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Volume 663: debated on Thursday 18 July 2019

With permission, Mr Speaker, I would like to make a statement on the Government’s approach to the detention and rendition of detainees overseas. Our policy on this issue remains clear: the Government do not participate in, solicit, encourage or condone the use of torture or of cruel, inhuman or degrading treatment for any purpose. To do so would not only be wrong and incompatible with the United Kingdom’s commitments under international conventions—such as the United Nations convention against torture and other cruel, inhuman or degrading treatment, to which this country is a signatory—but it would also be a betrayal of everything that we stand for as a nation, in terms of our promotion of human rights and protection of human dignity.

There is already clear guidance and training for UK personnel dealing with detainees who are held by others. That guidance has been reviewed at the Prime Minister’s request by Sir Adrian Fulford, the independent Investigatory Powers Commissioner, to see how it could be improved further, taking account of the views of the Intelligence and Security Committee and civil society. The Government have accepted Sir Adrian’s proposals in full, as set out by my right hon. Friend the Prime Minister in a written ministerial statement earlier today.

We have published new guidance entitled “The principles relating to the detention and interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees”, which will replace the current consolidated guidance at the end of this year. The principles will be extended so that they explicitly cover the National Crime Agency and SO15 Metropolitan Police Service.

I would like to thank Sir Adrian for his work. The principles address many of the points raised by the Intelligence and Security Committee in recommending changes to the consolidated guidance. The new document will now be explicitly engaged when there is a risk of extraordinary rendition, rendition or unlawful killing occurring in the context of detention. It will also apply not only when UK personnel are working with Governments but when non-state actors or groups are involved. The principles introduce a formal error reporting obligation and a formal whistleblowing provision, in line with the commissioner’s statutory responsibilities in the Investigatory Powers Act 2016.

These new principles are part of steps taken by successive Governments to understand what happened in the aftermath of the appalling terrorist attacks of 11 September 2001 and to put in place improved policies and practice. As the Prime Minister said in a written statement on 28 June last year,

“With the benefit of hindsight, it is clear that UK personnel were working within a new and challenging operating environment for which, in some cases, they were not prepared. It took too long to recognise that guidance and training for staff was inadequate, and too long to understand fully and take appropriate action on the risks arising from our engagement with international partners on detainee issues. The Agencies responded to what they thought were isolated allegations and incidents of mistreatment, but the ISC concludes that they should have realised the extent to which others were using unacceptable practices as part of a systematic programme. The Agencies acknowledge that they did not fully understand this quickly enough and they regret not doing so.”—[Official Report, 28 June 2018; Vol. 643, c. 41WS.]

It is important to say, however, that the ISC found no evidence to support allegations that UK personnel directly carried out physical mistreatment of detainees.

Lessons have been learned from these challenging events and from the various independent examinations of detainee issues that have taken place over the past 15 years or so. These have included three separate investigations and reports published by the ISC in 2005, 2007 and 2018; Sir Peter Gibson’s detainee inquiry report, published in 2013; related police investigations; and thorough internal reviews by the security and intelligence agencies of their involvement in detainee cases from 2001 to 2010, which the ISC examined in its most recent report.

The position now is very different from the one confronting UK personnel in the immediate aftermath of 11 September 2001. Better guidance and training is coupled with a world-leading independent oversight regime, underpinned by the Justice and Security Act 2013 and the Investigatory Powers Act 2016. This legislation has given the ISC enhanced powers to oversee the activities of the security and intelligence agencies, alongside the statutory role of the Investigatory Powers Commissioner, who reports annually on his remit, including the application of detainee policy. The consolidated guidance and new principles make it clear that Ministers must be consulted if there is a serious or real risk of detainee mistreatment occurring at the hands of others, and of course the ministerial code reflects the overarching duty on Ministers to comply with the law.

I will turn now to the question whether there should be a further inquiry into detainee mistreatment and rendition issues. As I told the House on Monday, in response to an urgent question from my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), since publishing our response to the ISC’s reports on detainee mistreatment and rendition on 22 November 2018, the Government have given serious consideration to the examination of detainee issues and whether any more lessons could be learned and, if so, how. My right hon. and learned Friend, as the then Cabinet Office Minister without Portfolio, told the House on 19 December 2013 that once the ISC had completed its most recent work, the Government 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.]

