UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 701-iii

House of LORDS

HOUSE OF COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

JOINT COMMITTEE ON HUMAN RIGHTS

 

 

 

UK COMPLIANCE WITH UN CONVENTION AGAINST TORTURE (UNCAT)

 

 

Monday 6 MARCH 2006

MS HARRIET HARMAN, BARONESS ASHTON OF UPHOLLAND

and MR JOHN KISSANE

 

MR KEIR STARMER and MS JANE GORDON

Evidence heard in Public Questions 137 - 196

 

 

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Oral Evidence

Taken before the Joint Committee on Human Rights

on Monday 6 March 2006

Members present:

Mr Andrew Dismore, in the Chair

Bowness, L Campbell of Alloway, L Judd, L Lester of Herne Hill, L Plant of Highfield, L Stern, B

Mr Douglas Carswell Mr Richard Shepherd

________________

 

Witnesses: Ms Harriet Harman, QC, a Member of the House of Commons, Minister of State, Baroness Ashton of Upholland, a Member of the House of Lords, Parliamentary Under-Secretary of State, and Mr John Kissane, Head of Human Rights Compliance and Delivery, Department for Constitutional Affairs, examined.

Q137 Chairman: This is a resumed session with the Minister for the Department for Constitutional Affairs, which was held over from last time. I welcome Ms Harman, Minister from the Department of Constitutional Affairs and Baroness Ashton of Upholland, House of Lords; and also John Kissane, whose job title I am not entirely sure of. What is your job title?

Mr Kissane: Head of Human Rights Compliance and Delivery in DCA.

Q138 Chairman: Thank you. Do you want to make a brief opening statement, Harriet, or go straight into questions?

Ms Harman: Into questions.

Q139 Chairman: Can you tell us in general terms what the DCA's role is in ensuring that obligations under the Convention Against Torture are properly understood, and inform policy formation and practice, in other government departments and agencies?

Ms Harman: Can I say by way of introduction that Cathy is the Minister in the Lords for DCA and therefore takes responsibility for human rights in the House of Lords; but additionally she has responsibility for international issues in the DCA. That is how we will hopefully assist the Committee by dividing up our answers. Compliance with our obligations against torture: the first point to make is that without any mechanisms or any international obligations at all, there is a very deep-seated, shared conviction of everybody in this country, irrespective of political party or whatever walk of life, or whatever their situation, that torture is wrong and that it is not something that Britain would or should ever do or be involved in. That is the background. As far as the obligations across other government departments and the role of the Department for Constitutional Affairs is concerned, we, as we explained last time, are the lead department within government on human rights policy, although obviously human rights obligations fall on all other government departments; but we are the lead department on human rights policy and on policy for the prevention of torture, both in the UK and internationally. In response to your inquiry into torture we have specifically taken a further overview of the substantive laws against torture and how they are implemented to try and hopefully assist you with your inquiry and to offer you the opportunity to consider the substantive law and the means of implementation. This is the laminated grid we have shown you. We are responsible for ensuring that the substantive law complies with our obligations and that the procedures which place obligations on officials or anybody else are effectively enforced; so that that is the kind of overview. Obviously, during the course of your inquiry, if you have any points where you can see that we need to strengthen, according to our own commitments and our international commitments, the substantive law or the way it is put into practice, obviously we are very committed to this but we do not think we have the monopoly of wisdom on this, and therefore quite honestly I very much welcome the Committee having chosen this important issue for its inquiry. I hope that we will be able today to tell you how we see the picture, but if it can be improved, then so much the better.

Q140 Chairman: In that context, are there practical things that you might have to do? Would, for example, the Department advise on international legal standards when looking at diplomatic assurances against torture, or would that be for the Foreign Office itself to do?

Ms Harman: Looking at international legal standards would be something that, if it was an issue for the Home Office, they would look at it, no doubt advised by their legal team; if it emerged that it was an issue for the Foreign Office, they would look at it, no doubt with advice from their departmental legal advisers. Issues to do with prevention of torture arise in a number of different ways; but we have to be sure that we maintain the high level of commitment we have against torture and making sure that that is not rhetoric but that it is reality, backed in substantive law.

Q141 Chairman: So you would get involved directly in such advice to departments themselves?

Ms Harman: We are the lead department in international treaty obligations and therefore our officials would be discussing with officials in other government departments. There is an ongoing traffic, particularly with the Foreign and Commonwealth Office and also with the Home Office, which would involve officials on an ongoing basis.

Q142 Chairman: Do you think the nature and importance of the obligations under the Convention Against Torture are sufficiently appreciated throughout government?

Ms Harman: I think they are appreciated endogenously, if you like, for the reason that I first stated: it is part of everybody's assumption about how they would go about their business in the Government in Britain. In terms of continuously looking and scrutinising whether or not the system is as it should be and whether there are any gaps, I think there is that recognition and commitment within other Government departments, but there is in addition our responsibility as the lead department, and therefore light is shone on different parts of this issue in respect of different Government departments from a number of ways - whether non-governmental organisations, whether UN Committee, whether it is actions in Europe or very importantly whether it is your inquiry.

Q143 Lord Lester of Herne Hill: I have never used the word "endogenous" before. I think I know what it means, but there is, as I understand it, a positive obligation on the UK to make sure that torture and inhuman or degrading treatment or punishment do not occur within this country or anywhere else under our jurisdiction. Who in the Government would have responsibility for ensuring that the positive obligations are taken, for example, in the way that our troops are instructed, or customs and immigration officers, in dealing with aircraft that land in our airports and so on? What is your understanding about what is meant by a positive obligation? How is the positive obligation in fact translated into positive action to secure that there be no torture or inhuman or degrading treatment or punishment by any public authorities anywhere for which we have direct responsibility? I do not know whether the word "endogenously" meets that point. If it is endogenous, I think it means we do not need to instruct anybody; but what I am after is when it is not endogenous and when you need to give positive guidance. Who does that and who is responsible for ensuring that that is done? I hope that the question is clear enough.

Ms Harman: It certainly is. If I can just get out of the way the endogenous/exogenous issue, "endogenous" basically means coming from within, and "exogenous" means being required from without. Parliament has passed criminal laws, acts of parliament, against torture. We have entered into treaty obligations which commit us to prevention against torture. That is something that we embrace and wholeheartedly support; it is not an imposition from outside. More than that, we want to be part of a general international approach which levels up and improves the situation internationally. I would not say that you would ever be in a situation where you just rely on goodwill and just assume that it is not the British way of doing it, and therefore just rely on everybody complying with that general belief. Of course, you have to have substantive laws, which place obligations and responsibilities on people, and by the same token give rights to people that are judiciable. We have a range of substantive laws here which apply to government agencies, public authorities, and which apply when people are acting here in the UK and when they are abroad. That is the substantive law. It is the responsibility of everyone to comply with the substantive law, wherever they are, and to carry out their duties in compliance with the law. It is also our concern to make sure that should that not be the case, there is redress; so it is not simply declaratory, it is actually enforceable. Therefore the mechanisms are there, backed up by the right procedures. The responsibility lies at all levels, and rights are afforded to individuals to make sure that if the responsibility is not complied with there is the opportunity of redress.

Q144 Lord Lester of Herne Hill: I was asking not about that but about who gives the guidance in government and chases it up to make sure the law is being obeyed through our positive obligations.

Ms Harman: Probably the answer is that it depends on what you are talking about and which specific example. If you give an example, we could explain who within that agency would be responsible, whether it is a military chain of command, the military police for investigation, the military courts, or the MoD. It depends on the example that you are talking about. We have lead responsibility for the substantive law for the overall policy and for being certain that there are procedures for implementing the law, but that does not mean that there is not responsibility across government to ensure that the law is understood and obeyed in all the things that government does.

