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Detainee Mistreatment: Judge-led Inquiry

Volume 663: debated on Monday 15 July 2019

(Urgent Question): To ask the Prime Minister if she will make good on her Government’s commitment, made over a year ago, to bring to the House within 60 days their view on reinstating the judge-led inquiry into detainee mistreatment and rendition that the former Government promised in 2012.

As my right hon. and learned Friend indicates, this issue has a lengthy history. It was in July 2010 that Prime Minister Cameron announced Sir Peter Gibson’s inquiry into allegations that the United Kingdom had been implicated in the improper treatment of detainees held by other countries in the aftermath of 9/11.

In December 2013, the Government published Sir Peter’s preparatory work and asked the Intelligence and Security Committee of Parliament to follow up on the themes and issues which that work had identified, to take further evidence and to make a report. At the same time, the Government said that they would:

“take a final view as to whether a further judicial inquiry still remains necessary to add any further information of value to future policy making and the national interest.”—[Official Report, 19 December 2013; Vol. 572, c. 916.]

In June last year, the Intelligence and Security Committee, its work having been interrupted by two general elections and the task of reconstituting the Committee after those elections, published two reports: “Detainee Mistreatment and Rendition: 2001-2010” and “Detainee Mistreatment and Rendition: Current Issues”.

In response to an urgent question from my right hon. and learned Friend on 2 July last year, the Minister for Europe and the Americas, my right hon. Friend the Member for Rutland and Melton (Sir Alan Duncan), said that, in responding to the ISC reports, the Government would:

“give careful consideration to the calls for another judge-led inquiry and will update the House”.—[Official Report, 2 July 2018; Vol. 644, c. 26.]

The Government responded formally to the ISC on 22 November last year, and my right hon. Friend the Prime Minister, in a written statement, said:

“The Government continue to give serious consideration to the examination of detainee issues and whether any more lessons can be learned and, if so, how.”—[Official Report, 22 November 2018; Vol. 644, c. 31WS]

That serious consideration has included the question of a further judge-led inquiry.

As the House will understand, this has been complex work, which has involved some of the most sensitive security issues. I confirm to the House today that the Government will make a definitive statement setting out their decision about a judge-led inquiry later this week and, at the same time, we will announce to the House our response to Sir Adrian Fulford’s recommendations on the consolidated guidance.

I will make sure that your comment to that effect is faithfully reported to my colleagues in Cabinet, Mr Speaker.

You have asked the most penetrating question, Mr Speaker. I am grateful to my right hon. Friend the Deputy Prime Minister for finally producing some indication of when we might get a decision and for saying that the Government have reached conclusions. I will not repeat his precis of events, which goes back to the most firm undertakings in 2010 and 2012 that there would be a judge-led inquiry. The preliminary inquiry by Sir Peter Gibson set out the questions that the inquiry had to answer. It was postponed only because of the police inquiry into the further revelations of rendition to Colonel Gaddafi in Libya. After that, the resumption of the inquiry was postponed while the parliamentary Intelligence and Security Committee examined matters. When the ISC finally discovered the extent of British intelligence services’ complicity in cases of torture and their involvement in hijacking and the unlawful rendition of people for interrogation, mainly in America, the Committee’s investigations were stopped and it made a report saying what it would have liked to examine if it had been allowed to interview witnesses.

For years and years, this has been put into the long grass in the hope that it would eventually go away, so I hope that that comes to an end this week. We need to know how there was such a terrible breakdown in responsibility and communications that produced the misdeeds that took place in the time after 9/11, so that we can avoid the culture of the intelligence services and their relationships with Ministers ever slipping back into the same thing again. I hope that we will not just be told, “It is too late. Everything is all right now; there is no need to do anything,” because if it is all right now—as I trust it is—we have to reduce the risks that in future, we as a country will ever get involved in torture and rendition again.

If this decision comes out in the last days of this Session, on the eve of the summer recess and in the middle of the appointment of a new Prime Minister in an attempt to bury it away in the pages of Hansard and to escape any further challenge until the autumn comes around, it will be the most blatant further attempt to get out of the most solemn undertakings that were given by me when I was Justice Secretary and Lord Chancellor on behalf of the then Prime Minister. That Prime Minister gave these undertakings himself, in a Government in which the present Prime Minister, Deputy Prime Minister and many of their colleagues were serving. We had cleared that line and should honour it, and the whole House should demand a proper, full statement later this week. If there is one success that the delay may have achieved, it is, I regret to say, that for serious personal reasons—not because I am going on holiday—I may miss the final denouement and the statement later this week, because I may be absent from the House. However, I hope that the House will hold the Government fully to account if they try to slip out of their commitments and obligations in the end.

