Response of the Equality and Human Rights Commission
to the Consultation:
Consultation details:
Title:
Further Inquiry into the role of the UK
Government and Security and Intelligence
Agencies in relation to detainee treatment and
rendition – Call for Evidence
Source of
consultation:
Intelligence and Security Committee of
Parliament
Date:
31 October 2014
For more information please contact:
Name of EHRC contact providing response and their office
address:
Clare Collier, Senior Lawyer,
Fleetbank House, 2-6 Salisbury Square, London, EC4Y 8JX
Telephone number:
020 7832 7800
Mobile number:
07968 377824
Email address:
clare.collier@equalityhumanrights.com
1
Executive Summary
1. The Equality and Human Rights Commission ('the Commission') considers that
an independent, judge-led inquiry into the allegations of the United Kingdom’s
(UK) alleged acquiescence or complicity in torture is required to comply with the
investigative duty on the United Kingdom (UK) arising under Articles 2 and 3 of
the European Convention on Human Rights (ECHR). We therefore, respectfully,
do not consider the Intelligence and Security Committee (the ISC) to be the best
body to conduct the inquiry arising out of those allegations, and the issues raised
in Sir Peter Gibson's report. Nevertheless, we welcome this opportunity to
provide the ISC with evidence to assist in the task it has been given by the UK
Government.
2. The Commission also considers that the Consolidated Guidance to Intelligence
Officers and Service Personnel on the Detention and Interviewing of Detainees
Overseas and on the Passing and Receipt of Intelligence Relating to Detainees
does not fully reflect the UK's obligations in international law, particularly under
the United Nations Convention Against Torture and Cruel Inhuman and
Degrading Treatment (UNCAT). We consider that the guidance should be
amended to ensure there are no ambiguities that could lead to intelligence
gathering proceeding where there is a real risk of torture.
Introduction
3. A number of United Nations (UN)1 and UK bodies2 have raised concerns about
the alleged acquiescence or complicity of British security and secret intelligence
services in the ill-treatment of prisoners and civilians in overseas counterterrorism operations in the aftermath of the 9/11 attacks on the United States of
America. These allegations concern those held in the Guantanamo Bay detention
facility and in Afghanistan, Egypt, Pakistan, Libya and Uganda. As the “A” status
National Human Rights Institution (NHRI) for Great Britain, the Commission has
also been concerned for some years about the allegations of UK complicity in
torture, and issues raised by the UK Government’s approach to the inquiry into
those allegations. We have:
1
For example, see: Concluding Observations of the Committee Against Torture for the United
Kingdom of Great Britain and Northern Ireland, May 2013, paragraph 15, available at:
http://www.justice.gov.uk/downloads/human-rights/cat-concluding-observations-may-2013.pdf and
Joint study on global practices in relation to secret detention in the context of countering terrorism of
the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms
while countering terrorism, the Special Rapporteur on torture on torture and other cruel, inhuman or
degrading treatment or punishment, the Working Group on Arbitrary Detention and the Working
Group on Enforced or Involuntary Disappearance, available at:
http://www1.umn.edu/humanrts/wgad/2010report-secret_detention.pdf
2 For example, see: Joint Committee on Human Rights, Allegations of UK Complicity in Torture, 2009,
available at: http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/152/152.pdf
2
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
corresponded with Ministers,3
made submissions to the UN Human Rights Council and several UN
treaty monitoring bodies;4 and
brought litigation in relation to the issues raised by this inquiry.5
4. The ISC has asked for evidence in relation to the 27 specific issues raised in the
Detainee Inquiry report prepared by Sir Peter Gibson, published on 19 December
2013, and the broader themes covered by that report.6 The Commission’s
evidence addresses each of the ISC’s questions. It sets out our understanding of
the UK’s obligations under international law, and the steps the Commission
considers necessary to ensure compliance with international human rights
standards.