Q145 Lord Bowness: In the reporting process, Minister, the UN Committee and NGOs give the Government credit for the serious way it has engaged with the reporting process, but nevertheless NGOs have also given evidence that the process is a "ritualistic exercise" where there is not any willingness to take actions on the recommendations of the UN Committee. Has the Government's engagement in the reporting process brought about any real changes in policy or practice?

Ms Harman: The issue that is of the foremost concern in response particularly to the UN Committee's scrutiny of our substantive law and procedures is the issue of the defence to torture that is in the Criminal Justice Act 1988, section 134(5)(b)(iii). It provides a defence: "In any other case lawful authority, justification or excuse under the law of the place where it was inflicted." The question has arisen as to whether or not this could provide a defence to an action in respect of torture that is being taken in this country in respect of torture that has been carried out in another country, but is a defence that would undermine our international obligations and indeed our own commitment to it. Therefore further consideration is being undergone, and I have just been asking the Chair and the Secretary of the Committee about your timing on this because it might be quite helpful to try and get back to you with the outcome of that consideration as to the appropriateness of that defence which the UN drew attention to.

Q146 Lord Bowness: That is that specific, but there are not any other specific changes to policy or practice that you can point to that flow from the greater involvement in the reporting process?

Ms Harman: I am sure that there is a lot of ritual about the actual processes and certainly a lot of the language is strange and ritualised. However, I do not think that that should overlook or lead us to understand the fact that outside scrutiny, scrutiny from outside government or its agencies, is a very helpful thing. We would all like to believe that even if we were left entirely to our own devices we would always do the best and the right thing; but the reality is that it is helpful to know there is accountability, that there has got to be openness and answerability; and those frameworks which require transparency allow us to do what we would hope we would do even now without that, but it would make it more certain. There is a constant, ongoing process. It might be ritualised, but from my observations of seeing how we approach the work in the Department for Constitutional Affairs, it matters.

Q147 Lord Plant of Highfield: I want to ask you about the tensions between Article 2 of UNCAT, which states that there are no exceptional circumstances that may be invoked as a justification for torture, particularly in Article 2.3: "An order from a superior officer or public authority may not be invoked as a justification for torture." On the other hand, there is section 134 of the Criminal Justice Act 1988, where sub-sections 134(2) and 134(5) state that there is a defence of lawful authority, justification or excuse to a charge of torture where the offence is committed outside the UK, if the jurisdiction in which the offence is committed provides lawful authority, justification or excuse. On the one hand UNCAT says that there is no excuse and justification; and the Criminal Justice Act 1988 says that there is. I understand the Government's position is to defend section 134 of the Criminal Justice Act but to argue that the courts will be able to interpret section 134 compatibly with the Human Rights Act by saying that there would be a right to freedom from torture under Article 3 of the ECHR. This is all a bit complicated and puzzling, and I just wondered whether you think the uncertainties about the operation of these two themes in relation to torture and the uncertainties generated by these things driving in different directions would make prosecution of cases of torture very difficult.

Ms Harman: I would hope that they are not driving in different directions, that they are driving in exactly the same direction, and that there would not be any question of it making any prosecution of torture more difficult. The Convention Against Torture was brought into force in 1987 but it was not in parliamentary-drafted language for British statute law, and therefore the Criminal Justice Act 1988, the following year, was an attempt to put into law exactly what had been signed up to in the Convention. It was not to actually do something different; it was to put into statute, into law, the protections that we had signed up to in the Convention. I think it is best always if you do not have to have the courts relying on something else in order to get to the right place. It is helpful if the statute law is as clear and as unambiguous as possible, and that you do not have to refer to some convention, that it is there where it is. That was certainly the intention of the 1988 Act. The question is whether or not in particular that defence at (iii) adds anything to what already goes before it in clause 134. If it does not add anything, what is the point of it? If it adds something by way of protection against prosecution, is it actually what we want by way of a defence, or is it something we would not want? That is why we are looking to see whether or not it should stand as it is, whether it should go altogether, or whether or not it should stand with some sort of additional explanation. I do not think we want to just count on the fact that the courts might refer to something else. The whole point of the 1988 Act was to implement this, and since this question has been raised and since your Committee is looking at it, it provides us with a timely reminder to consider the extent of our compliance within the statute. I know the spirit is in the right place, but we have got to get the letter of the law compliant.

Q148 Lord Plant of Highfield: Is that also partly because the definition of torture in the 1988 Act is quite wide, and therefore you need these various defences, wider than the UNCAT ones?

Ms Harman: It is supposed to be more or less on all fours with the UNCAT definition, but in parliamentary terms. It is supposed to be no wider and no narrower. You are absolutely right in saying that it is not supposed to say, "we are against torture, but, oh, by the way, here are exceptional circumstances"; that is not the spirit of it.

Q149 Lord Plant of Highfield: If I can just finish that point, under the Criminal Justice Act "unintentionally inflicting pain" could be seen as torture, and that is the same in the Convention, I think. Perhaps this is a level of detail.

Ms Harman: I am just looking at section 134(1): "Intentionally inflicting severe pain or suffering on another, where the offender is a public official or person acting in an official capacity who does such acts in performance, or purported performance, of his official duties." I assume that unintentional acts would lack the relevant mens rea but asking me to enter into legal interpretation about something that is not actually in the statute I would feel, in front of this Committee, with the amassed legal wisdom - one would be unlikely to venture into that.

Q150 Chairman: The Government consulted NGOs before Christmas on the draft response to the UN Committee's observations. When do you think that that will be published?

Ms Harman: Very shortly. The process is that it has come to me. There was mention of the ritual nature of this - my instinct is always to try and turn these responses into language that people can read and understand, and understand the spirit as well as the letter. It is in the final throes of turning itself from international diplomatic speak into something which I hope an ordinary person can understand, and that that will be very shortly; and then it will be issued. It has been a helpful process. The NGOs have been very helpful in working with our officials on that.

Q151 Chairman: Very shortly - before the Easter recess?

Ms Harman: Yes, before your report is published anyway.

Q152 Lord Campbell of Alloway: I am delighted to follow the noble Lord, Lord Plant in this most erudite discussion about the state of the law, and I very much sympathise with the way in which you had to respond to it because it is not so; it is not so. You asked a simple question at the end of it - forget all the statutes and everything for a moment - is there any defence in law to intentional torture? I would have thought there is not, but it is not totally plain. Here I come to it: what is the DCA attitude to this? Anyone can say they have been tortured when they turn up - an immigrant or anyone from anywhere - and someone has to decide whether that is true or it is untrue. If there is no corroborative evidence, if there is no medical evidence, how is it established that they have been tortured? That is the first stage of it only, because you come to the question of admissibility of evidence and it is not the same thing as intercept evidence. I deal with admissibility of evidence. I asked these questions to Lord Newton and Lady Hayman in much the same sort of context, and they took aboard the point that there had to be, for the purpose of admissibility of evidence said to be taken under torture - that someone had to decide whether it had been or had not been. The suggestion was, which they broadly accepted - and I have spoken to both of them since - that there should be a High Court judge trained for security who hears the application ex parte and decides the first fundamental question, which is: were they tortured; is there a strong case of torture that he should say, "yes, the evidence should be excluded"? It is a qualitative decision. It is not a wholly judicial decision because you cannot have the defence there because of security reasons. This is the first practical question that I am asking the DCA what is their attitude? I have asked Lord Newton and Lady Hayman, and I know their attitude, but I do not know the attitude of the DCA or indeed of the Home Office; and it is quite possible that they do not always agree and that they would have another attitude - I do not know. That is the first problem. The second is this: for the purpose of intercept evidence one has to distinguish between its use in order to put a man on trial, which is not in question and was used extensively and effectively to get hold of the Mafia gang in America recently - that, yes - but whether it is to be used in evidence in our courts, if the judge holds that, yes, there is a sufficiently strong case that this was obtained by torture so as to render it unreliable - because evidence obtained by torture is of itself unreliable. It was those sorts of questions when you were referring in your opening address, which we much appreciated, to implementation - DCA - implementation of policy on torture with reference to the mechanisms, backed up by procedures. It is exactly on that that I am respectfully addressing you, and I wondered, if it is not inconvenient, if you could tell us exactly what your position is today.

