Joint Committee On Human Rights Nineteenth Report


Formal Minutes


Thursday 18 May 2006

Members present:

Mr Andrew Dismore MP, in the Chair
Lord Campbell of Alloway

Lord Judd

Lord Lester of Herne Hill

Baroness Stern

Mary Creagh MP

Dr Evan Harris MP

Baroness Stern declared a non-pecuniary interest in that her husband is a panel member of the Billy Wright inquiry.

Draft Report [The UN Convention against Torture (UNCAT)], proposed by the Chairman, brought up and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.

Paragraphs 1 to 25 read and agreed to.

Paragraph 26 read.

Question put, That the paragraph stand part of the Report.

The Committee divided.
Content, 4

Lord Campbell of Alloway

Dr Evan Harris MP

Lord Judd

Baroness Stern

Not Content, 2

Mary Creagh MP

Mr Andrew Dismore MP

Paragraphs 27 to 128 read and agreed to.

Paragraphs 129 to 131 read, as follows:

"129. As we have previously stated, although diplomatic assurances are capable, in principle, of satisfying the State's obligation not to return an individual to torture, in practice they should be treated with great caution in case they undermine the absolute nature of the prohibition on deportation to torture. The adequacy of each diplomatic assurance will be a matter for consideration by the courts, and we welcome the clear statements from both the Home Secretary and Baroness Ashton that the adequacy of a diplomatic assurance to prevent a risk of torture is a matter for assessment by the courts alone, rather than the executive. Whether a diplomatic assurance will be sufficient to allow deportation will depend on the circumstances of the case, including the nature and extent of the risk of torture and the degree to which the terms of the assurance, including monitoring mechanisms, are sufficient to dispel that risk. The value of the assurance in practice will depend on all the circumstances, including, as the Supreme Court of Canada said in Suresh, the human rights record of the government giving the assurances, the government's record in complying with its assurances in the past, and the capacity of the government to fulfil the assurance, including its ability to control its security forces and other agents when dealing with individuals such as the would-be deportee.

130. The evidence we have heard in the course of this inquiry, and our analysis of the Memoranda of Understanding already agreed, has confirmed our view in our earlier report that diplomatic assurances should be treated with great caution, and should not be presumed to provide any additional safeguard against the risk of torture. Assurances are the products of diplomacy, and as such are no substitute for binding, enforceable legal guarantees. Their agreement is the product of diplomatic negotiation, the demands of which will often preclude precise prohibitions on and safeguards against ill treatment. The Government's response to the Foreign Affairs Committee Report confirms that the main sanction for breach of an MoU will be the serious damage done to diplomatic relations between the two States. Even more worrying, diplomatic considerations are likely to take precedence in the monitoring of assurances following deportation. As Baroness Ashton made clear to us, the Government would be very reluctant to question the good faith of another Government with which it had agreed an assurance. Furthermore, diplomatic assurances do not contain any enforcement mechanism, which would allow for redress or sanctions in the event of their breach. In the absence of a mechanism of enforcement, assurances against torture from states that are known to practise torture in breach of their obligations in international treaty law as well as customary international law, are unlikely to be reliable.

131. Whilst, therefore, in principle there could be could be cases in which a diplomatic assurance against torture could be adequate to alleviate the risk of torture, in our view these cases will be rare. Where, as will normally be the case, a diplomatic assurance against torture is sought from a state where torture is widespread or systematic, then detailed and precise guarantees, as well as intensive, frequent and scrupulously independent monitoring mechanisms would be the minimum necessary for the diplomatic assurance to carry any significant weight in the assessment of whether the person to be deported would face a real risk of torture. In regard to the particular Memoranda of Understanding which have already been agreed by the Government with the Governments of Lebanon, Libya and Jordan, we note that the human rights records of those and other states with which Memoranda are currently being negotiated, are such as to necessitate clear safeguards against ill-treatment, backed up with effective, transparent and independent monitoring mechanisms. We are not as yet satisfied that those mechanisms are in place in relation to Lebanon and Libya. In our view, the Memoranda of Understanding so far agreed by the Government with those two countries therefore do not yet provide a sufficient basis for alleviating a real risk of torture, to permit deportation in compliance with Article 3 UNCAT and Article 3 ECHR. In the case of Jordan, as we have noted above, a Jordanian human rights NGO has been appointed as the monitoring body. We recommend that the Government should make available further information about this NGO to enable judgments to be made about its likely independence and effectiveness in this role."

