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Binyam Mohamed

Volume 487: debated on Thursday 5 February 2009

With your permission, Mr. Speaker, I would like to make a statement to the House on the case of Mr. Binyam Mohamed, following the judgment handed down yesterday in the High Court.

The fundamentals of the case are as follows. Mr. Binyam Mohamed, an Ethiopian national formerly resident in the UK, was arrested in Pakistan in 2002. In 2004 he was transferred to Guantanamo Bay. Until August 2007, the Government had taken responsibility for the release and return of British nationals from Guantanamo Bay. In August 2007, my right hon. Friend the Home Secretary and I wrote to then US Secretary of State to seek Mr. Mohamed’s release from Guantanamo Bay and his return to the United Kingdom, along with four other former UK residents. Over the past 18 months, we have mounted what the Court has called a strenuous effort to achieve that objective. We have throughout kept Mr. Mohamed’s family and lawyers informed of his situation and our efforts to resolve it.

The United States brought terrorist charges against Mr. Mohamed in May last year before a military commission. Mr. Mohamed subsequently brought proceedings against the British Government in an effort to secure the disclosure to his legal counsel of any material held by the British Government that might assist the defence of his case before the military commission. Having looked through all the material that we held across government, we provided through the appropriate legal and statutory mechanisms a great deal of both classified and unclassified UK information.

Among the information we held, however, we identified some highly classified US intelligence material. We took the view that the material was potentially exculpatory and ought to be disclosed to Mr. Mohamed’s legal counsel. As this was sensitive US Government material, we informed the relevant US authorities of our view; we also informed Mr. Mohamed’s counsel. We have worked since then to ensure that all the material was, indeed, made available to Mr. Mohamed’s legal counsel by the US Government through their own procedures.

Across the four judgments handed down by the High Court since last August, the Court has explicitly recognised the efforts of the Government both to secure Mr. Mohamed’s release and return, and to ensure that the material that we considered ought to be disclosed to him was, indeed, disclosed. The latter objective was achieved some time ago, when the US Department of Justice disclosed the material to Mr. Mohamed’s counsel in the course of proceedings in the US federal courts.

At the heart of Mr. Mohamed’s case have been allegations that he was tortured by foreign Government officials in a number of locations. It is the long-standing policy of this Government that we never condone, authorise or co-operate in torture. I repeat that commitment today. We also take very seriously all allegations of torture and investigate them fully. Allegations have been made in the course of these legal proceedings that the UK is in some way complicit in the alleged mistreatment of Mr. Mohamed.

Following the Court’s judgment of 22 October, on 23 October last year my right hon. Friend the Home Secretary referred the question of possible criminal wrongdoing to the Attorney-General. That question is now being considered by the Attorney-General. That is, as the Court acknowledged yesterday, the proper democratic and legal process.

Yesterday’s judgment was not about that, however. It was about whether an English court should, in the interests of public debate and understanding, order the disclosure to the general public of sensitive foreign intelligence shared with our own intelligence agencies on the strict understanding that it would not be released. As anyone who has read the judgments will appreciate, in circumstances in which Mr. Mohamed’s access to the information relevant to his defence had been secured, the sole question for my consideration concerned the publication of classified material received from a foreign intelligence service—in this case, the US.

The question at issue was whether intelligence provided on a confidential basis by one state to another, in absolute trust that it will be kept secure, may be disclosed to the public by order of a foreign court, or whether instead, the breach of trust would be so grave as to endanger intelligence-sharing relationships and therefore affect national security. In this case it was US intelligence and an English court, but it could just as easily be British intelligence in a foreign court.

I had before me the clear and unanimous advice of all key UK Departments and agencies. As the Court observed yesterday,

“Intelligence is shared on the basis of a reciprocal understanding that the confidence in and control over it will always be retained by the State that provides it. It is a fundamental part of that trust and confidentiality which lies at the heart of the relationship with foreign intelligence agencies”.

Our intelligence relationship with the United States is vital to the national security of the United Kingdom. It is essential that the ability of the United States to communicate such material in confidence to the UK is protected. Without such confidence the US will simply not share that material with us.