Ms Harman: You have raised a number of important issues, and I welcome the opportunity of addressing them, but also look forward to hearing further from the Committee on. Firstly, there is the question of the state of the substantive law. Does it provide a defence wider than our obligations that we have undertaken should allow? In other words, is the substantive legal prohibition against torture watertight enough? I have raised, in response to the raising by the UN Committee, one aspect of the substantive law which we have a genuine query about; but beyond that, beyond (iii), I certainly cannot see that the substantive law is not watertight, and not actually delivering the same as was expected to be delivered by the Convention. I would welcome the Committee's views on that because that is a point that has not been raised in the past. It is a new point. I would be grateful to hear from the Committee. We are aware of the (iii) point, and we are addressing it and will get back to you, but beyond that we are not aware that there is any weakness or loophole in the law that would give a defence to torture. We are not in the business of allowing there to be a defence of torture, and no exceptional circumstances. That is the point about the substantive law that you raised. The second point is about evidence; that if you want to bring evidence that you had been tortured sufficient to mount a prosecution, how would you establish that evidence? That is a question of the evidence in each and any case. I would say, for example in the case of Zardad, despite the fact that we were here dealing with torture by a foreign national, and he was torturing other foreign nationals abroad, with most of the evidence abroad, and yet it being prosecuted in the British courts - that despite that he was convicted and sent to prison. That shows not just a paper commitment to gathering the evidence where there has been torture, but a preparedness, once somebody enters our jurisdiction and where there is evidence of torture, to marshal that evidence and bring it to court so that people can be brought to account. It is true to say that there is not any other jurisdiction that is prepared to extend its commitment against torture in the way that our substantive law enabled us to do in Zardad.

Q153 Lord Campbell of Alloway: Could I ask for clarification? In that case, with which I must admit I am not familiar, who was it who decided whether there had been torture or not? Was it an issue? Was it decided as an issue whether there had been torture? Was it argued by the defence that there had been torture? I am only asking because it matters the whole time when you are on the machinery and seeing how did it happen. How was it established that this evidence was taken under torture - on say-so or -----

Ms Harman: It was not about evidence taken under torture, it was about the evidence of torture being undertaken. Basically it was a matter for the prosecution service, the Director of Prosecutions, to decide that there was evidence that would more likely than not lead to a conviction and that it was in the public interest that there should be a prosecution, and the consent of the Attorney General was required and indeed was given; and then the case went to court and the defence argued all the defences, as they do; and a jury decided, and he was convicted. Although it was not straightforward in its context, it was fed into the British Criminal Justice System. You also raised the point about the admissibility of intercept evidence, and admissibility of evidence that might have been obtained by torture in other jurisdictions. We are assisted by the recent ruling of the Judicial Committee of the House of Lords in Re A in December 2005, which was able to set out the framework on which these issues should be approached, which we welcomed and said was extremely helpful. We did not feel that it required us to do anything different than what we were already doing, but it made a very robust, clear framework which could give us confidence that we could follow. The answer to that is Re A.

Q154 Lord Campbell of Alloway: How do you deal with the security problem? You see, so often in these cases you have the security element, "you must protect our sources". Even in the old days - and I was involved in this - you had to drop a prosecution because you could not protect your sources if you were going to have cross-examination. This is very often tied up with the security services and security evidence, and the intercept evidence. Do you reject the concept that there should be a judge cleared for security who should make these decisions as to admissibility? What is the attitude of the DCA to that proposition, which commends itself to Lady Hayman and Lord Newton?

Ms Harman: The question of the admissibility of intercept evidence is one that I am sure everybody will be aware has been the subject of considerable discussion, and in particular the need to balance the desire to bring evidence before the court; but on the other hand the desire to protect the security services from disclosures which might expose them; and we are of course aware that in many other jurisdictions, particularly other jurisdictions in Europe with which we have a close relationship, intercept evidence is available and that is something which is under consideration.

Chairman: This is an issue we are looking at in another inquiry actually, Harriet, so we can come back to that point in our other inquiry.

Q155 Lord Judd: Can we turn to diplomatic assurances. A number of witnesses in presenting their evidence to this inquiry have argued strongly that diplomatic assurances against torture are in fact and in practice unworkable. In support of this contention we have been referred to cases elsewhere where there is good evidence that people who have been deported and where assurances existed were in fact subsequently tortured. Is the Government concerned that despite the best efforts of those involved in negotiating and monitoring diplomatic assurances, that these assurances could prove ineffective in preventing torture, and as a result of that leave us in breach of Article 3 of the Torture Convention?

Baroness Ashton of Upholland: As you know, Lord Judd, the whole purpose of the memorandum of understanding is to try and provide practical and very effective means by which we will demonstrate to the courts that we have fulfilled our obligations internationally as well as ensuring that we are able to deport appropriately; so they should be judged as they will be by the courts on the practical measures taken within them. I am aware of the experiences for example in Sweden with deportations where that has been looked at, but in looking at how we draw up the MOUs, if I may call them that, we have been very mindful of experience elsewhere.

Q156 Lord Judd: There is another issue here because the states with which the memoranda are being negotiated, as far as I understand it, are already parties to the Convention Against Torture; so why are these memoranda necessary? They are necessary because, presumably, there is anxiety that torture is still continuing in those countries despite them being parties to the Convention. If we make specific bilateral agreements, is there not a danger that in doing that we appear to be condoning torture for others not covered by those agreements; and does that not in fact undermine international law on the prohibition of torture?

Baroness Ashton of Upholland: Lord Judd, I do not think that is where I would take our logic and reasoning in terms of these memoranda. You will know that there is a concern to ensure that when we are looking at deportation we have done everything in our power to ensure that those deported will be treated properly and fairly; and on that basis it seems appropriate to discuss with the particular states - you will know we have agreements with Libya Jordan and Lebanon to date, and ongoing discussions elsewhere - to see whether we have ensured these people are treated in the best possible way when they return to these countries. I do not see anything wrong in seeking to do that. I do not think it does undermine in any way either our obligations or in any way suggest that we condone anything else; we are simply dealing with very particular individuals in very particular sets of circumstances, and behaving appropriately in that way.

Q157 Lord Judd: Surely there is an issue, if we are apparently placing confidence in a regime with which we have an agreement because we are fairly certain they do practise torture, we are basically confident about that regime, but actually giving credibility to a regime that is in contravention of the Convention.

Baroness Ashton of Upholland: What we are doing is talking to governments in other nations, impressing upon them the importance that we attach to these issues, making sure that we have adequate steps within a memorandum, that they are, in response, taking their obligations to these individuals extremely seriously, and that we do this at the highest possible level to give it the highest possible effect. I think that is completely appropriate in terms of how to deal with these particular individuals in these particular situations.