I can reassure my right hon. and learned Friend that, far from there being any attempt on behalf of the Government to slip things out under the radar as the summer recess approaches, the Prime Minister has been very clear that she regards it as her responsibility to ensure that the decision is taken and announced to Parliament before she leaves office. It would be understandable if a new Prime Minister on taking office wanted to look again at or acquaint himself with the material that was coming to the present Prime Minister. This decision and its timing are actually designed to ensure that we do not slip anything out under the radar.

I would just say to my right hon and learned Friend that the Government are very clear that officials in our agencies have not been involved in torture and that this Government and previous Governments have been resolute in opposing torture. We are talking about the extent to which it is alleged that there was knowledge of or to some extent complicity in the treatment of detainees held by the authorities in other countries.

In my right hon and learned Friend’s time, a number of significant changes were made, both in internal Government practice and in the law, that I believe have put us in a much better position since his time in office. I agree strongly with him about the need for us when we debate these matters to look forward as well as backwards. That is exactly why I believe it is right that we acquaint the House with Sir Adrian Fulford’s recommendations on the consolidated guidance at the same time as we respond to the obligation to take the decision on a judge-led inquiry and announce it.

Thank you, Mr Speaker, for granting this urgent question. I thank the Father of the House for securing it and for being so diligent on this issue. He has spoken with typical lucidity on this matter, and I agree with everything he has said, particularly about the unfortunate long grassing.

There is no need for me to repeat what the right hon. and learned Gentleman has already said concerning the constraints that were placed on a nevertheless damning report from the Intelligence and Security Committee. He rightly says that the only way to lift those constraints is to authorise a judge-led inquiry where all the witnesses can be called and all the evidence examined so that finally we can get to the full truth about the historical allegations of torture and rendition that took place under a Labour Government and about the operation of secret courts established by the current Government under the Justice and Security Act 2013.

The inquiry would be for the benefit of all future Governments, whichever party is in charge, as it would enable us all to truly learn the lessons from what has happened and to put in place new procedures and any necessary changes to the consolidated guidance so that we can absolutely guarantee that these abuses will never happen again. The reason it is so urgent is that in fewer than 10 days we will have a new Government in charge led by a Prime Minister who has proven by his actions not just as Foreign Secretary but also on the debate stage last week that he cannot be trusted to stand up to Donald Trump—a President who, let us not forget, has publicly said that he believes that water boarding and other forms of torture are effective and that we have to “fight fire with fire”. If we have a new Prime Minister who is willing to throw our ambassadors under the bus, we must have new procedures in place to stop that Prime Minister allowing our Government once again to be in danger of becoming complicit in torture and rendition by the United States or any other country to whom he kowtows.

I am glad to hear that there will be a further statement, and hopefully that statement will include a decision by the Prime Minister, but will the Minister tell the Prime Minister to establish the inquiry that we were promised seven years ago in the next week and to provide at least one fitting legacy from her time in office and one necessary protection for the country from the recklessness of her successor?

Obviously I will not pre-empt the content of the Government’s statement later this week, but I think it is clear from the way in which the right hon. Lady has posed her questions that it is acknowledged on both sides of the House that this is an extremely important as well as an extremely sensitive decision. What I will say to her is that the protections against involvement in the use of torture apply to this and any future Government in the United Kingdom, not least by virtue of Ministers’ obligations to obey the law. That includes our international legal obligations, including those set out both in the United Nations convention against torture and the European convention on human rights.

In recent years we have seen not only a much stronger and, for the first time, a statutory role for the Investigatory Powers Commissioner—who now reports annually on his work, including the application of detainee policy—but enhanced powers for the Intelligence and Security Committee, notably the power that enables it, in law, to require rather than just request information from the security and intelligence agencies.

I hear what my right hon. Friend says about obeying international law, but it is clear from the Prime Minister’s apology to the Libyan victims alone that the British Government, at very best, came perilously close to breaching article 3 of the European convention on human rights, which forbids torture but also its facilitation or complicity in it. Moreover, without an independent judge-led inquiry, the Government may now be in breach of article 13, which, as well as encapsulating centuries of established common law, provides for the right to “an effective remedy”.

I do not know what is making the Government take so long to decide whether to pursue a judge-led inquiry. It may be pressure from the agencies, although I doubt that now, or it may be pressure from allies who were complicit or involved in this. Whatever it is, I hope that what I shall say next will help my right hon. Friend in his argument with them. If he does not announce an independent judge-led inquiry in his statement later this week, or next week, I will certainly seek advice on whether we have broken either of those articles, and, if need be, use the proper judicial mechanisms to ensure that the Government are put back within the bounds of the law.

As I said earlier, it is the duty of every Minister, in line with the Ministerial Code, to comply with our international as well as our domestic legal obligations. In the case of officials, those obligations are statutory, because the civil service code is itself incorporated in statute. I hope that when my right hon. Friend sees the detail of what will be announced later this week, he will be able to feel reassured by it.