The same applies to our intelligence relationships with all those who share intelligence information with us. And what applies to them also applies to us. We share intelligence with a large number of countries. We do so to protect British citizens, and we do so on the basis that the material will not be put into the public domain against our wishes. To state the obvious, were our own classified information to be disclosed in such a way, it could compromise our work, our sources and therefore our security. It therefore was and remains my judgment that the disclosure of the intelligence documents at issue, by order of our courts and against the wishes of the US authorities, would indeed cause real and significant damage to the national security and international relations of this country.

For the record, the United States authorities did not threaten to “break off” intelligence co-operation with the UK. What the United States said—and it appears in the open, public documents of this case—is that disclosure of the documents by order of our courts would be

“likely to result in serious damage to US national security and could harm existing intelligence information-sharing…between our two governments”.

That is a simple affirmation of the facts of intelligence co-operation and it is worth noting that last night, in response to the High Court judgment, the US National Security Council reaffirmed the long-standing US position concerning the importance of protecting sensitive national security information and preserving the long-standing intelligence-sharing relationship between our two countries.

The Court has concluded that there is no prejudice—I repeat, no prejudice—to Mr. Mohamed’s case as a result of yesterday’s judgment. The information in question is available to his US legal counsel. As the Court said,

“upholding the rule of law…is most unlikely to depend on making the information public”.

The issue at stake is not the content of the intelligence material, but the principle at the heart of all intelligence relationships: that a country should retain control of its intelligence information, and that that cannot be disclosed by foreign authorities without its consent. That is a principle that we neglect at our peril.

Let us be clear at the outset that we are united across the House on so many of the issues that this case illuminates. We all believe that it is right that the Guantanamo Bay detention centre should be closed and that torture is unacceptable under any circumstances. Many of us have criticised the use of extraordinary rendition and the possibility that it can sometimes lead to torture in a third country. The case of Binyam Mohamed illustrates why we have all had those concerns. He has been detained for nearly eight years and has not yet been brought to trial, although he is accused of terrorist offences.

As the Foreign Secretary said, the Government have sought the return of Binyam Mohamed to Britain since August 2007, but the US authorities have declined to release him. May I ask the Foreign Secretary whether he raised the issue of Mr. Mohamed’s return during his visit to the United States on Tuesday? Have the new Administration indicated whether they will now accede to that request? What assessment has been made of any threat that that would present to the public in this country?

The High Court ruled that Mr. Mohamed

“had an arguable case that he had been subject to torture and cruel, inhuman and degrading treatment”

and that the British security services had facilitated interviews of Mr. Mohamed “in the knowledge” of what had been reported to them about his treatment.

In a letter to my hon. Friend the Member for Aylesbury (Mr. Lidington), dated 29 September last year, the then Minister of State, the hon. Member for Pontypridd (Dr. Howells), said that the Government had raised the allegations of torture with the US and “asked them to investigate”. Has the Foreign Secretary received any response from the United States authorities about the outcome of those investigations? In the same letter, the then Minister stated that the Government

“rejects any allegation that UK Security and Intelligence officials have been complicit in torture”.

Can the Foreign Secretary give the same assurance to the House today—that it is still his and the Government’s firm view that there has been no complicity by UK security and intelligence officials in torture?

According to the High Court ruling of August last year, the Government were made aware in 2002 by a UK security official present at the interview of detainees held by the US, including Mr. Mohamed, that detainees

“may not have been treated in accordance with the appropriate standards”.

The ruling contains an extract from a letter sent to that official by his superiors, saying that as the detainees in question

“were not within our custody or control, the law does not require you to intervene to prevent this”.

That may be the case in legal terms, but in moral terms the Government were surely obliged to make the strongest representations to the United States Government against that form of treatment. Were such representations made?

My remaining questions concern the immensely important issue, which the Foreign Secretary has described, of intelligence co-operation between the US and the UK. Will the Foreign Secretary confirm—in a way, he has confirmed it in his statement—that that relationship is unique in the world and of immense value not only to the UK but to the United States? Will he confirm that the disruption of that relationship would have serious consequences for the US as well as for this country?

Lord Justice Thomas expressed dismay at the

“threat of the gravity of the kind made by the United States Government that it would reconsider its intelligence sharing relationship”

with the UK. The Foreign Secretary has reiterated that no threat of that kind was made. Is he suggesting that the Court of Appeal has misrepresented the United States position? Most importantly of all in my view, the Prime Minister’s spokesman said yesterday:

“We have not engaged with the new Administration on the detail of this case.”