I undertook to give a definitive answer to that question, and I can confirm today that the Government have decided that it is not necessary to establish a further inquiry. There is no policy reason to do so, given the extensive work already undertaken to improve policies and practices in this area. The Government’s position is also that there is no legal obligation. These matters have been subject to a number of police investigations over the years, including Operations Hinton, Iden and Lydd, and a joint panel was set up by the Crown Prosecution Service and the Metropolitan Police Service in January 2012 to consider allegations of UK involvement in detainee mistreatment. None of these police investigations has resulted in further action being taken, although some inquiries are continuing.

Parliament and the public can have confidence in the effectiveness of measures taken since 2010 and the new principles announced by the Government today to strengthen the accountability and oversight by Ministers, Parliament and the independent commissioners of the vital work of our security and intelligence agencies. I commend this statement to the House.

I thank the Minister for the Cabinet Office for advance sight of his statement. I always look forward to my debates with the Minister, even if on one recent occasion I was denied that pleasure, as he greatly enjoyed pointing out at the time. Although on that note I should say that if this time next week he ends up on a slow train to the gulag, along with the Chancellor, to be replaced by some “do or die” no-deal Brexiteer, I can tell him that it is 20° and sunny in Siberia today—so don’t knock it till you’ve tried it.

On a serious note, I genuinely hope that the right hon. Gentleman will continue to be a regular fixture at the Dispatch Box. Unlike the new Prime Minister, he always treats his ministerial responsibilities with the seriousness and diligence they deserve—I believe I speak for the whole House when I say that.

On this occasion, I fear there will be little consensus between me and the right hon. Gentleman. I believe the outgoing Prime Minister has made a fundamental error of judgment not to make good on the commitment of her predecessor, not to honour the promises of the former Justice Secretary and now Father of the House, and not to listen to the recommendations of the Intelligence and Security Committee. They were all absolutely clear that the only way to get to the truth on these issues and to learn lessons for the future was for the Government to commission an independent and judge-led inquiry with the power and authority to examine all the evidence, question every potential witness and come up with conclusions to which the Government would be bound.

If the argument in 2010 or 2012 was that the inquiry could not be held at that time due to ongoing criminal investigations, that argument simply does not hold water today. If the long delay and sorely mistaken judgment were the result of a genuine deliberation within Government about the merits of the public inquiry, I could possibly agree to disagree but at least respect the thought that had gone into the decision. However, I do not believe that that is the case. Even before the ISC report was published, I believe there was a deliberate attitude on the Government’s part to circle the wagons and avoid any judicial scrutiny or public consultation on the past actions of the intelligence services or the future rules by which they operate, even though it is the intelligence services themselves whose reputation and morale is damaged most by failing to deal with this scandal.

On the new guidance published today, we are told that the views of civil society have been taken into account. Right from the outset, however, we know that the Government were determined to resist those views. If we want evidence for that, just look at the letter written to me and the shadow Attorney General in June last year by the man about to become the next Prime Minister, who, titan of competence that he is, left attached to his letter the background note written by his staff explaining the position they were suggesting he take. This is what they said on the subject of public consultation with human rights groups on the guidance given to security service personnel, designed

“to reassure personnel that they are operating in accordance with UK and international law”.

According to the Foreign Office note, they had concluded that

“Public consultation…is likely to generate recommendations that we would not be able to implement without damaging national security.”

My first question to the Minister for the Cabinet Office is whether all the recommendations from civil society have been incorporated in the new guidance. Can I ask him specifically whether one of the most important recommendations they made has been adopted? Has there been an express prohibition on Ministers giving the green light to the torture of overseas detainees? If not, why not?