Detainee Inquiry
5. In 2010, the Prime Minister delivered a statement to Parliament to ‘try and draw a
line under the serious allegations that had been made about the role the UK has
played in the treatment of detainees held by other countries’.7 The Prime Minister
announced that Sir Peter Gibson would chair an independent inquiry to examine
3
Equality and Human Rights Commission Chief Executive letter to Justice Secretary, 21 February
2012. Available at: http://www.equalityhumanrights.com/about-us/our-work/human-rights/internationalframework/un-convention-against-torture-and-other-cruel-inhuman-or-degrading-treatment-orpunishment
4 For example, see: Submission to the UN Human Rights Committee on the International Covenant on
Civil and Political Rights, July 2014, available at: http://www.equalityhumanrights.com/about-us/ourwork/human-rights/international-framework/international-covenant-civil-and-political-rights Equality
and Human Rights Commission Mid Term Report on the UN Human Rights Council’s Universal
Periodic Review of the UK, September 2014, available at: http://www.equalityhumanrights.com/aboutus/our-work/human-rights/international-framework/universal-periodic-review Joint Shadow Report of
the Equality and Human Rights Commission, Scottish Human Rights Commission and the Northern
Ireland Human Rights Commission, September 2014, available at:
http://www.equalityhumanrights.com/sites/default/files/uploads/documents/humanrights/CATfollowup
%20Final%202014%209%2024.pdf
5
Equality and Human Rights Commission v The Prime Minister and others; Al Bazzouni v The Prime
Minister, [2011] All ER (D) 12 (Oct), available at:
http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCEQFjAA&url=http%3A%
2F%2Fwww.publicinterestlawyers.co.uk%2Fdownloadpdf.php%3Fdown%3D1%26file%3D8DMR5ZXPF7MD
.pdf&ei=CsZQVM38J6-S7AayhoAI&usg=AFQjCNEkdm0dHNeJ6JXCERYr5kDeKdfIKw
6 Report of the Detainee Inquiry, 19 December 2013, available at:
http://www.detaineeinquiry.org.uk/wp-content/uploads/2013/12/35100_Trafalgar-Text-accessible.pdf
7 Statement given by the Prime Minister to the House of Commons on the treatment of terror suspects
on 6 July 2010: www.gov.uk/government/speeches/statement-on-detainees
Seventh periodic reports of States parties for the United Kingdom of Great Britain and Northern
Ireland, 29 December 2012, para. 555:
tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fGBR%2f
7&Lang=en
3
“whether Britain was implicated in the improper treatment of detainees, held by
other countries that may have occurred in the aftermath of 9/11”.8
6. The Commission raised concerns with the UK Government about the terms of
reference of the inquiry.9 We also urged Sir Peter Gibson and the UK
Government to ensure the investigation was compliant with its international
human rights obligations.10 The Commission and the UN Committee Against
Torture have recommended the originally promised independent, judge-led
inquiry is required to reaffirm the UK’s reputation for strict adherence to
international human rights standards.11 Lawyers acting for former detainees and
10 non-governmental organisations indicated they would not participate in the
inquiry, believing that the terms of reference and protocols would not establish
truth of the allegations, or prevent the abuses from happening again. 12
7. The UK Government decided to conclude the inquiry in January 2012, before it
had formally launched, due to the commencement of criminal investigations into
the rendition of individuals to Libya.13 A report of the preparatory work undertaken
by the Detainee Inquiry was subsequently published, which highlights eight
issues where further detailed investigation is required.14
8. Despite committing itself to another independent, judge-led inquiry once the
criminal investigations had concluded, the UK Government subsequently referred
the matter to the Committee to:
 inquire into the eight issues raised by the Detainee Inquiry;
 take further evidence; and
8
The Detainee Inquiry Terms of Reference, 2010 are available at: www.detaineeinquiry.org.uk/wpcontent/uploads/2011/06/20110706-The-Detainee-Inquiry-and-HM-Government-Terms-ofreference.pdf
9 Letter Mark Hammond, Chief Executive, EHRC to Rt. Hon. Kenneth Clarke QC MP, Secretary of
State for Justice 21 February 2012, available at:
http://www.equalityhumanrights.com/sites/default/files/uploads/Pdfs/262clarke.pdf
10
Equality and Human Rights Commission. Letter to Rt. Hon. Sir Peter Gibson. 13 September 2010.
11
Concluding Observations of the Committee Against Torture for the United Kingdom of Great Britain and
Northern Ireland, May 2013, para. 15: www.justice.gov.uk/downloads/human-rights/cat-concluding-observationsmay-2013.pdf
12
Letter to Sir Peter Gibson from Liberty, Redress, Amnesty International, Cageprisoners, Address, the Aire
centre, Freedom from Torture, Human Rights Watch, Justice, Reprieve and British Irish Watch, 14 September
2010: www.amnesty.org/en/library/info/EUR45/016/2010
13
Statement made by the Justice Secretary to the House of Commons, Hansard HC, col 752, 18 January 2012:
www.publications.parliament.uk/pa/cm201212/cmhansrd/cm120118/debtext/120118-0001.htm
Joint Statement by the Director of Public Prosecutions and the Metropolitan Police Service, 12 January 2012:
content.met.police.uk/News/Joint-statement-by-MPS-and-DPP/1400005902978/1257246741786
14
Report of the Detainee Inquiry, 2013: www.detaineeinquiry.org.uk/wpcontent/uploads/2013/12/35100_Trafalgar-Text-accessible.pdf
4
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report to the UK Government and Parliament on the outcome of its
inquiry.15
The UK Government will then consider whether a public inquiry is still warranted.