Is it correct that the Government have had no discussions with the Obama Administration on this issue?

Looking to how matters should now proceed, consistent with the strong and welcome stance of the new US Administration on torture and with our own views in this House, may I finish by pressing the Foreign Secretary on this point? Should not the view of the High Court that

“the requirements of open justice, the rule of law and democratic accountability demonstrate the very considerable public interest in making the redacted paragraphs public”

weigh heavily with all of us, and with our American allies, particularly if the view of the Court—that nothing in the redacted paragraphs could possibly be described as highly sensitive, classified United States intelligence—is correct?

Given the change of Administration in the US two weeks ago, the changes in policy that have resulted and the changes of personnel in the CIA in the past fortnight, would it not be right to put it to the US Administration that they could change their approach to this case without fundamentally breaching the principle of which the Foreign Secretary has rightly spoken? Would not asking them even now to change their position be a way forward that we could all support in the House?

The right hon. Gentleman is right that the House is united in respect of the closure of Guantanamo Bay, action against torture and the rejection of extraordinary rendition. The Government have taken practical steps to put that into practice.

The right hon. Gentleman’s first and seventh questions related to our engagement with the US Administration about what he called “this case”. I want to be absolutely clear: I did indeed raise the case of the remaining Guantanamo detainees with British residency status when I met Secretary Clinton on Tuesday. I confirmed and reiterated to her that we remain determined to secure their release and return. The right hon. Gentleman may have slightly misspoken; the previous Administration had acceded to that request and the current Administration are continuing to commit themselves to the request for release and return. So Mr. Mohamed will indeed be coming back to the United Kingdom, and that raises precisely the questions of security and the arrangements for that that the right hon. Gentleman led into. I assure him that we are going to make sure that the return of Mr. Mohamed—after eight years, as the right hon. Gentleman says—is done in full accordance not just with his rights but with British security considerations.

In respect of the right hon. Gentleman’s quotation about the “arguable case”, I should say that the investigations of the US system are continuing. The system is, of course, very complicated. First of all there are the military commissions, then there are the federal courts and then there is the decision of the Obama Administration to wind up Guantanamo and the system of military commissions. The right thing to say is that those investigations remain at the heart of cases in the US system and of cases being brought in our system. Those investigations continue.

In respect of the allegations of British complicity, those matters, as my right hon. Friend the Home Secretary made clear on 23 October, are now with the Attorney-General, who is consulting the Director of Public Prosecutions.

The right hon. Gentleman’s fourth question was about the representations that we have made in respect of allegations of torture. He cited one particular case from 2002, and before I answer specifically on that I want to go back to make sure that we give him exactly the right answer. However, our representations in respect of torture have always been clear in public and in private. I give him the example of the debate last year about the question of whether water-boarding constituted torture. We were absolutely clear in public and in private that in our view it did constitute torture, and that it was reprehensible on that basis. I can assure him that the British Government have remained fully engaged on that issue.

In respect of the unique intelligence-sharing relationship, that is indeed very important. The Intelligence and Security Committee has commented on the value of that relationship at various points. I think that the word “threat” was used by the Court of Appeal. Given the facts that I described—that the intelligence-sharing relationship is based on confidentiality, that if another country gave away our secrets that could not but have an implication for the way in which we judged the amount of material to share with it, and that the Americans have made it clear in public documents that they would see serious and lasting harm from the disclosure in our courts of their information—it is clear that the relationship would be affected; but it is the Court that used the word “threat”.

Finally, there is the question of an American decision about what to disclose in public. I emphasise that it must be an American decision. Only they can make a decision about whether sources—their own or others—are compromised by the disclosure, in the same way that only we can make decisions about whether our information, disclosed to the public, would involve the compromise of sources. To that extent, I am not going to join a lobbying campaign against the American Government on this decision. It is a decision that they have to make given their knowledge of the full facts about the sources on which they depend and do not want to compromise. I am clear that our decisions are for us and their decisions are for them.

To that extent, this case hinges not on the content of the redacted paragraphs but on their nature, which is that they are American paragraphs—American evidence—in the same way that our intelligence sources are our property. We have approached the issue on that basis, which is the only basis on which to preserve the confidentiality and trust on which such a relationship depends.