I could talk at further length today about the historical allegations in relation to torture and rendition dating back two decades and about the operation of secret courts, all of which I believe justify the independent judge-led inquiry for which we, the ISC and the Father of the House have called, but in the time that I have I want to make a simple point. If the Government are so confident that all the lessons of the past have been learned, that all the abuses of the past cannot be repeated and that the new laws and procedures, which were, sadly, not strong enough before, are now in place, then what exactly do they have to fear by allowing a judge to look at this issue to examine all the evidence, interview all the witnesses and look at the new procedures and rules, so that he or she can tell the Government whether they are right?

May I first genuinely thank the right hon. Lady for her kind words at the start of her remarks? I think it is fair to say that when we have tilted lances at each other we have done so in the spirit of mutual respect, even if it has sometimes been no holds barred in terms of the professional combat in which we have been engaged.

If I can seek to respond to the questions the right hon. Lady posed to me, the Government did listen to the ISC; indeed Sir Adrian’s revisions—incorporated in the new principles, which the Government have accepted today—reflect in many detailed aspects the precise recommendations of the Committee in its two reports of 2018.

Without going into detail about internal matters and procedures within Government, I can assure the House that there was very genuine and very detailed deliberation within Government about the right way forward. While the decision on matters relating to security intelligence always rests with the Prime Minister ultimately, the House would, I am sure, have expected that other senior Ministers with an interest in these matters would be consulted and would have given their advice to the Prime Minister, and that happened.

The right hon. Lady asked me about the views of civil society. I never made any claim in my statement that the Government’s response or the proposals by Sir Adrian reflected in full the views of civil society. What I can say is that Sir Adrian, in the course of his review, took great care to consult civil society; he convened meetings where representatives of civil society could make their representations to him and put forward their ideas. The Government have accepted Sir Adrian’s recommendations in full, without qualification. If Sir Adrian, in his recommendations, chose not to reflect everything that particular civil society organisations wished to see, that was a judgment by Sir Adrian, and it was right for the Government to rely on the independent commissioner to be the prime source of advice to us on these matters.

The right hon. Lady asked, in particular, about the idea of an express prohibition on Ministers. As she will have seen, in his report Sir Adrian did say that he looked at whether extra duties should be imposed on Ministers, and he considered that that was not part of what he should be proposing. However, as I said in my statement to the House, it is already the position that Ministers are bound by the law and by the ministerial code. The ministerial code requires Ministers to comply with the law in all their actions as Ministers, and we include in the definition of compliance with the law compliance with the United Kingdom’s international treaty obligations. Those duties on Ministers are very clear already, and that is reinforced by the fact that the civil service code, which operates on the basis of comparable principles, is grounded in statute, so it is straightforwardly a breach of that statute for civil servants to act in any way, professionally, that would breach the law.

I would just say to the right hon. Lady that the Government were as open as we could possibly be during the various inquiries and investigations that have taken place. For example, the Intelligence and Security Committee had access to the Government material that was presented to the Gibson inquiry and to the agency chiefs’ responses to the 27 themes and issues identified by Sir Peter Gibson in his preliminary report, and the Committee was provided with the Intelligence Services Commissioner’s views on the current compliance with those aspects of the consolidated guidance that he is responsible for monitoring. We therefore tried to be as open as possible, within the limits of what it is possible to discuss openly, about the issues we are debating today.

Order. These are extremely important matters, but I intend to move on from this statement absolutely no later than 10 past 12 and to dispose of, in the parliamentary sense, the business of the hon. Member for Harwich and North Essex (Sir Bernard Jenkin) on the Select Committee statement by absolutely no later than half-past, so economy is of the essence.

I welcome much of what my right hon. Friend has said, and the Intelligence and Security Committee greatly welcomes what he said about the consolidated guidance. It has said since 2010 that the title “guidance” is itself misleading. It is not guidance, but a framework which sets the boundaries, and we are pleased that the Government have now openly acknowledged that. We are also pleased that the principles reflect the important changes that we recommended, including specific reference to extraordinary rendition alongside torture and cruel, inhuman and degrading treatment, the application of the principles to joint units and non-state actors, and regular review—which is of the utmost importance, because it had not been taking place regularly in the past. We are also pleased that the agencies must follow the spirit of the principles, not just the letter. All those are, in our view, major steps forward. I greatly welcome them and thank the Government for their positive response.

