House of Commons - The FCO's human rights work in 2011

The FCO's human rights work in 2011 - Foreign Affairs Committee Contents

4 Torture

Torture prevention

47. The Government says that it consistently and unreservedly condemns torture.[84] The UK was an early signatory to the 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Unlike China, Russia, the US, India, Pakistan, Japan and the majority of countries in the MENA[85] region, the UK has signed the Optional Protocol to the 1984 Convention (OPCAT), which requires states party to the Protocol to set up or designate at a domestic level independent bodies to monitor places of detention, and to allow visits to such places by representatives of the UN Subcommittee for the Prevention of Torture.[86] The UK is active in encouraging states to sign both the Convention and the Optional Protocol.[87]

48. The FCO's policy on torture prevention was visibly strengthened in two ways during 2011:

Guidance for FCO staff on reporting information or concerns about torture and mistreatment overseas was updated and reissued;[88]
A Torture Prevention Strategy was published in October, setting out three aims: that legal frameworks to prevent and prohibit torture should exist and should be enforced; that states should have the political will and capacity to prevent and prohibit torture; and that organisations on the ground should have the expertise and training to prevent torture.[89]

A checklist of activities which FCO posts might use in order to meet these goals is set out at the end of the Guidance.

49. Publication of the Strategy for the Prevention of Torture was generally welcomed in evidence to our inquiry. Mr Mepham said that the Strategy was "fairly comprehensive and touches all the right bases",[90] and Mr Croft described the Strategy and guidance as "very welcome".[91] REDRESS, an organisation which assists survivors of torture in obtaining redress for their suffering, likewise welcomed the Strategy, although it proposed that the Strategy should be expanded, to provide clarity about the right to redress and compensation enshrined under Article 14 of the UN Convention Against Torture:

Each State Party shall ensure in its legal system that the victim of an act of torture obtain redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.[92]

REDRESS said that it understood that the UK's obligations under the UN Convention Against Torture included enabling redress and compensation for victims to apply not just to victims of torture perpetrated in the UK or by UK agents operating overseas, but also to those who suffered when the UK was complicit in acts of torture perpetrated principally by others, and to UK nationals and others tortured abroad but now present in the UK.[93]

50. We invited the Government to respond on the extent of application, asking specifically whether the responsibility under Article 14 was deemed to extend to

Non-UK nationals or non-UK residents who had been victims of torture perpetrated in the UK or by UK agents operating overseas;
victims of acts of torture perpetrated principally by non-UK nationals but in which it was established that the UK was in some way complicit;
UK nationals tortured abroad.

The Government replied that, in its view, the obligation under Article 14 was owed to anyone to whom Article 2 of the Convention applies, which it deems to include "anyone within the borders of the United Kingdom, as well as any person outside the UK who is nonetheless considered to fall within territory under UK jurisdiction".[94] This would indicate a rather narrower application than that suggested by REDRESS.

51. Domestic implementation of the Convention Against Torture (and of the Optional Protocol) is a matter for the Ministry of Justice, and we note that there is work under way and discussion at an international level on reparations.[95] We have not explored this issue in detail and we therefore make no comment here, except to voice our concern that the Government's policy on reparations to victims of torture, and on eligibility, seems as yet imperfectly defined.

52. We strongly welcome the publication by the FCO of the Strategy for the Prevention of Torture 2011-15. We believe that there is merit in keeping a tight focus to the Strategy, and we do not support suggestions that its scope should be widened to cover policy on reparations for victims of torture, as this needs to be considered on a case by case basis.

