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At one level, it is unworkable given the intrinsic difficulty of proving the negative that the information had not been obtained by torture. In the vast majority of cases, a definitive assurance would not be possible. Rather than going into an unnecessarily long explanation, it would be better to look at the detailed consideration of such matters by the House of Lords in its judgment in the case of A (FC) and others (FC) (Appellants) v Secretary of State for the Home Department (Respondent) (2004). I think it will suffice to say that trying to prove a negative does not have the quality of certainty associated with good law-making.

Another reason why the proposal is unworkable is that the intelligence and security agencies often carry out their work under considerable time pressure. The sheer bureaucracy that would be created by this proposal would impede the rapid acquisition and dissemination of what could be time-critical intelligence.

Furthermore, the volume of information involved would make such a proposal impractical to implement. Such a requirement would hamper the intelligence and security agencies in doing their vital work and would divert valuable resources away from it. In fact, the burden would be so great that intelligence services would be forced to disclose information under existing provisions without relying on or getting the benefit of Clauses 19, 20 and 21.

Last and, I hesitate to say, least, there is the issue of why the noble Lords who tabled this amendment framed it so that information given to the intelligence services by individuals in Scotland would require certification concerning torture when information from individuals in England and Wales would not. I shall leave them to explain their thinking.

I started by saying that the Government have sympathy in the aims that appear to lie behind the amendment. Let me make clear the position in regard to torture. I make no apology for repeating what has been said here, and elsewhere, earlier. The security and intelligence agencies do not participate in, solicit, encourage or condone the use of torture or inhumane or degrading treatment. For reasons both ethical and legal, their policy is not to carry out any action that they know

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would result in torture or inhuman or degrading treatment. There is also the pragmatic reason that one can put little store by what is got out of someone being tortured because he will say whatever comes into his head and, if he has nothing, he will tell something.

UK policy on torture is very clear: we unreservedly condemn the use of torture and take allegations of mistreatment very seriously. We abide by our commitments under international law, including the UN convention against torture and the European Convention on Human Rights and expect all other countries to comply with their international obligations.

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 prosecutions of individuals believed to have been involved in torturing others.

The provenance of intelligence received from foreign services is often obscured. Where it is clear that it has been obtained from individuals in detention, such intelligence is very carefully evaluated. The prime purpose for which we need intelligence on counterterrorism targets is to avert threats to British citizens' lives. Where there is reliable intelligence bearing directly on such threats, it would be irresponsible to reject it out of hand. If we fail to do everything in our power to protect the lives of our people, that will be a fundamental abdication of our responsibility as a Government.

For the reason that I have given, I believe that the amendment must be rejected.

The Earl of Onslow: I find the noble Lord’s reasoning compelling; it seems to need to make complete sense. Those at Bagram air base, the Pakistani joint intelligence service and the Syrians are people from whom we all get information. In those places, there has been well documented evidence of ill treatment. The Americans have certainly used waterboarding, which President Bush says is not torture; we say that it is. I leave those questions hanging in the air, because the implication is obvious. These people have reputations for behaving rather badly. Would the noble Lord like to comment before, I hope, the noble Lord, Lord Dubs, withdraws the amendment?

Baroness Manningham-Buller: Like the noble Lord, I believe that the members of the security and intelligence services, for whom I do not speak, would be in sympathy with the thinking and tenor of the amendment. We all abhor torture. Some of what has now become apparent about its use since 9/11, in particular, was not apparent at the time. That has required the intelligence and security services to rethink how they do a number of things, because of the possibility of torture as a result of their inquiries, for example.

That is a serious issue that causes tremendous concern among my former colleagues. Dealing with it is a practical point. It may help the Committee in thinking about the issue if I pick up the point made by the Minister about scale. If we receive a piece of information from an unnamed country that we suspect—or, indeed, know—to have practised torture once a week or once a fortnight, it becomes almost impossible to get the sort of assurances required to ascertain exactly how that information was obtained and, as far as possible,

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to ensure that it was not obtained by torture, given that we have thousands of pieces of information a week. So, rather than dealing with each specific piece of information, it is essential to have, as exist, policies designed to be compatible with the law and ethically defensible to deal with countries that we know or suspect of using torture.