The second issue concerns the inquiry into what happened during the period which has given rise to the disquiet expressed in the House and elsewhere. When the ISC was asked to carry out an inquiry, we were assured that we would have access to all the evidence that we needed in order to complete it, and thus to provide the necessary public assurance to bring closure to this matter. However, as my right hon. Friend well knows, we were unfortunately denied access to certain individuals who would have given oral evidence before us, and we therefore concluded that we must bring our inquiry to an end and publish the material that we had. A judge-led inquiry would undoubtedly have presented another opportunity for that full transparency.

Leaving aside policy or legal reasons, the one point that I would make to my right hon. Friend is that even when problems have been remedied, there is sometimes a good policy reason for bringing about closure. The simple question that I pose to him is whether the decision that has been taken will enable that closure to take place.

I am grateful for my right hon. and learned Friend’s welcome for Sir Adrian’s report and the new principles that the Government have accepted. I was expecting him to express disappointment about our decision with regard to a judge-led inquiry.

I do not want to spend too much time going over old ground, but, as I said in response to the right hon. Member for Islington South and Finsbury (Emily Thornberry), the ISC was given access to all the material that the Government supplied to the Gibson inquiry and in relation to other matters. I understand that the Committee took more than 50 hours of oral evidence, reviewed 40,000 original documents, and devoted more than 30,000 staff hours to its inquiry.

The one point of difference concerned the Committee’s request to take evidence from junior officials. The Government attempted to find a compromise that would enable some of them to appear, but we were unable to reach agreement on that. It is a long-established principle that junior staff are not required personally to answer to parliamentary Committees. That is recognised in the Government’s memorandum of understanding with the ISC, which permits the Committee to take oral evidence from Ministers, agency heads and senior officials. A number of those whom the Committee wished to interview had been junior officials at the time of the events in which the Committee was interested.

Let me now respond to my right hon. and learned Friend’s direct question. One of my concerns about the judge-led inquiry is that it would give rise to expectations about closure, but would not be able to deliver them. By definition, the sort of material that we are talking about could not be discussed openly without risk of harm to the national interest. Apart from the fact that we see neither a legal nor a policy reason for resuming a judge-led inquiry, I fear that the offer of closure would eventually be seen as a grave disappointment by those who are arguing for a such an inquiry because of the necessity for secrecy.

I thank the Minister for advance sight of his statement and agree with others that much of it is to be welcomed. However, like others I regret the decision not to hold an independent judge-led inquiry. The arguments that the Gibson and ISC investigations obviate the need for an independent judge-led inquiry do not hold water, because, as the right hon. and learned Member for Beaconsfield (Mr Grieve) said, the ISC’s investigation took place under such severe Government restrictions that, as the Committee itself states, it was left unable to conduct an authoritative inquiry or produce a credible report. As a result, the ISC chose to classify its report and its conclusions as provisional and warned that it must not be taken as a comprehensive account. Does the Minister not see that the only way to take the work of the ISC forward and properly address what went wrong is to establish an inquiry with the necessary powers to follow the leads that the ISC could not? Obviously, some aspects of that inquiry could not be held in public, although others could, and the right model for this is an independent judge-led inquiry with the full powers of such a judge-led inquiry in relation to the production of evidence and the attendance of witnesses, along with the independent ability to assess all the evidence and make a determination as to what cannot be published for national security reasons. Does the Minister not see that such an inquiry would not be required to start from scratch? It could take the ISC findings as a base, and they could provide a clear road map for a future investigation. A judge-led inquiry could focus on answering the unanswered questions, reviewing the unexplored cases and examining the evidence the ISC was not able to see. With such considerations in mind, can the Minister not see that there is unfinished business here, and does he think that the incoming Administration might reconsider this decision, having regard to the points I have made?