Q158 Lord Judd: You would agree that if the Government has all the commitments to which the Minister of State has already referred - and I do not question that that intellectual and moral commitment is there - you do not believe that the right thing to do is to have nothing to do in this context with governments which we suspect are practising torture.

Baroness Ashton of Upholland: What we have said, and you will be very well aware, is that when we are dealing with individuals where we think it is right to deport them, we need to look very carefully at the circumstances and our concerns. Our first obligation is to our own nation and our people and within that our international obligations weigh very heavily; so it is to ensure that we can deport people where we believe it is in the best interests of our country but also fulfil our international obligations to make sure that they are not tortured or treated inhumanely. Those go hand in hand; you cannot separate them.

Q159 Lord Judd: Before I leave this matter, can I draw your attention to the fact that as we have read them, each memorandum provides for prompt and regular private visits from representatives of independent bodies nominated jointly by both states; however the minimum frequency of visits is different for each memorandum. Whilst the Libyan and Lebanese memoranda provide for medical examination to assess any ill treatment, the Jordanian memorandum does not. None of the memoranda, incidentally, make clear that the medical personnel involved will be independent of the detaining authorities, or whether a medical examination will take place privately without representatives of the detaining authorities, or to whom, if anyone, it will report. Under the Jordanian memorandum the monitoring body reports to the authorities of the sending state, whilst under the Libyan and Lebanese memoranda the report is to be made to both states. Realistically, how great an impact do diplomatic considerations have on the negotiation and monitoring of assurances? Do not the differing terms of the memoranda with Jordan, Libya and Lebanon suggest that diplomatic considerations have already had an effect?

Baroness Ashton of Upholland: No. I think what you are describing is a situation where within the context of a particular nation the memorandum is discussed and, yes, negotiated in that sense between the two states concerned. We would not expect, and I certainly would not expect, the memoranda to look identical in every case because there would be different reasons and different discussions that have taken place. It does not mean there is anything fundamentally wrong with that, but it just means that we have looked at each case appropriately and separately, and in the end the courts will decide if this is the appropriate way forward if a memorandum should enable us to deport or not.

Q160 Baroness Stern: Continuing on the subject of diplomatic assurances, I am concerned about monitoring. The organisations that might have been asked to monitor the diplomatic assurances such as Human Rights Watch and Amnesty International, I understand are not prepared to do so. I also understand - and it would be helpful if you could confirm this - that the Government is now looking for domestic human rights groups in the countries concerned that might be able to do this. Can you first say if you are looking at domestic groups; and secondly how will you find reliable and independent bodies? I am sure you have heard of organisations called Gongos, which stands for government-organised, non-governmental organisations. I am sure you have heard of them! People who work in this field will say it is extremely difficult, even if you know the country and work there, to assess whether an organisation in a country which has, shall I say, problems of torture, is independent. I would be very interested to know if you agree that that is what you are looking for, to know how the Government is going to assess whether a human rights NGO so-called in one of these countries is independent and reliable and will provide monitoring information that we could all be satisfied with.

Baroness Ashton of Upholland: You are correct in your assertions about the NGOs in terms of Amnesty and others, and I believe they have given evidence to your Committee. Secondly, there is an appropriateness for domestic organisations to be used in many cases because they understand the country concerned. They know the landscape and may already be working on these issues in any event. I do not think there is anything necessarily inappropriate with looking at domestic organisations. One of the challenges for any NGO and any voluntary organisation - and I speak from personal experience - is to demonstrate with great conviction that one has absolutely nothing to do with government in any circumstances. I imagine that what the experts who are looking at this would look for would be exactly the same things that the courts look for here, which is funding arrangements, support and advice given, what kind of work they do, their relationships - which one hopes do exist between government and the organisations - but also the way in which the organisation has been set up. If one can look at all those factors, one can, again, make an assessment; but in the end, as I have repeatedly said, it will be for the courts to determine if we have got that right.

Q161 Baroness Stern: So it is envisaged that the British embassies, the missions abroad, will be carrying out these analyses of local NGOs in order to decide whether or not the British Government sees them as independent enough to do the monitoring.

Baroness Ashton of Upholland: I do not think I mentioned the embassies or the missions. I said that officials dealing with these issues would be involved with that. The only one I have information on is the centre in Jordan that was set up in 2003, which was sponsored and supported by Amnesty and by UNESCO and the Westminster Foundation. I think, Baroness Stern, you and I would agree that an organisation sponsored and supported by those organisations probably would be regarded by any of us as having a degree of independence that is relevant and appropriate in this case. Again, if the courts felt there was an issue about the independence of an organisation, that would be something government would have to address in the course of the courts making a decision on deportation.

Q162 Baroness Stern: That was very helpful, thank you. The diplomatic assurances are not legally enforceable and there is no remedy if things go wrong and there is a breach. What would the Government do if it became clear that the person deported subject to assurances had actually been tortured?

Baroness Ashton of Upholland: The critical thing about the way the memorandum works - and this may be stating the obvious as far as you are concerned, Baroness Stern, but it is really important - is the way the memorandum is set up. It is absolutely vital it is understood that in the negotiations for this memorandum it is expected - and I believe expectations have been realised - that the nation or state responsible for the memorandum with us takes very seriously its obligations under that. These are not easily signed documents and are not easily ignored documents. Therefore we must begin from the principle that the states so doing are acting in good faith. I do not make any assumptions that they are somehow going to ignore them. If there is an issue, then the ambition is - well, we have monitoring agreements but that will become very clear and we will use the normal routes initially to ask for an immediate review of the position. What other action we then decide to take will in part depend on the seriousness of what has happened and our views on how best to deal with it. It would be wrong for me to come up with a list of things we might do at this stage when our principal desire is to make sure those engaging with us through a memorandum absolutely understand that we are expecting their obligations to be fulfilled - that they entered into that spirit in which the memorandum was signed.

Q163 Baroness Stern: Could you give any examples of perhaps one thing you might do, if it transpired that it had not resulted in -----

Baroness Ashton of Upholland: We would certainly ask immediately to have an understanding of what had happened, but I think for me to go down the road of saying, "well, if they do not do it this is what we will do to them" is completely approaching this from the wrong end. As I said there is a properly done agreement between two nation states that will be honoured, and not dealt with by saying, "oh, and by the way, if it is not honoured we will do the following things." We will of course make sure that we work closely to establish that people have been treated properly and fairly and want to take action. What that would be would depend on what had happened.

Q164 Lord Lester of Herne Hill: Baroness Ashton, it is probably a form of human rights blasphemy to say, before I ask my question, that I agree with you and the Government on what you have been saying, and I do not agree with Amnesty International for reasons I will not now go into. Having said that, I am very concerned about the Government's position in the Chahal case. If I can explain the concern, Chahal has been followed; it is a majority decision of the Grand Chamber of the European Court, and they followed it repeatedly in subsequent case law. As I understand it, what the Strasbourg Court said was that you cannot balance the absolute prohibition against torture against considerations of national security. As you know, that is what the Supreme Court of New Zealand decided this summer, contrary to the decision of the Canadian Supreme Court as well. I know you have support from a few other Member States of the Council of Europe, but as the Minister responsible collectively for complying with the Convention Against Torture, do you not risk, if you were to succeed - and I hope you will not - if you were to succeed in Strasbourg would you not risk undermining the whole point about prohibition against torture, which is that it is absolute and cannot be balanced in some way against other considerations?

