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Detainee Issues

Volume 799: debated on Thursday 18 July 2019


My Lords, with the leave of the House, I will repeat a Statement made earlier today in another place by my right honourable friend the Chancellor of the Duchy of Lancaster. The Statement is as follows:

“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 UN convention against torture and other cruel, inhuman or degrading treatment, to which this country is a signatory—but would be a betrayal of everything that we stand for as a nation in terms of our promotion of human rights and the 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 those of civil society. The Government have accepted Sir Adrian’s proposals in full, as set out by my right honourable 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 the 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 also introduce a formal error-reporting obligation and a formal whistleblowing provision, in line with the commissioner’s statutory responsibilities in the Investigatory Powers Act.

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 were 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 concluded that the agencies should have realised the extent to which others were using unacceptable practices as part of a systematic programme. As the Prime Minister noted last year, the agencies acknowledge that they did not fully understand this quickly enough, and they regret not doing so. 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 Report of the Detainee Inquiry, 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 are 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 enhanced powers to the ISC 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 the new principles make 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 turn now to the question of 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 honourable and learned friend the member for Rushcliffe, since publishing its response to the ISC community reports on detainee mistreatment and rendition on 22 November 2018, the Government have given serious consideration to the examination of detainee issues, whether any more lessons could be learned, and, if so, how. My right honourable and learned friend the Member for Rushcliffe, 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’.

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 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 accountability and oversight by Ministers, Parliament and the independent commissioners of the vital work of our security and intelligence agencies. I commend the Statement to the House”.

My Lords, I thank the Minister for repeating the Statement. It is extremely disappointing that the Government failed to implement the Intelligence and Security Committee’s recommendations to commission an independent and judge-led inquiry, especially in the light of the comments by the UN Committee Against Torture, which has called on the UK to,

“establish without further delay an inquiry on alleged acts of torture and other ill-treatment of detainees held overseas … by, at the instigation of or with the consent or acquiescence of British officials”.

We must remember that at the heart of the historical allegations of torture and rendition lie the stories of dozens of victims of this abuse, many of them innocent of any crime.

In the other place, David Lidington said that the Government did listen to the ISC and that the new principles reflected in many detailed aspects the precise recommendations of the committee in its two reports of 2018. So, if the Government are so confident that all the lessons of the past have been learned and that the abuses of the past cannot be repeated, what exactly do they have to fear by allowing a judge to look into 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?

I turn to the new guidelines published today. I welcome the fact that they have been published, but I am concerned that the input of civil society might not have been fully considered. On this point, David Lidington said 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. Is the Minister willing to say this afternoon exactly what Sir Adrian chose not to reflect from particular civil society organisations in his final report and recommendations? This process needs full transparency and open examination of all the issues, and that is why it is so important to have a full inquiry.

My Lords, I thank the Minister for repeating the Statement. However welcome it is that the Government have accepted the Investigatory Powers Commissioner’s recommendations to replace the current consolidated guidance with new principles, the refusal to re-establish a judge-led inquiry, which was promised nearly a decade ago, is deplorable. The Intelligence and Security Committee, under the chairmanship of Dominic Grieve, did its best in the reports it produced a year ago, but the Prime Minister denied it access to relevant witnesses such that it was unable to conduct an authoritative inquiry and produce a report, so it had to stop.

However, the ISC estimated, on the basis of the research it was able to do, that UK personnel had been involved in 2,000 to 3,000 detainee interviews in the period 2002 to 2004. It found 166 incidents recorded, and there were huge gaps in the records, where UK personnel either witnessed detainee mistreatment, were told of it by the detainees themselves or were told of it by foreign agencies. In addition, the ISC found 198 recorded cases where UK personnel received intelligence that they knew or should have suspected was tainted as it resulted from detainee mistreatment. That makes getting on for 400 cases, some of which would surely have involved torture or illegal behaviour by British officials. Since the ISC found a lot of gaps in those records, it could be many more. Then there is complicity in illegal rendition, secret imprisonment and disappearance. It is not acceptable to try to bury this sorry, disgraceful history. There needs to be transparency and accountability in establishing the truth, not a continued cover-up. Anything less may well breach the requirements of the European Convention on Human Rights.