9. The Commission wrote to the Justice Secretary welcoming the publication of Sir
Peter Gibson’s report, stressing:
 The further investigations being carried out by the ISC "will not address the
concerns the Commission and others had about the shortcomings of the
terms of reference of the previous Inquiry.”
 The commitment made by the Prime Minister on 6 July 2010 to have “a
single, authoritative examination of all these issues.”
 The recent recommendation of the UN Committee Against Torture that
“the State party establish without further delay an inquiry on alleged acts of
torture and other ill-treatment of detainees held overseas committed by or
at the instigation of or with the consent or acquiescence of British officials.
It should ensure that the new inquiry is designed to satisfactorily address
the shortcomings of the ‘Detainee Inquiry’ identified by a broad range of
actors.”16
10. The Commission has since submitted, jointly with the UK’s two other NHRIs, an
interim report to the UN Committee Against Torture, reiterating that a full
independent inquiry is still “required to improve the UK Government’s compliance
with its international obligations, including a full, independent, judge-led inquiry
should be carried out in place of the ISC’s investigation into the issues raised in
the Detainee Inquiry Report with terms of reference that comply with the
investigative duty arising under Articles 2 and 3 European Convention on Human
Rights." 17
11. The Commission believes such an inquiry will be an important step forward
towards reaffirming the UK's reputation for strict adherence to international
human rights standards, including procedural safeguards such as:
 the power to compel witness testimony;
 access to all relevant documentation whether in the hands of the state or
an independent party;
15
Statement to the House of Commons by the Minister without Portfolio, 13 December 2013:
www.publications.parliament.uk/pa/cm201314/cmhansrd/cm131219/debtext/131219-0002.htm
16
Letter Mark Hammond, Chief Executive, EHRC to Rt. Hon. Kenneth Clarke QC MP, Secretary of
State for Justice 21 February 2012, available at:
http://www.equalityhumanrights.com/sites/default/files/uploads/Pdfs/262clarke.pdf
17
Joint Shadow Report of the Equality and Human Rights Commission, Scottish Human Rights
Commission and the Northern Ireland Human Rights Commission, September 2014, available at:
http://www.equalityhumanrights.com/sites/default/files/uploads/documents/humanrights/CATfollowup
%20Final%202014%209%2024.pdf
5
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formal status for the victims of the allegations to enable effective
participation such as cross-examination of witnesses through counsel;
disclosure to the parties and to the public of as much information as
possible; and
decisions as to closed proceedings and confidentiality to be made by the
inquiry panel rather than by Government.
Consolidated Guidance
12. The ISC has asked for evidence in relation to the adequacy of the Consolidated
Guidance to Intelligence Officers and Service Personnel on the Detention and
Interviewing of Detainees Overseas, and on the Passing and Receipt of
Intelligence Relating to Detainees ('the guidance') published by the UK
Government.18
13. The UK Government published this guidance following allegations of complicity
by the security and secret intelligence services in torture abroad. The guidance
sets out the approach British intelligence officers should take to obtaining
information from individuals detained overseas, including the steps which must
be taken by intelligence officers before they:



interview detainees held by other states;
seek intelligence from detainees in the custody of foreign countries; or
solicit the detention of a person by a foreign country.
14. The Commission has a number of concerns about the guidance, including:



It exposes detainees to a risk of torture for which the UK is legally
responsible and which might have been prevented had international law
been applied properly;
It exposes Intelligence Officers to the risk of criminal prosecution from
which they ought to be protected (unable as they are to rely on superior
executive orders to provide legal justification for their conduct); and
It exposes the UK to potential international liability for consenting or
acquiescing in torture by a third party in breach of a peremptory norm of
customary international law.
18
Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and
Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to
Detainees, first published in June 2010 and updated in November 2011, available at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/62632/Consolidated_G
uidance_November_2011.pdf
6
15. The Commission also considers that the guidance fails to reflect the UK’s
international law obligations in the following ways:

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

The guidance provides advice to Intelligence Officers on when they may
take steps to secure an individual’s detention by a state known to practise
torture or to obtain intelligence from an individual detained by such a state.