Removal and deportation

REMOVAL OF ASYLUM SEEKERS

53. Under Article 3 of the UN Convention Against Torture, signed by the UK in 1985, no state party to the Convention "shall expel, return ('refouler') or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture." In 2011, 52,526 people subject to immigration controls (i.e. they were not EEA nationals) departed the UK either voluntarily or because they were removed. 8,869 of those (nearly 17%) had sought asylum or were dependants of asylum-seekers.[96] A small proportion of departures are as a result of deportation orders, enforced either following a criminal conviction or when it is judged that a person's removal from the UK is conducive to the public good.[97]

54. The Guardian reported on 6 June that a former member of the Tamil Tigers intelligence service claimed to have been tortured after having been deported from the UK to Sri Lanka in June 2011. According to The Guardian, his claims were supported by medical evidence. This is not an isolated example: Human Rights Watch told us that it had "documented many cases of torture and ill-treatment (including rape) of failed asylum-seekers at the hands of security forces".[98] The FCO's 2011 Human Rights and Democracy report referred to the open session held by the UN Committee against Torture in November 2011 and to the UN Committee's subsequent report, which noted allegations of widespread torture, secret detention centres, enforced disappearances and deaths in detention in Sri Lanka.[99] We note that concerns about human rights abuses in Sri Lanka have led the Prime Minister of Canada to indicate that he would not attend the Commonwealth Heads of Government Meeting in Colombo in 2013 unless he saw evidence of progress.[100]

55. The Guardian reported that the Home Office was still "insisting" that it was safe to return Tamils to Sri Lanka, and it added that several other Sri Lankans had been forcibly deported in late May. Immigration statistics show that a total of 481 asylum seekers were removed or departed voluntarily to Sri Lanka in 2011.[101] Human Rights Watch told us that the UK High Commission in Colombo had examined recent allegations of torture and ill-treatment of failed Tamil asylum-seekers on their return to Sri Lanka and had concluded that the allegations were untrue.[102] When we raised the case cited by The Guardian with Mr Browne and FCO officials, they said that "there is certainly a substantial amount of maltreatment and torture in Sri Lanka, but we do not yet have substantiated evidence that the people whom we have returned … have been maltreated".[103] However, the FCO could not tell us during the evidence session whether there had been any attempt to speak to the person cited by The Guardian;[104] and when we pursued this in writing, the Government initially replied that it did not comment on individual cases, that it took allegations seriously, and that asylum and human rights applications from Sri Lankans were "carefully considered on their individual merits in accordance with our international obligations against the background of the latest available country information".[105] Subsequent enquiries elicited a statement that a UK Border Agency representative had indeed spoken to the individual concerned; but the FCO said that it was unable to provide further details of the case as they were confidential, and some information was subject to the Data Protection Act 1998.[106]

56. In addition, the Government failed to give a direct answer to our request for an assurance that it was content that its policy on deportation of Sri Lankans was not putting people at risk of torture.[107] We find it unsatisfactory that the Government has not been more forthcoming to Parliament about its efforts—in general and in specific cases—to assess the level of risk to the safety of those who are removed from the UK.

57. We note that the Home Affairs Committee has also voiced disquiet about the return of Sri Lankan asylum seekers to their country of origin and that it raised the matter with the Chief Executive of the UK Border Agency, Mr Rob Whiteman, in December last year. He acknowledged concerns about returns both to the Democratic Republic of Congo and to Sri Lanka, and he accepted that "we clearly do need to look at the conditions of what happens when we make returns".[108] We also note the conclusions of the Independent Chief Inspector of the UK Border Agency in his Annual Report for 2010-11, in which he cited evidence that country information supplied by the UK Border Agency's Country of Origin Information Service had on occasion been used selectively or otherwise inappropriately.[109]

58. We do not have the information necessary to judge whether or not recent claims by Sri Lankan Tamils of torture in Sri Lanka following their deportation from the UK are accurate or fabricated. However, the routine air of the FCO's initial responses to our questions has not given us particular confidence that the FCO is being as energetic as it might in impressing upon the UK Border Agency the degree of risk. We note the institution of a dialogue at official level with Human Rights Watch, Freedom from Torture and the UK Border Agency on the process and information used to assess cases.[110] We welcome the new channel of communication established between FCO officials, non-governmental organisations and the UK Border Agency to discuss the assessment of risk to those who are removed from the UK. We encourage the FCO to be energetic in evaluating reports by non-governmental organisations and media sources of torture of deportees from the UK, including in Sri Lanka, and in spelling out the risk to the UK Border Agency. We also request that the Government clarify the division between the roles of the FCO and of the UK Border Agency's Country of Origin Information Service in gathering the intelligence needed to make accurate assessments of the risk to deportees upon their return to their country of origin.

