The Equality and Human Rights Commission (EHRC), the UK’s official human rights watchdog has advised the government that its new guidance on torture may violate UK and international law.
From the EHRC website,
“The Commission asked whether -- in its current form -- the guidance does enough to protect officers in the field because it may leave them with the erroneous expectation that they will be protected from personal criminal liability in situations where they may, unwittingly, be liable for crimes committed and condoned by others.”“The Commission warned that failure to amend the guidance as requested may result in judicial review proceedings being issued.”
The guidance sets out the steps which must be taken by intelligence officers “before they interview detainees held by authorities overseas, seek intelligence from detainees in the custody of foreign countries or solicit the detention of a person by a foreign country.”
The guidance, which was published following evidence of MI5 complicity in the torture of British Muslims abroad – including Binyam Mohammed and Faisal Mostafa –sets out the steps which must be taken by intelligence officers “before they interview detainees held by authorities overseas, seek intelligence from detainees in the custody of foreign countries or solicit the detention of a person by a foreign country.”
“The guidance provides that officers cannot proceed with any of these actions if they ‘know or believe’ that torture will take place. However, there is no such prohibition where the officer knows there is a ‘serious risk of torture.’”
“In these cases, the guidance suggests that the officer can proceed provided the risks can be mitigated through “caveats or assurances” or if Ministers have been consulted.”
In a formal “letter before action”, John Wadham, EHRC Group Director, Legal, argues that the guidance “incorrectly suggests that these principles are consistent with UK domestic law and international law obligations, including the UN Convention Against Torture” and suggests what steps the government can take to bring the guidance in to line with the law.
The issue of British security officials’ complicity in torture has been shrouded in controversy. As well as being complicit in the torture of British Muslims, MI5 has, in the past, been accused of trying to bribe terror suspects in to dropping torture allegations, while the FCO has been accused of failing to raise complaints made by British nationals held and tortured abroad with the governments of the countries in which the abuse is alleged to have taken place.
The coalition government has reportedly said that the guidance does not need to be amended and that the government is “confident that the guidance is legal and consistent with domestic and international law.”
Human rights lawyers and NGOs, however, have expressed concern that the current guidance could allow UK intelligence officers to remain complicit in torture if they consult ministers. They also say that “attempts to mitigate the risk of torture would probably involve one agency seeking an assurance, in private, from another agency that is known to use torture routinely.”
The EHRC has warned that, unless amended, it may seek a judicial review of the guidance. John Wadham states that, “the government now has the opportunity to bring its guidance within the law so that the intelligence service itself and its individual officers do not unwittingly leave themselves open to costly and time consuming court action."
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