I commend the Father of the House, the right hon. and learned Member for Rushcliffe (Mr Clarke), for bringing this matter to the Floor of the House, and for securing what seems to be something of a concession in relation to an announcement later this week. However, it is still very unclear why there has been such a lengthy delay since the undertaking given more than a year ago that the decision would be brought to the House “within 60 days”. Can the Minister elucidate?

Before the publication of the Intelligence and Security Committee’s report on these matters last year, the United States Government were given the chance to review the report and to request redactions. Will the Minister tell us what discussions have taken place with the Trump Administration about a potential inquiry, and will he reassure us that the Government’s delayed response is not a consequence of pressure from the United States?

This has taken time because the Government have felt, I think rightly, that an issue of such importance and sensitivity requires very careful and meticulous consideration. The Government’s decisions are made on the basis of the United Kingdom’s national interest, and nothing else.

Not withstanding my right hon. Friend’s mellifluous and reassuring tones, it is pretty reprehensible that the Father of the House has had to raise this matter yet again. Not only were he and I members of the Cabinet that promised the House this inquiry nearly 10 years ago, but it is day 378 since the 60-day promise made by the Government and reinforced by my right hon. Friend the Minister for the Cabinet Office in answer to a written question from me. The damage that this has done to the UK’s precious international reputation is not well understood. This is not about hauling individuals before the courts; it is about transparency, openness, leadership and lessons learned.

The right investigation would have been by the Intelligence and Security Committee; a senior group of Privy Counsellors would have been best placed to handle this, and it would have been cheaper, but we are asking for this inquiry, the Government having hobbled the ISC’s inquiry. We are thrown back on a judge-led inquiry, but it must be a judge who is not part of the securitocracy.

Looking at international practice, I think we in this country can point to a system that requires high standard, and that is remarkably transparent, given the extremely secret nature of some of the personnel and operations that are relevant here. We now have a statutory role for the Investigatory Powers Commissioner, and we have his annual reports, including on detainee policy. We have enhanced powers for Parliament’s Intelligence and Security Committee, and the Prime Minister no longer has the power to appoint its Chair. The framework established by the Justice and Security Act 2013 and the Investigatory Powers Act 2016 measures up against the best standards in the world.

The Intelligence and Security Committee, on which I sit, finished its investigation on rendition, but the Government refused it access to certain individuals, so it could not interview them on the matter. If there were to be a judge-led inquiry, would the Government allow all individuals to give evidence to the judge?

I will not speculate on the content of the decision later this week, but I take on board the challenge that the right hon. Gentleman has posed.

I note my right hon. Friend’s answer to the point made by my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell) about high standards for the United Kingdom, but if the United Kingdom’s reputation for having the highest standards in this area is to be sustained, surely it is important, in this case and in others in which our security services come into contact with potential violations of fundamental aspects of international law, that there is proper accountability, driven by the Ministers who are meant to oversee it.

I agree with the final point that my hon. Friend makes, but I ask him to take account of the fact that we are dealing with the work of security and intelligence agencies—work on which the safety, and indeed the lives, of our citizens often depends—and that information about how operations are carried out can be of great value to our adversaries.

It must surely be the objective of all civilised countries to ensure that such events as rendition and the mistreatment of detainees never occur across the world. If we are to achieve that, should we not stand on the highest possible moral ground?

We should certainly act on the highest possible moral grounds. I believe that we have a statutory framework in which we can take considerable pride, and that marks a significant improvement on the practices that the Intelligence and Security Committee previously criticised.

As a member of the Committee, I think it is worth putting on record our extraordinary respect for the young men and women who serve in our intelligence services and who make impossible decisions, often at a moment’s notice. I think that an inquiry would show the extraordinary times in which they lived and how life has changed since many of the cases in question came before us. For example, there was no consolidated guidance in the earliest stages of the period we were looking at. I believe that the Government made a fundamental mistake in not allowing us to see the witnesses we wanted to see, because we would actually have been able to show something that assisted the Government—namely, that we live in a completely different regulatory regime. I am glad that my right hon. Friend the Minister made the point about the changing powers and the extension of the consolidated guidance. Will he tell us whether the examination of the consolidated guidance will be announced soon, or whether we will have to wait a long time for it?

First, I thank my right hon. Friend for the just tribute that he paid to the men and women working in our security and intelligence agencies. I can give him what I hope is a reassuring answer to his question. Yes, we will be publishing Sir Adrian Fulford’s conclusions and recommendations in full later this week.

Does the Minister accept that any UK involvement in extraordinary rendition is a stain on our reputation as a country that claims to uphold the rule of law and defend human rights? Does he agree that the best way to deal with this is for him to announce this week that there will be an independent judge-led inquiry, and also to announce the appointment of the new Investigatory Powers Commissioner?