DEPORTATION WITH ASSURANCES

59. The Government continues to operate a policy of deportation with assurances (DWA). The FCO's 2011 Human Rights and Democracy report describes deportation with assurances as "an alternative action available to us when our preferred option of prosecution is not possible for foreign nationals who threaten our national security". Under DWA arrangements, the UK is provided with assurances from the receiving country that the human rights of the deportee will be respected upon their return, and monitoring arrangements are put in place. The effect is to enable the UK to deport people to countries where there are substantial grounds for believing that detainees might otherwise be subjected to torture, without infringing the terms of Article 3 of the UN Convention on Torture and Other Cruel, Inhuman or Degrading Acts.[111] Arrangements are already in place with Jordan, Algeria, Lebanon and Ethiopia; a further agreement was signed with Morocco in September 2011, although negotiations over the monitoring arrangement were still in train when the FCO's report was published in April 2012.[112] The most high-profile case under the DWA regime is that of Abu Qatada, who the Government believes to be a threat to the UK's national security and who it seeks to deport to Jordan, where he faces charges of plotting bomb attacks.

60. Human rights groups remain opposed to the use of arrangements for deportation with assurances. Amnesty International said that it did not consider that promises of humane treatment given by governments that practise torture and cruel, inhuman or degrading treatment were reliable,[113] and Human Rights Watch agreed. Mr Mepham told us that a "paper promise" from such governments "does not really stack up" and "is not really worth the paper that it is written on".[114] The Government, for its part, points out that its approach on deportation with assurances was endorsed by Lord Macdonald in his review of counter-terrorism powers, and that individuals are able to challenge deportation in the UK courts.[115]

61. The Government's approach has often been upheld by the courts. In 2005, the Special Immigration Appeals Commission (SIAC) ruled against a person who the Home Secretary wished to deport to Algeria in the interests of national security: the Commission concluded that the parties to the verbal assurances were acting in good faith and that it was "not conceivable" that they had been given "deceitfully" or that the Algerian Government's attitude would change when the person in question was returned.[116] An appeal against deportation by an Ethiopian terrorist suspect was likewise dismissed at SIAC in September 2010, and the Court of Appeal rejected an appeal against that judgment in June 2012.[117] A ruling by the Court of Appeal that Abu Qatada could not be removed from the UK because there was a risk that evidence obtained through torture might be used in a trial in Jordan was overturned in February 2009 by the then House of Lords. Although the European Court of Human Rights has since ruled that Abu Qatada could not be returned to Jordan (on the basis that evidence potentially obtained under torture might be admitted at the claimant's re-trial), it nonetheless held that the Memorandum of Understanding between the UK and Jordan underpinning the arrangements for deportation with assurances would not violate Abu Qatada's rights under Article 3 of the European Convention on Human Rights.[118]

62. The FCO says that it "will continue to seek new DWA arrangements in 2012, including considering DWA cases without an overarching framework arrangement, and conduct an independent review".[119] We invited the FCO to clarify the meaning of "without an overarching framework agreement". Mr Vijay Rangarajan, Director of Multilateral Policy at the FCO, told us that overarching frameworks were negotiated when there was a "substantial number of people" who might need to be deported, and when the country concerned was willing to conclude an overarching framework.[120] When fewer people are concerned, an ad hoc arrangement without an overarching framework could be sufficient and could be reached more quickly.

63. If arrangements for deportation with assurances are to be trusted, then verification of compliance will be essential. When asked who would do the verification, Mr Rangarajan told us that it would vary from one to state another, depending on whether the organs of state could be trusted.[121] The memoranda of understanding with Jordan, Lebanon and Ethiopia each refer to an independent monitoring body to be nominated jointly by the two countries concerned. There is no such reference in the exchange of letters which underpins the DWA arrangement between the UK and Algeria.