Like this Statement, today’s Written Statement from the Prime Minister on the new principles asserts that the Government’s policy is not to,

“participate in, solicit, encourage or condone the use of torture or cruel, inhuman or degrading treatment”.

It would be extraordinary if it were otherwise. However, there still seems to be wriggle room for Ministers to authorise co-operation with torture and inhuman treatment, in breach of international law. Can the Minister assure us that the Ministry of Defence document revealed in May—it made clear that Ministers permitted themselves to share intelligence with allies even if there was a serious risk of torture—is now redundant and has been withdrawn, and that the principles would ban both Ministers and personnel from taking such a real risk?

On that note, can the Minister assure us that the extradited Hashem Abedi, the brother of the perpetrator of the appalling Manchester Arena bombing, was not mistreated or tortured in Libya?

The suspicion must exist that this brushing under the carpet is to please President Trump at a time when the likely next Prime Minister is keen to be chummy with him. That would be morally shameful. The ISC reported MI6 as saying that, post 9/11, there was,

“an unconditional reflex to support the United States, which … came from the political centre”—

namely, No. 10. The ISC concluded that,

“the UK saw itself as the poor relation to the US, and was distinctly uncomfortable at the prospect of complaining to its host”.

I am afraid that, once again, this sounds all too familiar.

In 2010, the coalition Government resolved to establish the truth through the powers of a judge. It is shocking that this Conservative-only Government have abandoned that attempt.

My Lords, I begin by saying that I understand the disappointment of both Front Bench spokespeople at the decision not to hold a further judge-led inquiry. Perhaps I can amplify the reasons that I gave in the Statement.

I fully understand noble Lords’ disappointment. On amplifying those reasons, am I wrong in thinking that one factor is the cost of such a judicial review? If so, what precedents are there on that?

Once the Front Bench exchanges have been completed, there will be 20 minutes for Back-Bench Members to interrogate the Minister. I will be happy to address the issue raised by my noble friend at the appropriate time.

I was trying to explain the thinking behind the decision not to have a further judge-led review. It is common ground that there were shortcomings in our response to detainee issues following the atrocities of 9/11. The Government have recognised that. Since then, there have been five independent inquiries—four by the ISC and one by Sir Peter Gibson—into exactly those shortcomings.

Last year, to ensure that we learn the lessons from not just those inquiries but the investigations carried out by the police and the internal reviews carried out by the security and intelligence agencies, we invited Sir Adrian Fulford to review and update the consolidated guidance issued in 2010. He completed his report last month; it was published today along with his covering letter. We have said that we will accept all his recommendations in full. Between now and when they are implemented at the beginning of next year, there will be appropriate training and guidance for all security personnel involved. That is all underpinned by a regime made up of the Justice and Security Act and the Investigatory Powers Act, supervised by an independent Investigatory Powers Commissioner who reviews compliance with that guidance annually. In an exchange in the other place, the ISC chairman welcomed the Government’s response to Sir Adrian’s recommendations.

To come to the point made by the noble Lord and the noble Baroness, against that background of very substantial progress, the Prime Minister decided that a lengthy and complicated inquiry, part of which would likely be held in private because of the security issues involved, would not yield proportionate benefits. That is the position as I see it.

I am grateful to the noble Lord, Lord Collins, for welcoming the publication of the report. He said that some of the civil society recommendations had not been adopted. The Government have been clear that Sir Adrian Fulford is independent. In his letter to the Prime Minister, he says:

“I have been keenly aware of the need to maintain my independence when seeking the views of … officials”.

In producing his report, he may not have incorporated all the recommendations from all those from whom he took evidence, but that is a matter for him. The Government are not minded to second-guess the recommendations of Sir Adrian in that respect.