I cannot promise the right hon. Gentleman an answer on that final point this week, but I believe that Sir Adrian’s recommendations will give him considerable reassurance.

May I seek an assurance from my right hon. Friend that the scope of any inquiry will include reports of extraordinary rendition through UK territories such as the British Indian Ocean Territory?

As I have said in response to earlier questions, I cannot pre-empt what will be in the Government’s statement later this week. However, I take note of my hon. Friend’s question.

When a Minister of the Crown stands at the Dispatch Box and says that something will be brought to the Chamber within 60 days, how should we understand such a commitment? Given the utter failure to deliver on this occasion, surely the House is entitled to a fuller explanation than the one the Minister has given so far, which is that this is terribly difficult?

It is not just a matter of something being difficult; it is a matter of Ministers having to consider the best course of action when we are talking about the work of security and intelligence agencies, which, by definition, has to be done in secret and whose disclosure could do considerable harm to our national interests.

Governments all over the world are challenging international law and the rules-based international order, and we have a President in the United States who clearly does not support those laws, so is it not time for our Government to accept that the promises they made at the Dispatch Box should be carried out? The right hon. and learned Member for Rushcliffe (Mr Clarke), the Father of the House, is one of the most experienced figures in these matters, and he has been persistent in trying to get the clarity we need on these issues. When the Government make what I hope will be an oral statement on this, should they not bring the matter to a conclusion rather than forcing us to come back to it again under a new Prime Minister?

It will not be in my power to decide whether the House wishes to return to these issues, but I can promise the hon. Gentleman that this will be a definitive statement.

I commend the Government on their work on human rights, but does the Minister share my concern that failure to protect human rights by complicity by mistreating detainees diminishes the UK’s capacity to be a champion for human rights abroad?

It is important that we demonstrate through our actions, not just our words, our commitment to human rights. Moreover, when one has the privilege of speaking to officers in the intelligence agencies about these matters, they make it clear that they want to uphold human rights. The intelligence agencies have to operate within the statutory remit that Parliament has given them. Anything that they do that breaches their lawful purpose and objective is something that they should not do.

Although the Gibson and ISC inquiries were curtailed or restricted, nevertheless they revealed hundreds of cases in which the UK was complicit or benefited from torture or mistreatment. Does that not mean that there is more of a case to set up such an inquiry than there was nine years ago, when the then Prime Minister said that there should be a judge-led inquiry

“fully independent of Parliament, party and Government”—[Official Report, 6 July 2010; Vol. 513, c. 181]?

The only thing that has changed in those nine years is that it would be difficult now to reach the truth because of the effluxion of time. Will the Minister at least say that there will be an inquiry, even if we hear the details later this week?

I disagree with the hon. Gentleman in his assertion that little has changed. There have been important statutory changes in the Justice and Security Act 2013 and the Investigatory Powers Act 2016. There have been important changes in the powers of the Intelligence and Security Committee, and in the statutory basis of the Investigatory Powers Commissioner, and in the practice that Ministers must be consulted whenever an intelligence officer involved in a planned operation believes that a detainee is at risk of mistreatment by a foreign state. That obligation applies even when consulting a Minister might be thought to lead to a risk of a terrorist act succeeding. The rules are much stricter than they once were.

Given that Britain’s reputation is at stake in relation to human rights when we talk to the world about our values, an oral statement should be made in the House so that we can make a judgment on what sort of inquiry should take place and so that we can question the relevant Minister, even if that is the Prime Minister herself.

I hear what the hon. Gentleman says. What we are discussing as, in fairness, the right hon. Member for Islington South and Finsbury (Emily Thornberry) acknowledged, are historical allegations, particularly concerning the period from 2001 to 2010, and the immediate aftermath of the appalling 9/11 terrorist attacks on the United States. The statutory and administrative basis on which our affairs are now organised give us much greater assurance in the House that decisions are made appropriately and that our agencies adhere to the highest possible standards of conduct.

The Minister made it clear that he thought that the change in the legislative, statutory and administrative frameworks were sufficient to assuage concerns that the House might have, but how can the House assess that unless it is thoroughly tested in this inquiry? That is the only way truly to understand whether it is effective or not.

The tests would be threefold. First, there will be an annual report from the Investigatory Powers Commissioner on how Government and the agencies use the powers with which they have been entrusted. Secondly, there are the reports from the Intelligence and Security Committee, and the confidence that the House should have that that Committee now has much greater autonomy and power than was once the case. Thirdly, Sir Adrian Fulford, the commissioner, was asked by the Government to review, reflect on and recommend changes to the consolidated guidance, and that is what we will put before the House later this week.