I thank the Foreign Secretary for his statement and for the support that he and his Department have given to Binyam Mohamed.

The Foreign Secretary rightly says that his judgment is on the line—whether to take a threat, and it was a threat, of non-co-operation on future intelligence sharing from our closest ally seriously, or whether to allow information on criminal acts of torture to be published. Will he confirm that the Court makes it clear that the publication of the summary of intelligence reports under question would not have created a security risk to the United States—that it would not have revealed the name of any agent, the location of any secret establishment, or the methods of any intelligence gathering? The truth is that the question of the publication of this summary was not about security and intelligence but about whether to cover up torture, and United States interest in avoiding political embarrassment and potential criminal investigations against its security services. So we have the bizarre situation that this is not a threat to our security from terrorists, but a threat to our security posed by our closest ally over an issue relating to democratic accountability and the rule of law.

Have the British Government not just rolled over in the face of a scarcely credible threat from a friend? Have both this Government and President Bush’s Administration not confused intelligence with abuse, security with the rule of law, and secrecy with cover-up? Why did the Foreign Secretary not make it clear to our American friends that this country’s opposition to torture meant that we would have nothing to do with intelligence gathered that way? Is it not our international legal duty not only to refrain from torture but to bring those who torture to justice—that this country’s long-term security is best protected when we uphold human rights and the rule of law, and when it comes to upholding the values that Britain and America are supposed to share, this country will not be bullied into shabby and shady compromise? Was not President Obama right to say in his inauguration speech,

“we reject as false the choice between our safety and our ideals”?

When the Foreign Secretary raised this with Secretary Clinton, did he ask specifically, as the judges’ final sentence says,

“for the United States government to consider changing its position or itself putting that information into the public domain”?

On the question of whether British security services have been complicit in torture, I hope that the investigations of the ISC and the Attorney-General will provide answers. However, in issuing a public interest immunity certificate in this case, the answer of this House must be that the Foreign Secretary has stood in the way of allowing justice to take its course.

These cases are indeed illuminating, not only of the judgment of Ministers but of the judgment of those who would aspire to be Ministers. Although there was a very large lack of questions in the rant by the hon. Gentleman, I will go through his points.

First, the hon. Gentleman has a fundamental confusion between that which is necessary for justice, which is that the defence counsel has full access to all the documents that are necessary for that justice to be achieved, and the interest—which is a perfectly legitimate one to put—in public debate.

The hon. Gentleman shakes his head, but I am sorry—justice is served by the individual in question having his rights to a proper trial, and that is served by his having full access to the 42 documents that are at issue. The 42 documents that are referred to were given to the defence counsel for Binyam Mohamed in significant part as a result of the representations of this Government. That is the way in which Government are served. When the hon. Gentleman talks, as he did in his first few seconds, about a cover-up of torture, he is neglecting the fact, first, that Binyam Mohamed’s lawyers were given that documentation, and secondly, that the Attorney-General is looking in detail at whether there is anything complicit about the United Kingdom’s role in this case.

Secondly, the hon. Gentleman said—it is worth the House looking at this when Hansard is published—that the threat to our national security came not from sources that we debate often in this House, whether terrorism or elsewhere, but from our closest ally, which the Intelligence and Security Committee has said is critical to saving British lives because of the intelligence that it provides. When he has had a chance to look at his remarks, he will realise that one cannot on one hand quote President Obama’s inaugural speech, and deny on the other hand what his National Security Council says. I am happy to stick by what President Obama said. The National Security Council, which sits in the White House, speaks for the US Government—

The hon. Gentleman shouts that we have not asked them. They made a public statement last night about this case, and they have been absolutely, resolutely clear about this case.

Finally, the position of the Government in never condoning, co-operating in or authorising torture is absolute, and our fulfilment of our international responsibilities in that respect, moral and legal, is absolute. That is why we never condone, co-operate in or authorise torture, and why any allegations thereto are taken with the utmost seriousness and investigated by the highest legal authorities in the land.

Order. As many Members are clearly hoping to catch my eye, could I please ask for single questions, not statements, and perhaps concise replies?