I cannot speculate about what an incoming Administration might or might not do. I am grateful to the hon. and learned Lady for her welcome for the principles, but I disagree with her on this point: I do not see that a revived judge-led inquiry would add anything to the actions that have already been taken. The Government and the agencies have accepted that things were done wrong, for various reasons, between 2001 and 2010. As a result of internal investigations, the ISC’s reports and the commissioner’s recommendations, significant improvements have been made to the internal training of staff in the agencies. There is much greater clarity and rigour in the guidance that officers are given, and the accountability of officers to Ministers in cases where there might be a risk of torture or inhuman treatment has been highlighted in the guidance and the training.

In the light of those changes, it is our view that no new policy decision would arise out of a further judge-led inquiry, nor do we believe that there is a legal obligation on the Government to hold such an inquiry. The police have had access to all the material they wish to access about individual cases, and, as I have said, they have concluded a number of investigations without need for further process, while a few investigations are continuing. So I think all necessary steps have been taken.

I will resist the temptation to reply to the failure to provide a judge-led inquiry in four words; those words being, “See you in court,” because it is quite plain that this decision will face a judicial review and that will take even more time and give less closure.

My right hon. Friend asked us to accept that the Government have solved the problems, and ironically he cites as evidence of that a number of ISC reports from some years ago that are now understood to have got the answer wrong because they were misinformed. The current ISC report—much better, much higher quality—was of course limited, as we heard from its Chairman, by the restriction on witnesses.

So the Government are asking us to allow them to mark their own homework. If we want a real coruscating comment on that, we need only look back at the Binyam Mohamed case and the remarks of Judge Neuberger on the Government’s and agencies’ handling of it throughout. The Government should simply not be allowed to mark their own homework.

On the point that the Government have solved the problems, I am afraid that that is plainly and demonstrably not true. That is illustrated most clearly in the point raised by the shadow Foreign Secretary that there is no prohibition on Ministers approving torture. My right hon. Friend the Minister says that they are required to obey the law, but they were required to do so in 2002 when the law was precisely the same in terms of international convention, so that does not apply either. We have evidence from one month ago, Mr Speaker, when you allowed an urgent question in this Chamber to the Ministry of Defence, which had produced internal policy documents that explicitly conceived of Ministers approving co-operation with states that had used torture to acquire information. So, plainly, the Government have not learned their lesson yet. There are a number of reasons for having an inquiry—legal, reputational, operational, closure and the simple one of keeping the promise we gave—and I am afraid that the Government will eventually be forced into that position.

My right hon. Friend has been pursuing these issues for quite a long time now. He has always been absolutely consistent in the position he has taken, and I respect that position even though the Government disagree with his views.

Going back to the question about witnesses at the ISC, the offer was always there for agency chiefs, senior officials and Ministers to speak on behalf of officers who were or had been junior at the time of the events complained of. That is the way in which the Government respond to every Select Committee of Parliament, with the seniors in a Department or agency taking responsibility for the decisions made by junior staff.

In respect of what my right hon. Friend said about the Ministry of Defence, he will find when he looks at the principles that they apply expressly to members of our armed forces. My right hon. Friend the Secretary of State for Defence has issued a written ministerial statement today in which she says that the Ministry of Defence accepts the principles in full and has already begun work to update its internal guidance accordingly.

Order. Musings and commentary are not required. Single-sentence questions and pithy replies are.

I welcome the statement and note that a lot of the recommendations of our ISC report have been adopted, although I have to say to my right hon. Friend the Member for Islington South and Finsbury (Emily Thornberry) on the Front Bench that a judge-led inquiry was not one of them. The important thing is the five-year review. Will the right hon. Gentleman ensure that when it happens, it is made fully public?

I am grateful to the right hon Gentleman for his welcome, and I will ensure that we seek to be as public as possible about the five-year review. The five years should be regarded as a maximum period. Frankly, if evidence comes to light at any stage that amendments are needed, I would expect the Government and the agencies to act accordingly and make the amendments sooner.

My right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), the Father of the House, cannot be here today, for reasons he has explained, but were he here, I am sure he would say what I am going to say, which is that this is a breach of the undertaking that was given to the country and to Parliament by the Cabinet, of which the Father of the House and I were members. Both of us were also members of the National Security Council. I am mindful of the serious damage that this has done to our international reputation, and it is a great pity that my right hon. Friend the Minister and the Government have reached the conclusions that they have today.