64. We share the unease held by others with the practice of deportation with assurances, although we acknowledge that those threatened with deportation have the right to challenge a deportation order in the UK courts. However, we believe that arrangements for monitoring and verification should be strengthened and made public. We note that Lebanon is currently the only one of the countries with which the UK has agreed arrangements for deportation with assurances to have signed the Optional Protocol to the UN Convention Against Torture (OPCAT), under which states party undertake to permit regular independent monitoring of places and conditions of detention. We conclude that arrangements for deportation with assurances would command greater confidence if both parties to the agreement were to have signed the Optional Protocol to the UN Convention Against Torture (OPCAT) which would signify that the states concerned permitted regular independent monitoring of places and conditions of detention. We also recommend that the Government should inform Parliament of the names of the individuals or bodies responsible for monitoring the conditions under which those deported are being held, and the arrangements made for follow-up monitoring.

65. Memoranda of Understanding relating to existing DWA arrangements are public documents and are available on the FCO website.[122] We note the undertaking by the Secretary of State to notify Parliament and the Committee if and when new DWA arrangements are agreed.[123] The House was informed of the most recent agreement, concluded with Morocco, by means of a Written Ministerial Statement on 8 November 2011; and copies of the Memorandum of Understanding were placed in the Library of the House and on the FCO website. However, none of the memoranda of understanding concluded so far have been subject to any Parliamentary procedure. A more stringent process applies to comparable instruments, such as:

Statements of Changes to Immigration Rules, which may be "disapproved" by a resolution of either House of Parliament;[124]
Treaties, which are laid before Parliament and which may, in many cases, be challenged by Parliament.[125]

We also note that Parliament may question a Department's intention to take on a contingent liability or to make a gift in excess of £250,000: a Minute is laid before Parliament and Government approval is withheld for 14 sitting days, during which a Member may signify objection.[126] Treasury guidance states that any such indemnity "should not normally go live until the objection has been answered".[127]

66. We acknowledge the efforts made by the Government to keep Parliament informed of new arrangements for deportation with assurances. However, these are matters of such significance within Parliament that we believe that a greater degree of accountability is warranted. We recommend that texts of memoranda of understanding between the UK and foreign states relating to arrangements for deportation with assurances should be laid before Parliament. We further recommend that such memoranda of understanding should not come into force before 14 sitting days have elapsed, during which time Members may signify any objection.

67. We welcome the forthcoming independent review of deportation with assurances (DWA) arrangements announced in the FCO's 2011 Human Rights and Democracy report. We request that the Government indicate what exactly will be reviewed, by whom, and to whom the results of the review will be made available.

Rendition

68. The practice of extraordinary rendition has been a running concern for this Committee and its predecessors over the years. Our recent report on British foreign policy and the 'Arab Spring' included an annex collating the statements made by Ministers to the Committee on the subject.[128]

69. Our report last year on the FCO's human rights work in 2010-11 set out the chronology of events since the Prime Minister's announcement to the House on 6 July 2010 that an independent inquiry, led by a judge, would "look at whether Britain was implicated in the improper treatment of detainees, held by other countries, that may have occurred in the aftermath of 9/11".[129] Sir Peter Gibson was appointed to lead the inquiry, which became known as the Detainee Inquiry.

70. When the terms of reference and the protocol for how the Inquiry would operate were published, on 6 July last year, there were widespread criticisms of the process by human rights groups; and on 4 August 2011, lawyers representing Britons detained in Guantánamo Bay, and 10 NGOs (including Amnesty, Liberty, Justice and Human Rights Watch) wrote to the Inquiry saying that they could not co-operate in a process where evidence would be heard largely in secret, where the Government would decide what would be published, and the victims would not be able to question, or even identify, witnesses from MI5, MI6, or other agencies.[130] Human Rights Watch reiterated that view to us, describing the remit and powers of the Inquiry team as "seriously deficient".[131]