As my right hon. Friend is aware, Binyam Mohamed was resident in my constituency. I would like to put on record the fact that I am grateful for the very regular and extensive briefings that I have had over the past year from Foreign Office officials. Of course, these allegations are of the gravest kind and warrant legal and parliamentary scrutiny. It is also true that Mr. Mohamed is very frail and very sick. We were led to believe very recently that his release was imminent. What urgent steps is my right hon. Friend taking to ensure that my constituent is released from illegal detention and returned to this country as soon as possible?

We are pursuing his return at the highest level, including in discussions with Secretary Clinton and with the appropriate US authorities. I understand the urgency that my hon. Friend has brought to this case. We share that sense of urgency, and we are working as fast and as hard as we can. It is not only she who has paid tribute to that—the lawyers for Binyam Mohamed have also written to us about the efforts of Foreign Office officials to ensure his return to the UK.

May I assure the Foreign Secretary that I entirely accept the points that he has made about the need to be sensitive with intelligence sharing, for the reasons that he has outlined? None of us is so naive as to think that it would be sensible to do anything but that. However, when he and the Attorney-General have finished investigating allegations of British complicity with unlawful rendition and torture—if that is what he is doing—if there is a case to be answered, will it be answered in public, not subjected to some form of secret process?

The hon. and learned Gentleman speaks with some authority on these matters. The case now before the Attorney-General relates to the allegation of complicity and torture—it is not a case of rendition. The Attorney-General has been brought in on the basis of the representation made by the Home Secretary as soon as the Court issued its judgment in October. I want to get the precise legal processes clear, but I assure him that it will be done according to the law of the land and under the way in which processes are set out to defend the rights of the individual and British justice in this case.

Given that my right hon. Friend informed us that confidentiality in the handling of information between agencies is a cornerstone of all intelligence relationships—especially the one between this country and its most important ally, the United States—and that, as the judges say, release of the information at issue here would come through not the United Kingdom but the United States, will he confirm that allegations about the complicity of our agencies in this case must be referred to the Investigatory Powers Tribunal, which is the only body with the legal power to investigate fully any allegation of misconduct by the UK agencies? Does he accept that the Intelligence and Security Committee’s continuing investigations into our agencies’ policy in respect of the US rendition programme may be helped if we were given the 42 documents mentioned by the judges? The ISC, my Committee, has not yet seen them, contrary to what the judgment says.

Absolutely. I think that I am right in saying that anyone can make representations to the tribunal, and that remains the case, but the Home Secretary has referred the matter to the Attorney-General, and since last summer, when these documents came to light, the Foreign Office has attempted at every stage of the development of this case to keep the ISC informed in a full and open way, and that is our determination for the future.

What the Foreign Secretary has been saying today seems almost entirely inconsistent with what was said by the judges yesterday. He said that the information that they want to reveal is highly classified secret intelligence. They say in terms, in paragraph 68, that it could not possibly be considered as

“highly sensitive classified US intelligence”.

He says in absolute terms that it is covered by secrecy requirements of intelligence sharing—we all understand the basis of that. They reiterate the argument of the special advocates, which says that there can be

“no confidentiality in evidence tending to show the commission of a crime”,


“the redacted paragraphs should be made public”,

and that

“To do otherwise would be to conceal the gist of the evidence of serious wrongdoing by the United States which had been facilitated in part by the United Kingdom Government.”

That is the substance of the argument today.

The question that the Foreign Secretary must answer is this: did he, or did he not, give the judges reason to say no fewer than eight times—not once, but eight times—that there was either a threat or a grave threat of intelligence being withheld either in his public or secret representations? He has reiterated a point today, from paragraph 11 of his own public immunity application, when quoting a letter from John Bellinger, which says in terms that the public disclosure of this information

“could harm existing intelligence information-sharing arrangements between our two Governments.”

Is that, or is that not, a threat, and will he please seek to get it lifted?

The end of the right hon. Gentleman’s question belied the beginning of it. The end of his statement showed the absolute consistency of what I said in my representations to the Court and in the case that I have made in the House today. The issue at hand is a simple one. Highly classified information was sent by the US, which is highly classified because of its contents, but the point at issue that I and the Court had to address is that intelligence sharing is based on a principle. It is based on the nature of the relationship that we have, and the nature of that relationship is not dependent on one cable or another, but on the fact that if another country cannot have confidence that its secrets are safe with us, it will not share its secrets with us in an open and transparent way with the relevant authorities.