Baroness Ashton of Upholland: I disagree with the principle that we would be undermining it. What we agreed to do - and, Lord Lester, you and I have discussed this in the Immigration Bill going through the House of Lords as well - so I do not have to tell you that what we are looking to do is to get the courts to think and look again at the minority view expressed in Chahal where 7 out of 17 took a different view. It is our contention that if an opportunity arises, which it has through the Dutch case, that we would ask the courts to review this - but we would always be bound by the decision of the courts, and would not move away from that in any way. Because it was an interesting minority view, and because it is ten years since Chahal happened, we think the time is right to look at that. If the courts determine that there is a different approach to be taken to Article 3, then we will follow that. We are simply asking them to look again and to give us a view. The reason the other courts followed Chahal is because it set a precedent, not because they were independent decisions. You and I have discussed this before.

Q165 Lord Lester of Herne Hill: I do not want to discuss that right now. Can I move on to the next topic, which is extraordinary renditions. I asked originally about positive steps with positive obligations, and my questions are to do with how the Government is discharging its positive obligation to ensure it is not complicit in acts of torture with regard to civil and military aircraft that come into our air space and use our airports. I say civil and military, and give an example of a Gulfstream aircraft that is chartered by the CIA - it could be civil or it could be military - that comes here and has some kind of clearance. During the debates on the Civil Aviation Bill Baroness D'Souza tabled an amendment that would have given a duty on our authorities to investigate whether there is a suspected torture when aircraft have used our airspace and landed here. The answer then given by Government was that the Chicago Convention prevented that from happening. In subsequent answers given to questions I have asked, the Government has changed, I am glad to say, from that position to agreeing that the Chicago Convention cannot be used as a shield and that the Torture Convention and the other international human rights treaties in effect trump the Chicago Convention as does custom of international law. Does the Government consider that the Chicago Convention prevents the search of aircraft suspected to be involved in acts of extraordinary rendition?

Ms Harman: As I sought to show by giving this grid of the substantive law to the Committee, this sets out what the legal obligations are. There is in addition a duty, which the UK has undertaken, to investigate positively where there might be allegations of torture having taken place. The Chicago Convention was a set of rules in order to facilitate free movement of air traffic. I do not think the notion that the Chicago Convention should be a shield behind which acts preparatory to torture should take place is in any way, shape or form acceptable. We have signed the protocol about monitoring nationally and internationally, and monitoring our own obligations. The question of the relationship between our obligations we have entered into internationally about the prevention of torture and the Chicago Convention, in terms of how we monitor compliance, will no doubt require us to look at this, but there is an obligation to investigate. That obligation lies with any of the relevant investigating authorities, and the Chicago Convention should be a facilitation for air traffic travel, which should not be a shield behind which people can get away with acts that are part of a process of taking people off to be tortured. As far as extraordinary rendition is concerned, I have not put on the grid "rendition" or "extraordinary" rendition because neither are terms known to English law. We have extradition, deportation, abduction, assault, torture, kidnapping: these are the terms which we understand and which provide certainty and clarity. Therefore, I find it helpful to look at what might be the act that is alleged and what substantive law would apply to it.

Q166 Lord Lester of Herne Hill: The reason, in my understanding, why it is called extraordinary rendition is that it happens without due process or due process of law. It is called "rendition" because it is about the transfer of someone who is a prisoner, and the reason why it is called "extraordinary" rendition in this case is because it is about the transfer of a person to a place where it is reasonably suspected they will be tortured. That is what I think it means as a description, but I apologise to the Chair because he was going to ask the question before I came in. Perhaps I can return to this afterwards.

Ms Harman: Can I follow up Lord Lester's point? I am sure that you are right about what generally the terms mean, but when we are dealing with issues which are as important, of the rules governing extradition, the rules governing deportation, the rules against torture or abduction, then it is helpful for us to focus on exactly what the law does or does not allow; and that provides us with a real sharpness and clarity. I am not saying that the terms "extraordinary rendition" - rendition merging into extraordinary rendition - can provide a kind of mission creep, but from our point of view in the DCA we want to know what is a criminal act and what is not a criminal act. Acts that are to facilitate or to conspire in or to be complicit in or to assist in torture are criminal, whatever you call them; and the responsibility is to investigate and bring people to justice. I am sure you will know, Lord Lester, more than I do, where the terms "extraordinary rendition" and "rendition" arose, but I think it is helpful for us to stick to things that are clear in law.

Q167 Chairman: The clear allegation is that the CIA are taking prisoners from A country to B Country, passing through UK airports, the purpose of which is to interrogate them in a perhaps less squeamish country - let us put it that way - and may well subject them to torture. That is the basic allegation, so we are in the territory of Article 6 of UNCAT, which requires that where there are credible allegations of torture, attempted torture or complicity in torture - forget the extraordinary rendition terminology - there should be a preliminary inquiry into the facts and immediate measures taken to secure suspect's presence in the jurisdiction. Do you accept that that is a basic obligation of the Government in those circumstances?

Ms Harman: Yes, that is an obligation we have entered into, and allegations require to be investigated by the relevant authority.

Q168 Chairman: So is the Government investigating the allegations of complicity in torture evidenced by the flights that have passed through UK airports?

Ms Harman: I think the relevant investigating authority is the police rather than the Government, and they have their own rules and obligations, and it is for them to decide whether or not the allegation seems to indicate that it is required for them to do further investigation. It is the responsibility for the police.

Q169 Chairman: The obligation is on the Government itself under Article 6.

Ms Harman: The obligation is on the Government to ensure that the acts in terms of the investigations are carried out so that the obligation flows down from the obligations entered into in the criminal law and then the accountability is back up through the Home Office to the House of Commons, but it does not mean that they do it themselves.

Q170 Chairman: If this investigation is to be done properly then the Government has to take active steps to inquire whether chartered civil aircraft refuelling in the UK involve the transfer of suspects. That is something the police cannot really do. Has the Government made bilateral contact with, for example, the American Government to ask them these questions?

Ms Harman: You will have seen the questions that were put by the Foreign Secretary to the US Secretary of State on behalf of not only the UK Government, but on behalf of Europe during the course of our presidency, and you will have seen her answers. That does not change my answer to you which is that those obligations arising under the substantive law to investigate and to ensure that our laws are enforced apply.

Chairman: In practical terms, if it is going to happen, it is going to have to be done. Richard Shepherd has to leave so we will have to adjourn to find a replacement because we will become inquorate.

 

The Committee suspended from 4.33 pm to 4.43 pm

Q171 Chairman: I was in the middle of asking Ms Harman about the obligation under Article 6, in particular the position in relation to the Government as opposed to the police - inquiries that the police would find very difficult to conduct without Government involvement. The question I had just asked Ms Harman was whether the Government was taking any active steps to inquire whether chartered civil aircraft refuelling in the UK were involved in transfer of suspects.

Ms Harman: Our obligations under Article 12: "Each state party shall ensure that it has competent authority to proceed to a prompt and impartial investigation wherever there are reasonable grounds to believe that an act of torture has been committed in any territory under its jurisdiction," or acts preparatory to. I have added that myself. I do not think there is an obligation as it stands at the moment to investigate anything because there is no evidence that there is anything wrong with it. For example, if there was transfer under extradition we would not necessarily have to investigate it. The question is whether or not it is related to moving people for the purpose of torture. The Liberty allegations I understand are on the desk of the Chief Constable of the Manchester Police who will no doubt report shortly as to what further action he plans to take arising out of that. I would definitely agree with the thrust of your point that it is our obligation to be satisfied that the investigating authorities are prepared to investigate and do undertake investigation where there is need to do it under Article 12.