The noble Baroness, Lady Ludford, mentioned the cases mentioned by the ISC and asked how many had been investigated by the police. These cases have been thoroughly reviewed by the Government, including in the context of the ISC’s 2018 detainee reports, which were extensive and detailed. Sir Peter Gibson had access to all relevant written records for his detainee inquiry and the entire Gibson archive was handed to the ISC for its review. On us being junior partners to the United States, the decisions taken by the UK Government are taken in the interests of the UK and nothing else. In response to the noble Baroness’s final questions, Ministers must of course abide by the law. She mentioned the MoD internal guidance. That is now being revised in light of the new principles published today.

Finally, Foreign Office officials have been in contact with Hashem Abedi since his detention in May 2017 to provide consular assistance. They have been in contact on consular matters since then. As the noble Baroness knows, he landed in the UK on 17 July and has been charged. It is important to allow the judicial process to take place. We ask media colleagues and the wider public to respect this.

My Lords, we need to remind ourselves what we are talking about. In the 21st century, our country has facilitated the kidnapping and brutal torture of large numbers of people. The recent Intelligence and Security Committee report revealed 166 further cases of such facilitation. It told us that it was thwarted from investigating these, and concluded last year that the “conditions imposed” on the inquiry,

“were such that we would be unable to … produce a credible Report”.

It went on to say that its report,

“is not, and must not be taken to be, a definitive account”.

Therefore, does the noble Lord accept that this makes the Government’s decision not to proceed with an inquiry all the more unacceptable?

I begin by paying tribute to my noble friend who founded and chaired the All-Party Parliamentary Group on Extraordinary Rendition in another place. He has consistently campaigned, in another place and now here, for greater transparency on this subject.

On the UK’s reputation, it is worth quoting what Sir Adrian said in his letter about the posture we have adopted. He says:

“The Consolidated Guidance was drafted and published in 2010. It can fairly be said to have led the field internationally in terms of providing guidance to personnel on intelligence sharing in a manner that protects human rights”.

We want to build on that reputation by implementing the proposals mentioned today.

On the ISC inquiry which my noble friend referred to, I very much regret that it was not possible to find a way for the ISC to conclude its inquiry. The Government’s Memorandum of Understanding with the ISC under the Justice and Security Act 2013 permits the committee to take oral evidence from Ministers, agency heads and senior officials. The committee wanted to take evidence from junior officials, but this is not the usual practice with Select Committees—as a former chair of a Select Committee, my noble friend will know this. We offered senior officials to speak on behalf of more junior ones, but this did not turn out to be acceptable. Having said that, all relevant documentary evidence was provided to the ISC. It took 50 hours of oral evidence and had 40,000 original documents and 30,000 staff hours. I pay tribute to its thoroughness and just have to disagree with my noble friend about his conclusion that, without the further judicial inquiry, this matter remains unresolved.

My Lords, as one who shares the concerns and misgivings of the noble Lord, Lord Tyrie, I ask my noble friend: might it be possible to have a judicial panel to review and monitor the implementation of the Fulford recommendations, so that we can have real confidence that they have been properly implemented?

It will be for Sir Adrian’s successor as the Investigatory Powers Commissioner to report annually to the Government, in particular on how the guidance on detainees is being implemented. I hope my noble friend will accept that, having set up the Investigatory Powers Commissioner with statutory powers, it would be right to leave it to him—or, indeed, her—to carry out the very important supervisory work that my noble friend refers to and to report as impartially and independently as he can on the progress being made in implementing the recommendations adopted today.

I apologise to my noble friend for intervening during the time set aside for Front-Benchers. In addition to the reasons he has given, will he let the House know to what extent the cost of a judge-led review has influenced the Government’s decision? If it has, can he refer to any other similar judge-led reviews and their cost?

I mean no disrespect to members of the judiciary, but having a judge-led review does not always lead to closure, which is the case that has been made in this example of a reason for having a judge-led review. In addition to the cost, which I will come to in a moment, there would be a serious diversion of energy and attention by those involved were we to carry out a judge-led review. As for the cost of inquiries, the Saville inquiry cost £192 million, the Chilcot inquiry cost £13 million, and the Gibson inquiry, which was incomplete, cost £2.3 million. My noble friend is right to put on the table the fact that these judge-led reviews have resource implications.