In the same way, I am sure that if our secrets were disclosed in a foreign court—dare I say, in another European court—against our wishes, the right hon. Gentleman would be up in arms, rightly in my view, protesting against the invasion by a foreign court of our right to keep our sources secret. If he reflects on his position, and not just on mine, he will see that the inconsistency is his rather than mine.

I thank the Foreign Secretary for his statement and for the strenuous efforts made by the Government on behalf of Mr. Mohamed. He mentioned several times the investigation by the Attorney-General, and she has had this case before her for the past three months. In view of the public interest in this matter, can either he or the Home Secretary contact the Attorney-General to see whether the process can be completed as quickly as possible?

I am sure that the Attorney-General will not have failed to notice the public interest in this case during the past 24 hours, or failed to notice the representations made by my right hon. Friend today. In case she has, I will be sure to draw them to her attention.

Following on from that question, and the two earlier ones on exactly the same point, why does not the Foreign Secretary confirm that when the Government receive the advice from the Attorney-General sought by the Home Secretary on 23 October, they will make it available to the ISC, and to the House and the public generally, given what is now the public nature of the entire process?

On that issue, incidentally, we are also waiting to hear from the Government about the recent Information Tribunal ruling against them—again—on making available the then Attorney-General’s advice and the Cabinet minutes relevant to the decision on the war on Iraq. Do the Government intend to appeal on that matter to the High Court, or to apply a veto under existing freedom of information legislation?

As the right hon. Gentleman says, it was worth a try, but probably not worth a response. We will come back to that matter on another occasion.

In respect of the earlier parts of the right hon. Gentleman’s remarks, it is dangerous for one non-lawyer to tell another non-lawyer about the legal situation, but he referred to “advice” from the Attorney-General. That is not correct. The Attorney-General has to decide whether there is a case for prosecution, so it is a question not of whether advice should be published, but of whether steps should be taken on the basis of a decision by the Attorney-General, as the highest legal authority in the land. I hope that the right hon. Gentleman was not under any misapprehension about what I said earlier. The Government’s commitment to the ISC—which has been repaid in full by the ISC in the way in which it has treated the information that we give to it—is to be full and open in our disclosures to it, and where information is of a highly sensitive nature, it is not published but the ISC do see it and scrutinise it. That must be the right way of working.

On the potentially exculpatory material to which my right hon. Friend referred, would he at least go as far as to say, in general terms, whether it included evidence of torture? If so, that would fit the pattern of the cogent evidence that the Joint Committee on Human Rights received on Tuesday afternoon about allegations of torture committed by the Pakistan security services, and the complicity of UK agents in that. Although my right hon. Friend may see no evil and hear no evil, that does not mean that the evil of torture does not exist. Would he ensure that the JCHR gets full co-operation in our inquiry into UK compliance with the requirements of the United Nations convention against torture in these matters?

I am sorry if my hon. Friend sees the referral of an allegation of mistreatment to the Attorney-General, the highest authority in our land, as a “hear no evil, see no evil” approach. The suggestion of the evil of torture is what has prompted the referral to the Attorney-General, who can then decide whether there is a case for criminal prosecution of the individuals involved. Far from this matter ending up on a shelf, the Attorney-General will decide where to take it.

My hon. Friend showed through his early comments that this area is extremely complex and one where broad-brush statements have to be chosen with great caution. I say to him that the material is highly classified and that the aspects of complicity in torture elsewhere are published in the appropriate legal documents, and I refer him back to those.

The Foreign Secretary will of course be aware that Mr. Binyam Mohamed is one of, I believe, two British residents who are still left in Guantanamo Bay. There are suggestions that the other several dozen prisoners should be removed from United States soil and dispersed around welcoming countries elsewhere. Will he tell the House what the British Government’s position on that is, and whether they have yet received any requests from the Obama regime?

We have not received such requests. When I spoke to the new US Secretary of State on Tuesday, I explained to her what we had done and that we expected two further former British residents to come back to the UK. In the words that I used at the European General Affairs Council last week, I explained that we had “done our bit” by bringing back 13 residents, which will become 15, but that we wanted to play our part in helping other countries to fulfil their commitment to helping the US close Guantanamo Bay.

I promised my European Foreign Minister colleagues last week that we were happy to share our experience of bringing those people back, and I can tell the hon. Gentleman that a number of European countries have already asked for our help on that. We want to help them do it, because they recognise their need to help the Americans close Guantanamo Bay.