Q172 Chairman: In that case could I put to you the question of the independent memorandum prepared by Senator Marty of Switzerland, who is the raconteur in the Council of Europe following the assembly on allegations of secret detentions in Europe. His memo reports clear evidence that there are individuals who have been abducted, detained and transported within Europe and handed over to countries where they face torture. He has found evidence of this. Has the Government analysed the evidence that he has come up with and, in particular, the extent to which any UK airports may have been involved in that?

Ms Harman: I cannot remember which particular one those allegations were. Can I get back to you on that?

Q173 Chairman: This was a paper of 22 January 2006. There was also a further statement on 13 December 2005. This is the Council of Europe's inquiries into this and they found evidence and on the basis of that evidence I understand that a number of other European States were also involved in the inquiries.

Ms Harman: I am advised that there are no allegations of any specific UK involvement or involvement of UK territory, but obviously we need to work with our European allies, particularly in relation to the implementation of the protocol which requires us actively to monitor what is going on.

Q174 Chairman: Germany, Italy and Spain are doing official investigations into this. Why are we not?

Ms Harman: If there is an allegation that the substantive law as it applies within our jurisdiction to actions both within our jurisdiction and outside of our jurisdiction, if there are any allegations that the law has been breached then the investigation will take place and the enforcement procedures will follow on from that. Either there have not been any allegations that specifically involve the UK, or else if there have been they will be being investigated, but as to those particular ones that you have raised I will have to ask to be able to get back to you on that.

Q175 Chairman: The Article 6 obligation is where there are credible allegations. It is not necessarily evidence. It says "credible allegations of torture". That amount of information that has now come through to me seems to suggest "credible allegations". Have any inquiries been made into the origin, destination and names of passengers held on the aircraft?

Ms Harman: We were just discussing this amongst ourselves and our view was that there was nothing in that report that actually was an allegation requiring of investigation, but perhaps I could ask Baroness Ashton to add to that, if she will. We are not reluctant to look at these things. We take our responsibilities very seriously, but I am left with a question mark here.

Baroness Ashton of Upholland: We will obviously look at what the terms of the investigations are that have been undertaken in the countries you have named. Certainly in my role in Justice and Homes Affairs in the European Union nothing has come to my attention about the nature of those investigations, but I will undertake to look at that and to report back to the Committee. My understanding is that we have an interim report before us whereas yet there is nothing that we are in need of investigating, but we are waiting for more information before making a final report and we will come back to the Committee as we get the information available.

Q176 Chairman: I am sure you have seen that the Foreign Affairs Committee recommendations and conclusions relating to this and, without wishing to prejudge the views of the Committee, I would be very surprised if we came to a different view about this. Is this really a case of hear no evil see no evil as far as the Government is concerned? There are overwhelming levels of allegations now, investigations elsewhere, and the case seems to be appearing that the Government is turning a blind eye to it.

Ms Harman: We are certainly not turning a blind eye to it and would not want to turn a blind eye to it for the reasons I said at the outset which is that we are - it almost goes without saying - totally against torture and would not want anything to be happening within our jurisdiction that we were turning a blind eye to which was part of engagement with torture. You have raised a particular point about particular allegations. In relation to the allegations made in relation to Manchester Airport in relation to Liberty, that is being looked at by the Chief Constable. The process is the relevant investigating authority needs to look at it. That is how we conduct investigations in relation to criminal activities. If there is anything beyond that that we need to tell the Committee I will make sure that we get back to you in writing very promptly in case there is anything we are missing here. I would not want the Committee to get the idea that we were happy with the only partial protection by the substantive law. We do not want partial protection; we want complete protection. We do not want it to be complete in rhetorical terms but unenforceable and ineffective and we do not want it to be frustrated by the lack of the machinery to investigate allegations. That is our position and we would want to make sure that that position is carried out in practice. I just cannot deal with those specific allegations that you are talking about but we will get back to you on that.

Q177 Lord Lester of Herne Hill: Could I come back to the Chicago Convention. You have very helpfully agreed that it cannot shield practices that involve risk of torture. The other aspect is that under the Chicago Convention, and under the regulations made under the Chicago Convention, the United States has to notify the United Kingdom of military aircraft coming into this country. That would apply to a chartered civil aircraft like Gulfstream if used for military purposes. So far as civil aircraft are concerned, again information has to be provided to the authorities in this country before our airports are used. In the Republic of Ireland there is the same uproar about the use of Shannon, for example, by the CIA in multiple flights. The only way in which the proper authorities can, by which I mean Parliament, know what has been going on is if the civil aviation authorities were able to reveal what information they have about the civil and military flights to this country over the last reasonable period of time and whether there is any possibility that they are being used for acts of extraordinary rendition involving the risk of torture. The problem is complete opaqueness. The European scrutineer that you mentioned, Mr Dick Marty, is looking at aircraft log records under the EUROCONTROL system, but the United Kingdom Government must have knowledge about its airspace and how its airports have in fact been used. That is information that the Foreign Affairs Committee was asking for and could not get. That is the information that we need to have ourselves. If there is not to be a public inquiry of that kind, it would be enormously helpful if that information could be provided to us before we complete our report because that is the positive obligation side. We have a positive obligation to find out the facts and to report the facts so that the public know what has been going on. That is what the Irish are also trying to ascertain as well.

Ms Harman: I understand that Senator Marty, who is chair of the Legal Affairs and Human Rights Committee, has produced an information memorandum on 24 January which was debated in the Parliamentary Assembly on 26 January and his final report is due in April. No doubt when he looks at the systems that are in place for transport across Europe we will consider very carefully any proposals that he should come to make. The arrangements that are in place for US military aircraft, or those operating on behalf of the US military visiting UK airfields - US military aircraft or civil aircraft on Government business - need no clearance to use UK military airfields. However, aircraft with VIPs or dangerous aircraft need to be notified in advance. Flight plans are submitted under normal air traffic rules. Military airfields are only required to collect information on the outbound destination, aircraft registration, owners and pilots' names. It might well be that this is an area when we come to considering the report of Senator Marty and we come to considering the implementation of the new obligations we have undertaken under what is described as the "Optional Protocol", i.e. the protocol for monitoring, that these issues are looked at again by the relevant Government departments.

Q178 Lord Campbell of Alloway: Putting it very simply, the Civil Aviation Authority knows what the plane is being used for, where it lands and the people who are in it. They know all that. Do they report that flight to the Home Office, to the DCA, to the Foreign Office, or do they just sit on it? What happens to it?

Ms Harman: The rules about civil aviation are not necessarily the ones where we are concerned about whether or not there might be some issue of transfer.

Q179 Lord Campbell of Alloway: We are talking about torture. We are talking about these planes being used for the purposes of torture in other parts of the world.

Ms Harman: Yes.

Q180 Lord Campbell of Alloway: Therefore is it the policy, or will it be the policy, of your department, or the Home Office, or both, to find out from the Civil Aviation Authority about these planes coming in, who is in them and where they are going, and make proper inquiries? Who will take charge? Is it your department?

Ms Harman: The rules on providing passenger lists are that international and national aviation regulations do not require the provision of passenger information when transiting UK territory or airspace. As far as the Department for Transport's records of the flights alleged by Amnesty and the question of does the Department for Transport hold records, the answer is that it does not. The Department of Transport does not issue operating permits to foreign aircraft operating on a non-commercial basis and consequently does not hold this information. What I would go back to say is that these are issues which might fall to be considered again under the question of our compliance with this optional protocol on monitoring which we entered into which requires us to internationally work together to make sure there is transparent and global monitoring. I have set forth the substantive law and the procedures. That is already very tough but if it can be made tougher then so much the better.

Chairman: I know you have to leave now, Ms Harman. I am sorry that the session has been disrupted for one reason or another. We have some other questions which we will put to you in writing. Thank you for your evidence. We will adjourn for a couple of minutes while we change witnesses.