71. On 12 January this year, the Director of Public Prosecutions and the Metropolitan Police Service announced that allegations made in two specific cases, concerning the alleged rendition to Libya of Abdel Hakim Belhaj and Sami al-Saadi and the alleged ill-treatment of them in Libya, were so serious that it was in the public interest for them to be investigated immediately. Given that investigations may take many months if not years, the Justice Secretary announced to the House on 18 January 2012 that the Detainee Inquiry would cease its work. The Justice Secretary said that "the Government fully intend to hold an independent, judge-led inquiry, once all police investigations have concluded, to establish the full facts and draw a line under these issues".[132] In the meantime, it has been announced that the Detainee Inquiry team has supplied to the Prime Minister a report on its preparatory work, and the Government has said that it remains committed to publishing as much of this 'interim' report as possible.[133]

72. On 27 January this year, the two Libyans who alleged British involvement in their rendition to Libya in 2004—Abdel Hakim Belhaj and Sami al-Saadi—instructed Leigh Day & Co to serve papers on Sir Mark Allen, a former MI6 officer who is alleged to have been complicit in the operation. The papers represent a first step in bringing a civil action for damages. On 17 April, following publication of an article in the Sunday Times which quoted sources as alleging that the Rt Hon Jack Straw MP, when Foreign Secretary, had personally authorised rendition of the two Libyans, Leigh Day & Co served papers on Mr Straw. We note that the Intelligence and Security Committee has suspended an inquiry into the allegations made by Mr Belhaj and Mr al-Saadi pending police investigations. It plans to resume its investigations, however, as soon as it is able to do so.[134] We note that although the issue does not at present fall within the scope of the House's sub judice resolution (as it is not currently active in a UK court), the Government has no intention of entering into any public discussion on the matter while it is the subject of litigation.[135] For reasons of both practicality and propriety, therefore, we have similarly refrained from examining the issue in any detail.

73. The decision to bring the Detainee Inquiry to a premature end was disappointing but understandable, given the difficulty of proceeding in parallel with police investigations and, potentially, court proceedings. However it is not clear to us why the police investigations should be so protracted. The long drawn-out nature of police investigations into cases of alleged rendition has had an unacceptable impact on the work of the Detainee Inquiry and of this Committee and others. We request that the Government explain to us why the investigations by the Metropolitan Police into claims made by Abdel Hakim Belhaj and Sami al-Saadi are expected to take so long to conclude.

74. The next step should be to try to reach agreement with interested parties—including human rights groups—on a future inquiry format which is trusted by all concerned. Representatives of Amnesty International and Human Rights Watch told us that they had not yet had discussions with the FCO about the future inquiry, although Mr Croft envisaged that the Government might once again propose a format which fell short of their requirements.[136] We recommend that the Government and human rights organisations should start to explore ways of finding a mutually acceptable basis on which the successor inquiry to the Detainee Inquiry can proceed. However, while we value transparency in principle, we question whether total transparency could be applied to all proceedings of the successor inquiry without hindering, rather than assisting, the inquiry team in getting to the truth of the matter.

75. We make no comment at this stage on developments in allegations of UK complicity in rendition. We reiterate, however, that we would be deeply disturbed if assurances given by Ministers over many years to this Committee's predecessors that the UK had not been involved in rendition were shown to be inaccurate. We expect to return to this issue.

84 Human Rights and Democracy: the FCO 2011 Report, page 49 Back

85 Middle East and North Africa Back

86 See http://www2.ohchr.org/english/law/cat-one.htm Back

87 Human Rights and Democracy: the FCO 2011 Report, page 50 Back

88 Human Rights and Democracy: the FCO 2011 Report, page 49 Back

89 FCO Strategy for the Prevention of Torture 2011-15 Back

90 Q 21 Back

91 Q 25 Back

92 http://www2.ohchr.org/english/law/cat.htm Back

93 HR 07 para 4 Back

94 Ev 106. The latter category "is determined in light of all the circumstances of a given case". Back

95 Qq 91-97 Back