We can only approach this in that generic fashion, because to do it specifically, case by case, would lead us to the bureaucratic problems to which the Minister referred. I assure the Committee that, of the many issues that concerned me when I was director-general of the service, the possible use of torture by our allies and its effect on the morale of my staff was my top concern.

Lord West of Spithead: In answer to the noble Earl, Lord Onslow, I do not think that it would be appropriate to respond here; perhaps we could have a private discussion at some stage. I am quite restricted in what I can say.

Lord Dubs: I am grateful to all Members who have taken part in this short debate. I am aware that the noble Baroness, Lady Manningham-Buller, although she does not speak for the service, speaks with a great deal of knowledge. Those of us who have tended to make rather glib statements will have to be more careful in future, as we have to be when the noble Baroness, Lady Neville-Jones, is here. We can no longer make these sweeping statements because they are watching us.

This is a serious issue, and I very much appreciate my noble friend’s forthright condemnation of torture. That is absolutely fundamental. I suppose that many of us were shocked when our American friends started justifying waterboarding as a legitimate practice rather than a form of torture. I think that everyone in the Committee would say that waterboarding is a form of torture. Our concerns were heightened because we felt that if our American friends are prepared to justify a form of torture, we must be doubly careful that we remain absolutely clear.

I appreciate the point about the volume of information and excessive bureaucracy. Nevertheless, I am grateful for my noble friend’s forthright statement of condemnation, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 [Disclosure and the intelligence services: supplementary provisions]:

Lord Dubs moved Amendment No. 28:

28: Clause 20, page 15, line 42, at end insert “, or

(c) breaches—

(i) the Human Rights Act 1998,

(ii) the UN Convention Against Torture, or

(ii) any other relevant international obligation concerning the disclosure and use of information.”

The noble Lord said: This amendment, too, stems from discussions in the Joint Committee on Human Rights. Clause 20(2) says:

“Nothing in that section authorises a disclosure”,

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and mentions two bits of legislation, the Data Protection Act and the Regulation of Investigatory Powers Act; so those must be adhered to.

The amendment simply seeks to add certain other bits of legislation on a par with the ones that have already been mentioned. I believe the Minister will say that these are not necessary. If itemising the Human Rights Act and the UN convention against torture is not necessary, why are we including the Data Protection Act and the Regulation of Investigatory Powers Act? If we mention two bits of legislation in this clause, why cannot we mention others just to be on the safe side? I am not quite clear what the logic is. I beg to move.

Lord West of Spithead: My noble friend Lord Dubs has shown me the error of my ways in getting people fully briefed before these events. They then know what I am going to say, which is an issue.

The amendment is unnecessary, as nothing in Clause 19 authorises, purports to authorise or can reasonably be taken to authorise a breach of the Human Rights Act 1998 or a breach of the UN convention against torture. Proposed new paragraph (iii) refers to “relevant international obligation”, which could have such a wide application that without further qualification no one could be sure what is included and what is excluded.

As I have said before, passing laws that have no effect is generally held to be bad law. This in no way decries or diminishes the importance of the Human Rights Act or the convention against torture, which we feel are extremely important. However, if we were to follow the logic proposed here, we could add a long list of criminal offences that Clause 19 did not authorise. The Government, when drafting Clause 20, thought it was helpful clarification to say that nothing in Clause 19 affects the working of the Data Protection Act or the

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Regulation of Investigatory Powers Act. It could be said that these, too, were unnecessary, as my noble friend said. They were included because they were cited in parallel provisions that relate to SOCA in the Serious Organised Crime and Police Act. One reason behind Clauses 19 to 21 is to place the intelligence services on to a similar statutory footing to that of SOCA in the disclosure of information. That is why we did it. I hope that, with that explanation, my noble friend will feel that the amendment is unnecessary.

Lord Dubs: I am grateful for my noble friend’s explanation. It is 90 per cent okay—perhaps that is churlish of me—but I am grateful to him. I hope that he will not stop his officials briefing us. I would not want to think that I had abused my conversation with his officials by telling my noble friend what he was going to say. It is very useful to have a chance to talk to officials. Please do not let my letting the cat out of the bag be a reason for not doing it in the future. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 agreed to.

Schedule 1 agreed to.

Clause 21 agreed to.

Lord Brett: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Children and Young Persons Bill [HL]

The Bill was returned from the Commons with amendments. It was ordered that the Commons amendments be printed.

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