The Committee suspended between 4.58 pm and 5.00 pm

Witnesses: Mr Keir Starmer QC and Ms Jane Gordon, Human Rights Advisers to the Northern Ireland Policing Board, gave evidence.

Q181 Chairman: I welcome to the witness table Keir Starmer and Jane Gordon for what I hope will be a slightly shorter, not so disjointed, session to talk about various aspects, in particular of AEPs. We know that you have given us a corrected memorandum in relation to one of the things that was in a previous report. I do not know whether you wish to formally state your position on that?

Mr Starmer: You have the letter. When Jane Winter gave evidence to your Committee on behalf of British Irish Rights Watch she attributed various comments to me. They were not comments I had ever made and I simply wanted to put the record straight. I have spoken to Ms Winter about that and she accepts that she misunderstood what I was saying but it was her honest view put forward at the time to the Committee.

Q182 Chairman: Do you want to make any preliminary comments before we start?

Mr Starmer: You have our reports and one of the things you will have seen from that is that we have had pretty unrestricted access to policing operations in Northern Ireland involving the use of impact rounds this summer. The reports we have written are detailed so others can understand what we have access to and form their own opinion of our conclusions.

Q183 Chairman: Turning to the questions now, how would you respond to the UNCAT recommendation that plastic bullets should be withdrawn from use in Northern Ireland?

Mr Starmer: I have been looking for that recommendation. I have pulled out the UNCAT Report. The last three reports say that plastic bullets or impact rounds should not be used as a means of riot control rather than withdrawn all together. That is a really important distinction. The rules applying in Northern Ireland are that impact rounds can only be used against an identified target and not as a means of crowd control. Therefore, if the concern of UNCAT is that they are used for crowd control, we would agree that they were being used for crowd control but we have not come across that in the operation that we have monitored. Their use as a targeted response is slightly different.

Q184 Chairman: Given the potential previous versions of plastic bullets to cause injury potentially amounting to inhumane and degrading treatment, would you think that the deployment of AEPs inevitably carries the risk of human rights violations?

Mr Starmer: No. We have thought long and hard about that and we have spoken to a number of organisations about that. The AEPs are intended as a non-lethal response where there is a risk to life or serious injury. The reality of what happened in the operation that we looked at was that for some time the police were using water canon to try and control violence against them when blast bombs and petrol bombs were thrown. It was then a question of how do you target an individual who is about to bomb you? If it is not something like impact rounds, then unfortunately the option of live fire has to be considered. It is at that point that impact rounds play a part. We have taken the view that impact rounds are not in and of themselves incapable of being compliant with human rights legislation because it depends on the circumstances in which they are used.

Q185 Chairman: You are satisfied that they are not being used for the purposes of crowd control?

Mr Starmer: What we looked at are particular operations in Northern Ireland where they were used this summer. We have been on the ground or in the control room watching everything that is happening and listening to the instructions. We have not come across - and we have reviewed for hours the available video footage - any use of AEPs for crowd control; i.e. untargeted. It is fair to say there are only two of us and there are a lot of screens and a lot of video footage. The ombudsman in Northern Ireland is looking at each and every discharge of impact rounds and therefore we have only come to general conclusions. We have seen no evidence of that. We will obviously review our position when we see the ombudsman's report. We can, from the available video footage, hear and see the rounds being discharged and form a view as to whether they are being used for crowd control or not and we do not think they have. One of the recommendations we make in our report is that a lot of video footage that the police have in respect of policing operations where there has been impact rounds discharged should be disclosed to the public so that people can see for themselves what has been happening and how they are being used.

Ms Gordon: There might have been some confusion because the riots that we were specifically looking at involved a large number which obviously constituted a crowd, but in terms of the monitoring that we did it is very clear that what the police are doing is using impact rounds when particular individuals have been identified either with blast bombs or petrol bombs in their hands. When we say that they are used in the public order context, they are used at those identified targets, as Mr Starmer said.

Chairman: I will ask Baroness Stern to talk specifically about the incidents over the last summer.

Q186 Baroness Stern: If you find that my questions cover what you have said already, just say it again shortly so that we can make sure that we have all the information in the best, most accessible form. You pointed out in your letter to us that you do not consider that the Police Service of Northern Ireland's planning of their response to the parades last summer had "backed them into a corner" - that is the basis of your talking to us - and had forced the use of - shall we call them "impact rounds" instead of "AEPs". You have been monitoring the Police Service of Northern Ireland more widely following these incidents. Have you seen occasions where use of impact rounds was avoided through careful planning and, if you have, why was this not possible in the Ardoyne and Whiterock Parades that we are discussing now?

Mr Starmer: Yes, we have come across a number of occasions when impact rounds could lawfully have been used in the sense that the threshold may have been breached, but they were not because the police were able to deal with the situation another way. One of the crucial determining factors - it is the one that led to the first discharge of AEPs in Ardoyne this year - is when the police can withdraw. If they can withdraw and take any potential violence out of the situation that is their preferred option. The difficulty in July when they were first used this year which we were watching was that you had on one side of the road a Nationalist community throwing a huge amount of stuff at the police, you had 20 yards away on the other side of the road a crowd of Loyalists who may well have responded and the police were in the middle. We were monitoring how the decision was being taken to first use the AEPs and one of the questions that Gold Command asked was can the police get out of that situation and avoid it all together and they took the decision that they simply could not because immediately they withdrew the crowd from one side would have gone straight into the other side and you would have had hand-to-hand fighting. That is when it is at its most acute because if the option to withdraw is there we see it being taken rather than go up a gradation in the use of force.

Q187 Baroness Stern: Your report on these two parades last summer concluded that the use of impact rounds was in all cases justified, at least in general terms given the level of attack on the police, and you have graphically explained that just now. Given the lack of information about the nature and extent of the injuries caused during these operations by impact rounds, are you certain that their use was human rights compliant?

Mr Starmer: No, and we have carefully avoided saying that. We have said that their general use was justified in the sense that the scale of violence was such that any threshold under the European Convention or any domestic legislation clearly had been passed. As to the individual acts and the injuries, we have not been in a position to look at those. We do not have that capacity and in any event there is a duty on the ombudsman to do exactly that and we would only be duplicating what she was doing. Only she will be able to say in each and every case was it justified, that particular firing, and what was the injury. She then makes a report which goes to the Policing Board and we will then review our general findings against that.

Q188 Baroness Stern: Do you consider that the Police Service of Northern Ireland procedures - the general procedures that they operate - ensure that more proportionate means of crowd control are used to the fullest extent possible before impact rounds are deployed?

Mr Starmer: Yes, in everything that we have observed. As you have seen from the report, over the last two or three years we have gone to the long-term planning meetings, the medium-term planning meetings and the briefing meetings before the officers go out on the road and then we have watched it for ourselves. The policies are good policies. They have been reviewed and the police do stick to them certainly in the instances where we have been observing. We are obviously alert to the criticism of: well, the day that you are there they are bound to go through the procedures, and we have double-checked against records when we were not there to find out what has been going on on other occasions. Most significantly the major disorder in September when there were literally hundreds of petrol bombs and live fire being thrown and fired at police, the speed with which decisions are having to be made and the number of them mean that to change the approach because Jane and I are there monitoring what is going on would be impossible. We have been impressed with the decision-making when we have been monitoring.

Ms Gordon: The policies that the police have on the use of force on impact rounds and water canon, they have obviously reviewed all of them. Some of them were reviewed when the Human Rights Act was implemented by barristers in Northern Ireland. Most of them adopt as an appendix to the policy the ACPO standards. For impact rounds and water canon it is specifically referred to in those guidelines and those are the guidelines that they then task officers with.