Such steps are only prohibited by the guidance where Intelligence Officers
“know or believe torture will take place.” They are not prohibited where
Officers are aware or have reason to believe that there is a “real risk,” or
even a “serious risk,” that an individual will be tortured.
The guidance fails to prohibit expressly the taking of steps which constitute
aiding and assisting another country’s practice of cruel, inhuman or
degrading treatment or punishment (“CIDT”).
Where Intelligence Officers do not “know or believe torture will take place”
but are aware of a “serious risk” of torture they are not absolutely
prohibited from proceeding, but they are required to take steps to reduce
the risk, and, if those steps are not successful, to consult with Ministers.
Those steps are only required, however, where there is a “serious risk” of
torture or CIDT and not where there is a “real risk.” If there is a real risk of
torture, Intelligence Officers are permitted to proceed.
The guidance permits Intelligence Officers to rely on assurances from
foreign states known to practise torture that individuals will not be
mistreated. There is, however, no requirement that any such assurance be
formally recorded or assessed by persons outside the intelligence service.
There is no requirement of any form of diplomatic assurance or even a
requirement that Ministers be informed that such assurances have been
given and are being relied upon. There is no practical system at all for
independent monitoring of such assurances.
16. The Commission and a victim of hooding in Iraq, Alaa’ Nassif Jassim AlBazzouni, brought judicial reviews challenging the legality of the guidance on
separate grounds.19
17. The Commission argued that to determine whether an individual officer or the
state could be responsible for a breach of Article 3 of the European Convention
on Human Rights, the correct legal test (according to both domestic criminal law
and international law) is whether officers were aware or had reason to believe
there was a ‘real risk’ of torture. However, the guidance prohibits officers from
acting when there is a ‘serious risk’, which is a higher threshold and therefore, the
19
Equality and Human Rights Commission v The Prime Mnister and others; Al Bazzouni v The Prime
Minister, [2011] All ER (D) 12 (Oct), available at:
http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCEQFjAA&url=http%3A%
2F%2Fwww.publicinterestlawyers.co.uk%2Fdownloadpdf.php%3Fdown%3D1%26file%3D8DMR5ZXPF7MD
.pdf&ei=CsZQVM38J6-S7AayhoAI&usg=AFQjCNEkdm0dHNeJ6JXCERYr5kDeKdfIKw
7
Commission argued, legally incorrect. Nevertheless, the court found the
distinction between “real” risk and “serious” risk was ‘elusive’ and dismissed the
Commission’s claim.
18. Mr Al-Bazzouni’s claim was based on the contention that the guidance permitted
hooding of detainees, in certain circumstances, whereas the UK’s law and policy
prohibits hooding at all times. His claim succeeded and the guidance has been
amended accordingly.
19. The fact that the Commission’s judicial review claim was unsuccessful in that no
breach of domestic law was found by the judge does not mean our concerns
were unfounded, nor that the guidance properly reflects the UK' s obligations in
international law. One of the reasons for this is that the proceedings were not
able to challenge directly compliance of the guidance with Article 2 of UNCAT
because UNCAT has not been incorporated directly into UK law.
20. Indeed, the UN Committee Against Torture’s 2013 concluding observations, while
welcoming the guidance “as an important step toward ensuring transparency and
accountability in relation to the actions of its personnel operating overseas and
their relationships with foreign intelligence services” shared the Commission’s
concerns and noted “that ambiguities in the Consolidated Guidance remain,
noting in particular the possibility to seek assurances in situations where actions
of foreign security and intelligence services pose a serious risk of torture or other
ill-treatment to ‘effectively mitigate that risk to below the threshold of a serious
risk’ (Consolidated Guidance, paras. 17-21).” It recommended that the UK
Government “should reword the guidance in order to avoid any ambiguity or
potential misinterpretation… in particular [to] eliminate the possibility of having
recourse to assurances when there is a serious risk of torture or ill-treatment, and
require that intelligence agencies and armed forces cease interviewing or seeking
intelligence from detainees in the custody of foreign intelligence services in any
case where there is a risk of torture or ill-treatment… [It] should also ensure that
military personnel and intelligence services are trained with regard to the
absolute prohibition of torture and ill-treatment.20
21. The Commission supports the UN Committee Against Torture's conclusion and
endorses its recommendation that the UK Government should reword the
guidance to ensure compliance with its international human rights obligations.
Equality and Human Rights Commission
October 2014
20
UN Committee Against Torture, Concluding Observations for the United Kingdom, May 2013,
paragraph 11, available at: http://www.justice.gov.uk/downloads/human-rights/cat-concludingobservations-may-2013.pdf
8