Motion made, to leave out paragraphs 129 to 131 and insert the following new paragraphs:

"129A. The evidence we have heard in this inquiry, and our scrutiny of the Memoranda of Understanding agreed between the Government and the Governments of Libya, Lebanon and Jordan, have left us with grave concerns that the Government's policy of reliance on diplomatic assurances could place deported individuals at real risk of torture or inhuman and degrading treatment, without any reliable means of redress. We are very concerned that reliance on the good faith of Governments which are known to use, tolerate or be unable to prevent torture in breach of international obligations, is simply not a sufficient guarantee to protect against torture, which of its nature is a clandestine practice, takes place often without official authorisation and may be very difficult to detect. In our view, the recent cases of Ahmed Agiza and Maher Arar demonstrate this danger: both were tortured, one in Egypt, the other in Syria, following their deportation to those countries on the basis of assurances that they would not be tortured. As those unfortunate cases show, the consequences for the individuals concerned are so grave that this is a risk which the UK should not be prepared to take.

129B. Reliance on diplomatic assurances also has a second, less immediate, but nonetheless deeply corrosive effect. The pursuit of bilateral agreements in relation to torture undermines the multilateral framework of the UN and other treaty bodies concerned with the eradication of torture. At a time when the universal and absolute prohibition on torture needs more than ever to be supported and reaffirmed, the use of diplomatic assurances against torture undermines that universal legal prohibition, and presupposes that the torture of some detainees is more acceptable than the torture of others. In thus undermining the universal legal prohibition on torture, it risks damaging the validity and effectiveness of international human rights law as a whole.

129C. We therefore agree with the UN Special Rapporteur on Torture, the European Commissioner for Human Rights and others that the Government's policy of reliance on diplomatic assurances against torture is an attempt to circumvent the well established international obligation not to deport anybody if there is a serious risk of torture or ill-treatment in the receiving country. We further consider that, if relied on in practice, diplomatic assurances such as those to be agreed under the Memoranda of Understanding with Jordan, Libya and Lebanon present a substantial risk of individuals actually being tortured, leaving the UK in breach of its obligations under Article 3 UNCAT, as well as Article 3 ECHR."—(Lord Judd.)

Motion made, and Question put, That the paragraphs be read a second time.




The Committee divided.
Content, 4

Lord Campbell of Alloway

Dr Evan Harris MP

Lord Judd

Baroness Stern

Not Content, 2

Mary Creagh MP

Mr Andrew Dismore MP

Proposed new paragraph 129A.

Amendment proposed, in line 1, at the beginning, to insert the words "Following the case-law of the European Court of Human Rights, in our view diplomatic assurances are, in principle, capable of satisfying the State's obligation not to return an individual to torture, and cannot be regarded as irrelevant to an assessment of the risk of torture. States are entitled both to seek such assurances from other states and to take them into account when deciding whether the individual concerned will be exposed to a real risk of torture if deported. We disagree with the views of the human rights NGOs whose evidence suggested that it is wrong in principle to seek bilateral diplomatic assurances about torture, and who declared that they would not be willing to take part in monitoring of assurances. We find this view defeatist. In our view, the human rights NGOs should be striving to make diplomatic assurances work in practice, by agreeing to assume the independent monitoring role envisaged by the memoranda of understanding."—(Mary Creagh MP.)

Question put, That the Amendment be made.

The Committee divided.

Content, 2

Mary Creagh MP

Mr Andrew Dismore MP

Not Content, 3

Dr Evan Harris MP

Lord Judd

Baroness Stern

Question put, That the paragraph stand part of the Report.



The Committee divided.

Content, 4

Lord Campbell of Alloway

Dr Evan Harris MP

Lord Judd

Baroness Stern

Not Content, 2

Mary Creagh MP

Mr Andrew Dismore MP

Paragraph accordingly agreed to (now paragraph 129).

Proposed new paragraph 129B.

Question put, That the paragraph stand part of the Report.

The Committee divided.

Content, 4

Lord Campbell of Alloway

Dr Evan Harris MP

Lord Judd

Baroness Stern

Not Content, 2

Mary Creagh MP

Mr Andrew Dismore MP

Paragraph accordingly agreed to (now paragraph 130).

Proposed new paragraph 129C.

Amendments made.

Question put, That the paragraph, as amended, stand part of the Report.

The Committee divided.

Content, 4

Lord Campbell of Alloway

Dr Evan Harris MP

Lord Judd

Baroness Stern

Not Content, 2

Mary Creagh MP

Mr Andrew Dismore MP

Paragraph, as amended, accordingly agreed to (now paragraph 131).

Paragraphs 132 to 183 read and agreed to.

Summary read and agreed to.

Resolved, That the Report be the Nineteenth Report of the Committee to each House. —(The Chairman.)

Several Papers were ordered to be appended to the Report.

Ordered, That the Chairman do make the Report to the House of Commons and Baroness Stern do make the Report to the House of Lords.

Ordered, That the provisions of House of Commons Standing Order No 134 (Select committees (reports)) be applied to the Report.

[Adjourned till Monday 18 May at 4pm.


 
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