The judges argued yesterday that it was

“difficult to conceive that a democratically elected and accountable government could possibly have any rational objection”

to placing on record

“a summary of what its own officials reported as to how a detainee was treated by them”.

The Foreign Secretary has said that he has spoken to Hillary Clinton, but is he prepared to ask President Obama personally for permission to release that information; otherwise, people in this country will continue to question the secrecy that surrounds the decision?

My right hon. Friend shares with the Government not just a very strong commitment to upholding human rights around the world but the belief that where there has been error, there should be openness as a way of trying to remedy it, at least in part. However, she asks in what circumstances continued secrecy is appropriate. It is when sources would be compromised by their release. It is for each country to determine the circumstances in which public release, not release to the defence counsel, would prejudice that position. That is the right and pragmatic approach to this case.

There are several paragraphs in the judgment that are extremely important for all of us to bear in mind, particularly for the Foreign Secretary. It states that it is

“difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing”

the appropriate information

“into the public domain…we did not consider that a democracy governed by the rule of law would expect a court in another democracy to suppress…evidence”


“allegations of torture…politically embarrassing though it might be.”

Will he therefore act on the suggestion of my right hon. Friend the shadow Foreign Secretary and ask for a specific exception to be made in this case from the US Administration?

I have genuine respect for the way in which the hon. Gentleman has developed an interest in, and followed in great detail, the issue of rendition over the past few years. I think that he has said that he has taken it up with some surprise, not having expected it to be so close to the centre of his work, and I have genuine respect for him on that basis. However, I refer him to the answer that I just gave to my right hon. Friend the Member for Cynon Valley (Ann Clwyd) in respect of the paragraph that he has cited. Also, as I said earlier, I am not going to join a lobbying campaign—[Hon. Members: “Why not?”] Because the Obama Administration—

No, my job is to take decisions. It is the hon. Gentleman’s job to offer opinions, it is our job to take decisions.

I am not going to join a lobbying campaign for a very simple reason. The Obama Administration have made clear not just their abhorrence of torture but their determination to do everything that they can to change the image of the United States around the world in this respect. They have a choice to make about whether to release many aspects of intelligence, in the same way that we do. They will not release it if it compromises their sources, and they will certainly not accede to its release through a foreign court. That is the right approach.

The new Administration have made clear, in a way the hon. Gentleman will probably argue that the previous Administration did not, their determination to clear the name of the United States. In that context, it is right to give them the scope to make a decision about all the issues that they face, which are far from confined to this particular case. I remind the House that there are a number of outstanding legal issues in the United States system on such issues, and every case has to be seen in that context.

Is my right hon. Friend aware that for many of us, the core of the matter is simply Mr. Mohamed’s claim that he was cruelly tortured abroad and that British security agents knew about and colluded in what occurred. If that is so—I note what the Foreign Secretary has said about the Attorney-General’s inquiries—surely the values and the rule of law of which this country and the House are so proud were betrayed. That is the seriousness of the issue, and we obviously want an answer as quickly as possible.

I agree with my hon. Friend. These very important issues raise not just political and moral questions but judicial ones. A matter of potential criminal wrongdoing has been referred to the Attorney-General, so it is right that we allow her to come to her conclusions as quickly as possible, as my hon. Friend says.

I recognise the Foreign Secretary’s role in arguing for British residents to return to the UK, as he is well aware, and I thank him for it. However, I am very disappointed to hear him repeat that he will not join in a lobbying campaign to get allegations of torture released into the public domain. Does he not recognise that it is the job of the Foreign Secretary to argue for British interests and values abroad? He says that he is against torture, so surely he should be using every power at his disposal to ensure that allegations and evidence of torture are put into the public domain.

There is a fundamental confusion over the position of the US Government. Far from denying that they are against torture, they are celebrating the fact that they are against it and want to do everything that they can to ensure that it is expunged from the rhetoric and role of the United States. Secondly, I am sorry to have to repeat to the hon. Lady that there remains a fundamental distinction between justice for individuals and the general public interest in the public revelation of secret information. We have to make that decision about our own information, and the US will make it about the information that it holds on the basis of whether it believes it furthers its goal of campaigning against torture, which we share.