I respect my right hon. Friend’s position, but I disagree with it, for the reasons that I have set out. We address harm to our national reputation by clearly being seen to admit when things have gone wrong in the past and taking resolute action to put them right, and I think that the measures that have been put in place over the last few years are evidence that we have done so.

As a member of the ISC, I welcome the recommendations the Chancellor of the Duchy of Lancaster has accepted, but could he establish the principle that it is for the ISC, not the Government, to determine whom it sees?

I am grateful to the right hon. Gentleman for his welcome for the principles. The memorandum of understanding between the Government and the ISC does make it clear that the ISC is entitled to take evidence from Ministers, senior officials and agency chiefs. That is in line with the relationship between the Government and every departmental Select Committee, and I am not persuaded that there is a need to change that.

Does my right hon. Friend understand that he would have had an easier ride today if the Government had been more flexible on whom we, as a Committee, could see?

I understand the argument that my right hon. Friend is making, but I repeat the point that it is a long-established principle, reflected in the memorandum of understanding with the ISC, that it is senior officials, agency chiefs and Ministers who are accountable to the Committee, rather than junior officials.

The Government accepted all the major recommendations of the ISC and that will lead to real change, but there is one that they have not accepted, which is on emergency authorisations. The Committee recommended these should not be used where there is a serious risk of torture, and if they were, that they should be escalated to the appropriate level of authorisation. Why has that not been taken on board?

If the right hon. Lady looks again at the principles that have been published today, she will see that, where there is a real risk of torture, there is a requirement that that must be escalated to Ministers, even if that carries an increased risk of, for example, a terrorist attack succeeding. I am happy to write to the right hon. Lady to set out the detail, but that is my very clear understanding.

I, for one, welcome the improved guidance and the more robust oversight of the work of our security and intelligence agencies. May I ask the Minister: is it the case that the UK is one of the very few countries in the world publicly to set out its approach on the detention, treatment and interviewing of detainees overseas?

It is, and I think we can take some pride in the fact that the arrangements that have been put in place in recent years are seen as an example elsewhere in the world.

The Government are wrong to reject a judge-led inquiry, which was the only way to find out if the lessons have been learned. Given the Minister’s statement, will he commit to two measures: first, legislation to provide redress for victims of extraordinary rendition; and, secondly, an immediate review of guidance should it become clear that UK personnel are still at risk of breaking the law?

It is very clearly our view that if an officer in any of the agencies or someone in the armed services is complying with the principles, they should not be at legal risk. I will take advice on the final question the right hon. Gentleman put to me and write to him. Clearly, issues to do with legislation will have to be a matter for the incoming Administration.

Does my right hon. Friend share my concern at the apparent lack of appropriate ministerial oversight in the early years of this century? What has been done to ensure that the intelligence agencies are properly accountable to Ministers?

It is clear that things did go wrong—and seriously wrong—in the aftermath of 9/11. What has happened since then is that we have given enhanced powers to the Intelligence and Security Committee, and we have established the independent commissioner on a statutory basis so that he is seen to be completely independent of the Government.

Would it not be a source of reassurance for the Government to have an independent inquiry that would ensure the new principles are watertight and give the British public absolute confidence in our overseas engagements?

The problem with what the hon. Lady suggests is that, because so much of the information and documentation would have to remain secret for good security reasons, that could not provide such reassurance. It is the independence of the commissioner and the Committee that is the best and most compelling assurance we can give people.

If matters are escalated to Ministers, will they be prohibited from authorising action that carries a real risk of torture?

I cannot see any circumstance in which a Minister of the United Kingdom would authorise action that was contrary to the law.

Is it not in everybody’s interests to get to the bottom of what went wrong here? Given that the Intelligence and Security Committee said that it could not produce a credible report, we surely do still need that judge-led inquiry.

No. Any judge-led inquiry would have to conduct many, if not most, of its proceedings in secret, so it could not provide the kind of assurance that the right hon. Gentleman seeks.