My Lords, on Monday we were reminded by the noble Lord, Lord West, that no UK personnel were directly involved in the torture and abuse of detainees, but in view of the 2018 report from the ISC, which revealed that the practice of rendition and the mistreatment of detainees were much more prevalent than we had hitherto known, does the Minister accept that there must therefore be people in the UK, sometimes at very senior level, who were aware of these practices and the mechanisms by which detainees were transferred around the world, and were therefore complicit?

The short answer is that I do not know whether there were people who were aware but did not take the appropriate action. One of the recommendations of Sir Adrian’s report is that in future, if you become aware of any mistreatment, you are under an obligation to report it. On her first point, the noble Baroness is absolutely right that the ISC found no evidence of direct maltreatment by our staff. It is right to pay tribute to our intelligence and security staff, who work hard to keep us safe, often in challenging circumstances. I pay tribute to that work but, against the background of the exchanges we have had, it is right that they should be held to the highest possible standards.

Is it not rather surprising that only now is it suggested to people that if they become aware of such a matter they should report it? After all, any company that becomes aware of such a matter in its supply chain has a legal requirement to report it and can be held responsible. This is, in a sense, part of our supply chain and I find it extraordinary that we did not take that view before. It is for that reason that I am not surprised that the public as a whole are pretty questioning about the degree to which we are prepared to own up to our responsibility in these circumstances. Perhaps further measures should be taken, merely for public confidence.

Perhaps it would help my noble friend if I refer to the specific paragraph in Sir Adrian’s letter. He said:

“It was argued in number of responses to the consultation that there should be a post-notification process for individuals who have been mistreated following a failure properly to apply any new guidance or principles. This would enable them to seek redress. Reprieve and Freedom from Torture, in a joint submission, made substantive representations regarding the UK’s international obligations in this regard”.

I will write to my noble friend when I have discovered the other part of Sir Adrian’s recommendations, which builds on the current position, but makes more explicit that there is now an obligation, if people come across mistreatment, to pass it up the chain. I recognise that the paragraph I just read out was not directly relevant to my noble friend’s question.

The Minister has revealed the Government’s recent steep learning curve on extraordinary rendition, helped along the path by the activity of my noble friend Lord Tyrie. Do the Government now take the view that extraordinary rendition and what happens to people so rendered could bring anyone complicit in it within the scope of the International Criminal Court? That seems the common-sense conclusion from what they have found.

The noble Lord may be right. If it were an offence under the law just referred to, as Ministers are obliged by the Ministerial Code to abide by national and international law, they would be precluded from taking action that ran the risk of that breach.

I draw attention to my membership of the Intelligence and Security Committee. I take the forward-looking element of the Statement and welcome the publication of The Principles, which take into account the comments of Sir Adrian Fulford and many of the important changes that the ISC recommended. One point of interest is the reference to new principles coming into effect when the necessary training and guidance are in place. That implies, as I think is the case, that further guidance will be produced by agencies and the various departments. Will that guidance be made available to Sir Adrian or his successor and to the ISC?

I am grateful to the noble Lord for his work on the ISC. He is absolutely right: The Principles, published today, will lead to internal guidance being produced by the MoD, for example, which will take the overarching principles and turn them into more specific guidance relevant to the context in which people in the MoD will work. That internal guidance will be available to the IPCO. I will take advice on whether it will also be available to the ISC; I see no reason why it would not. Sir Adrian is minded to encourage, where possible, this internal guidance being made public.

I have discovered the right paragraph for my noble friend Lord Deben. I refer him to the section called “Reporting non-compliance” in Sir Adrian’s report. On not reporting any non-compliance, it says:

“Non-compliance for these purposes is a failure to comply with these Principles. An instance where a sustainable assessment, made in good faith, subsequently proves to be incorrect will not count as an incident of non-compliance”.

That is the serious section of The Principles that addresses my noble friend’s point, which I have now located.