Q189 Baroness Stern: Are there other, less lethal, forms of crowd control that could be used generally?

Mr Starmer: Yes. The gradation is essentially batons in the form of truncheon batons, and going up from that water canon, going up from water canon to impact rounds, impact rounds to live fire. It is only when you go up you only move through the thresholds if the alternative less forceful option is not going to achieve the desired end. In general, when we were monitoring it, AEPs were not authorised to be used until water canon had been used and on both the occasions that they were discharged in large numbers in July and September they were only authorised after there was clear evidence that petrol bombs or blast bombs were either being used or about to be used.

Q190 Baroness Stern: You explained to us that in riot situations, such as the ones we are talking about, impact rounds were used in an accurate and discriminating way against individual aggressors which is what the Police Service of Northern Ireland guidance requires. How can you be sure of that?

Mr Starmer: We cannot be sure about that in respect of every incident, but we have looked at as much as we possibly can. The key features are that there are a large number of evidence-gatherers in operations such as the ones we monitored because it was expected that there was going to be disorder. That means there is a camera running most of the time with those that are discharging baton rounds and by reviewing that we can actually hear and see - the picture is literally someone with a baton gun - the message. Each firer has with him or her a companion officer who will be pointing out the target and you can hear "man, blast bomb, three to the right", you are getting a description of the target and that did not appear to us to be being staged. That is what was going on and for that reason the general impression we got from the video footage we saw is that it was targeted. I do want to stress that they are general findings and there are a number of incidents which are either not on video or that we have not seen for some other reason, but generally from what you could see there would appear to be the hallmarks of identifying a target.

Q191 Chairman: Even given this huge increase in numbers of use of AEPs in a particular three days in Sept when the police fired 249 and the army 140 - a huge increase in numbers - you are still satisfied that they were being used properly in accordance with the guidelines and not for any general purpose?

Mr Starmer: As far as we can be. I am sorry to keep hedging like that, but so far as we can be. From what we saw on the day, on the screens that were available, and from every bit of footage we have reviewed, that is the situation. It is right to say that it is a huge escalation because obviously they had not been used at all for several years and to go from that to hundreds being used is remarkable. The level of violence was really shocking. There were hundreds of petrol bombs being thrown and images of gunmen getting ready to fire at police lines which were captured on camera and anybody viewing the video footage would see there were numerous and serious attacks.

Q192 Baroness Stern: I have one final question. In the past we have noted in this Committee that there has been a high level of injury to children in firing plastic bullets. Were you able to make any assessment of the number of children involved in the rioting this summer and the potential for them to be targeted or, more likely, unintentionally injured by impact rounds?

Mr Starmer: We were discussing this earlier on. There are a number of components. The first is whether AEPs should ever be used against children as the target, and then the question of whether there is an inevitable risk to children when they are used against any other target because children are smaller and all the rest of it. So far as identified targets are concerned, I do not think we saw any instances where the children were targeted that we can remember, but I am not sure. The reason for that is if a child is anyone under 16, then it is true to say that certainly in Ardoyne a lot of the violence was coming from relatively young children. You would get boys of 14 or 15 throwing a lot of stuff, and although some of the individuals who got onto the roofs of shops and started throwing blast bombs were adult men, I am not sure if some of the other stuff was not thrown by younger men. It may be that the 14 or 15-year-olds who were throwing things were targeted. I cannot think of an example where we would be sure about that.

Ms Gordon: There is a difficulty here because often the people who are throwing petrol bombs will be covered both with caps and scarves, so it is quite difficult to work out the exact age group.

Q193 Chairman: How accurate are these things when they are fired? Can you get hit by accident?

Mr Starmer: We are not the experts on that. From what we can see they seemed reasonably accurate but I do not know and obviously others would know and that is an important question for them.

Ms Gordon: The records that we looked at for each one of these rounds that are fired the particular officer has to make a note and, as Mr Starmer was saying, they operate in pairs. We have reviewed all of these records and they do note whether or not the target was hit. In terms of their view there will be some that will record the target was hit and the particular part of the body and there will be others saying "target missed". When people are moving and shifting in this situation there could be a variation there.

Q194 Chairman: Have you looked at the records of these 249 to find out whether they were hit and hit in the right place?

Mr Starmer: No, not yet. The reason is that the ombudsman will be looking at that precisely when taking evidence from the officers to check the veracity of it and therefore we will do when that is done. Generally on accuracy and injuries it is true to say that certainly in the press there have been a number of photographs of injuries to heads, to faces, to eyes and to the top of the head with the suggestion that they were either not accurate, or in fact they are not being used properly because you should not be aiming for the head. We have found that very difficult to follow up because what you can see when you see the video footage is that very often people are picking stuff up off the ground to throw and the mere fact that someone is hit in the head does not tell you in and of itself very much about whether the shot was fired properly or not. It is a real problem that we have struggled with and not been able to come up with a satisfactory explanation as to whether that is evidence of them not being used properly or whether that is just inevitable in that situation. Very often what happens is someone will run out from the crowd with a missile in their hand, throw it and run away, so they are in and out very quickly and if they move at all whilst they are being shot at then it may well hit another part of their body.

Q195 Mr Carswell: Do you know how many of these hundreds fired found their mark and what happens if one of these hits you?

Mr Starmer: One of the difficulties in Northern Ireland in this particular context is the non-reporting of the injuries by those that are hit for a variety of reasons, not least that some of them are less than keen to identify themselves, and therefore we do not have a full picture of the injuries. I do not think anybody actually does and there is a loss of information. In Ardoyne nobody came forward as having any injury at all when clearly some of them must have done.

Q196 Lord Judd: If I may press you on a point that you made in response to a question by the Chairman, who was drawing attention to the increase in use and asked you if you were absolutely certain that they had been used always with care and that they were not becoming a general practice, to which I think your words were along the lines "as far as we can be aware". This is a very serious matter and with my own past ministerial experience in Defence and other experience there is always a danger that imperceptibly a culture begins to change and that something that has been regarded by responsible people in key positions as something that can only be used in very specific circumstances is used and then the point is stretched, and then it is stretched a bit more and before you know where you are, you are in a situation in which there is a far greater readiness to do this. It is not either or; these things have chemistry, if I may use that word about them. I just wondered whether you can really convincingly reassure the Committee that the vigilance and commitment is as strong, not only theoretically, but effectively as it should be?

Mr Starmer: The reason I said "as far as we know" is that we carry out monitoring of all the police involved and we are only in Northern Ireland a set number of days every month and things happen obviously when we are not there. If we know there is likely to be an issue we will make sure that we are there and that is why we were there for these particular situations in July and September, but we are obviously not prepared to sign off on anything when we have not reviewed any of the evidence. We have done a huge review for this report. We have not reviewed other uses of AEPs when we were not there. I completely understand the point that once AEPs or this kind of equipment is used then there might be a tendency for the standards to drop. I do not know. We will obviously keep a very close eye on that. They were used a number of times over the summer. On the times that we were there the threshold was high and some police officers were anxious in respect of Ardoyne that the AEPs were not used quickly enough. They took a huge number of injuries from bricks, rocks and things being thrown at them and they were concerned that so reluctant were the senior officers to use AEPs that they were delaying the decision too long. At the moment we think the threshold that is in the policies is being applied, but we have to watch that that does not change over time.

Chairman: There is a division in the Lords. I am afraid we are going to have to call it a day and conclude the meeting. Thank you for your evidence.