Does my right hon. Friend share my concern that the former US Administration were prepared to use torture to extract information from detainees—information that, by definition, must be unreliable—yet ignored reliable information provided by one of the UK’s top agents, Michael Shipster, through his long-standing source at the highest level of the Iraqi Government, that the Iraqi Government did not have weapons of mass destruction? That information also provided a credible explanation for Saddam Hussein’s reluctance to admit that.

I was with my hon. Friend for the first half of her question. The differences that existed between this Government and the previous Administration were discussed widely, specifically on whether water-boarding constituted torture. Those differences were exemplified by the position that the Government took, which I think was shared elsewhere in the House, that it did. Our position is absolutely clear: we are signed up to international conventions and covenants, never mind national laws, in that respect. I think that the Iraq question is for another day.

As one who believes that the Foreign Secretary has made a wise judgment and given the House a balanced statement, and who expects our Foreign Secretary to lead, not to lobby, may I nevertheless ask him for two assurances? First, will he make it abundantly plain that the Intelligence and Security Committee will have the 42 documents that its Chairman indicated it has not yet seen? Secondly, will he give the House an absolute undertaking that if, as a result of the Attorney-General’s investigations, it appears that any member of the British security forces has engaged in torture, that person will be brought to trial, in the hope that he or she will be punished severely?

Yes, in respect of the 42 documents. The Government’s commitment is to work openly with the Intelligence and Security Committee. It is an important part of our system that works well in holding to account some of the most sensitive aspects of Government.

In the end, the decision about prosecution is obviously a matter for the Attorney-General and the Director of Public Prosecutions. I am sure that they will want to discharge their duties in accordance with the full and open law of the land.

The Foreign Secretary will know that, in 1863, President Lincoln issued an edict, which stated:

“Military necessity does not admit of cruelty nor of torture to extort confessions.”

However, in December 2002, Donald Rumsfeld did just that by authorising interrogation techniques that clearly violated article 3 of the Geneva convention. Does the Foreign Secretary agree that nothing has so damaged the moral authority of the United States and her allies as the use of extraordinary rendition?

Yes. I said in a different context in the House that democratic countries are held to a higher standard than terrorist groups or others, and that those standards are in our interest. When we violate them, we seriously let ourselves down. If the hon. Gentleman is referring to Abu Ghraib and other matters, he is right to suggest that that did huge damage to not only the moral standing but the political position of decent people everywhere.

Will the Foreign Secretary send a report of our exchanges to the United States and ask for a summary or redacted version of the documents, which would solve a particular problem? Does he regret that the Government waited till 2007 to take up the issue of British residents instead of responding to the pro bono lawyers working for the Guantanamo people, who asked them to do it rather earlier?

The hon. Gentleman makes an interesting point. Until the end of 2005—certainly throughout 2005—the Government’s focus was on bringing back the nine British citizens. We wanted to work hard to take that experience into account before moving to the separate class of issue to do with the former residents. In that context, the Home Secretary and I were presented with the work that had been done when we took office at the end of June 2007. Five weeks later, we were able to apply for their release.

I can assure the hon. Gentleman from previous experience, that our closest ally watches exchanges in the House closely.

There will be some confusion in many of my constituents’ minds about the role of the Foreign Secretary. On intelligence sharing and the protocols that go with it, the decision rests with the United States, but that does not prevent him from making representations on behalf of this country to the United States. Surely that is the role of Foreign Secretary—making representations on behalf of this country.

I can think only that the hon. Gentleman was not listening when I described—and the court described—the Government’s extensive, to use the court’s word, “strenuous” efforts to secure the return of the individuals from Guantanamo Bay. If that does not constitute standing up for this country’s national interest, I do not know what does.

The really special bit of our special relationship with the United States is our intelligence sharing, and the Foreign Secretary is right to defend that. However, does he understand my constituents’ concerns that this man is not even a British national? He has taken legal proceedings against the British Government, who seem to be doing their level best to return him to the United Kingdom. Does the Foreign Secretary recognise my constituents’ concern that the man is creating all sorts of problems for us as a country, despite our best efforts to get him back here?

I prefer to stick with the fact that our position—to seek the release and return of Mr. Mohamed, as a former British resident—is the right thing to do. I am sorry if the hon. Gentleman cannot support us in that, even if he recognises the overall importance of the links between the US and the UK.