning what legal advice about the relevant human rights standards was given in relation to those policies, e.g.

  • Was legal advice sought before the drawing up of each of those policies/instructions?
  • If so, who gave legal advice in relation to them: service lawyers, departmental lawyers or the Law Officers?
  • What legal advice was given about the relevant human rights standards before the adoption of each of those policies?
  • What if any consideration was given to UNCAT generally, Article 4 of UNCAT specifically and the principles of state responsibility for complicity in internationally wrongful acts in drawing up each of those policies?
  • who will provide legal advice about the relevant human rights standards to the current review of policy announced by the Prime Minister on 18 March?

(4) questions concerning which ministers knew what about those policies, e.g.

  • Which minister(s) approved the content of each of the relevant policies?
  • Which ministers were aware of the content of those policies?

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:

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

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