Examination of Witnesses (Questions 1-19)
THE LORD FILKIN, CBE, ALECK THOMPSON AND HARRY CARTER
WEDNESDAY 3 JULY 2002
1. Lord Filkin, welcome to the European Scrutiny Select Committee. It is nice to have you here. The Committee decided to invite you along because of our deep concerns about what we see happening in relation to Article 3 of the European Convention on Human Rights (ECHR) which provides that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment". Your predecessor's letter appeared to take issue with the interpretation of Article 3 of the European Convention on Human Rights by the European Court. Does the Government accept that, whatever the circumstances, there is no place in civilised countries for the use of torture or inhuman or degrading treatment or punishment?
(Lord Filkin) Yes, I think the position on that is clear. Before I develop on that may I just introduce my colleagues from the Home Office who may join with me in seeking to give you full and accurate answers to certain statements. May I also make a few preparatory remarks as well?
2. You are certainly welcome to do that as well if they are brief and allow the Committee to put its questions.
(Lord Filkin) They will be brief. First of all, as I hope you are aware, the United Kingdom's derogation from Article 5 of ECHR by the provisions of part 4 of the Anti-Terrorism, Crime and Security Act will be the subject of judicial consideration before the Special Immigration Appeals Commission within the next weeks. I am therefore advised that in the circumstances it would be inappropriate for me to comment on either the derogation or Part 4 of the 2001 Act at a time when there are legal proceedings pending before a court which will address these issues. I am sorry that we gave you only short notice of that, but we only got clarity of that view late last night.
3. Thank you for that. The Committee did consider the matter in its private session and we shall be asking you questions on Article 3 and not on Articles 4 and 5.
(Lord Filkin) I am very grateful to the Committee for its careful consideration of the Commission document and the quite clearly important issues they cover. The Committee has focused on the very important issue of the obligations under Article 3 of ECHR and how this can be reconciled with ensuring the security of the state and of its citizens at the same time. Clearly it is that wish to be able to fulfil both of those obligations which is at the centre of the discussions. The Government are fully committed to combatting terrorism and also to our Article 3 obligations. We are determined, as you would expect, that the United Kingdom shall not provide a haven for persons to pursue terrorist activities. Where prosecutions for such activities are possible, that is the most desirable course of action. As I am sure the Committee knows, that is not always possible and in some cases the alternative of removal is not possible because of Article 3 considerations. The Commission's working document, which is a very preparatory initial exploration of some of these issues, makes clear the absolute nature of Article 3 and that no exceptions or derogations from it are permissible under any circumstances. The Commission notes that the case law may develop following the events of 11 September last year. As Angela Eagle said in her letter, the Commission is not suggesting that we should be seeking to avoid obligations under Article 3, but equally it is not ruling out the potential for some re-interpretation in the future. It would be wrong to rule out any discussion or exchange of experience on these matters between EU Member States.
4. Your predecessor also indicated her readiness to examine the "scope for reinterpretation of Article 3 requirements". Have you given any thought to what the "reinterpretation" would be?
(Lord Filkin) The issue is essentially about circumstances where the United Kingdom Government believes that someone is in Britain and is a risk to the security of the British people, a real risk. Yet we may judge that there is some risk of an infringement of Article 3. The first avenue we think is at least worth reflecting on is whether the potential risk to Article 3 could be overcome by seeking assurances that we believed were satisfactory from the state where we were considering their return. The Committee will be aware of the example of Sweden, where they returned two people where extradition was sought to Egypt. They decided that they could do so because they received assurances from the Egyptian Government which were satisfactory. That is clearly one area where we think there is scope for discussion between the European Union Member States. I would emphasise at this stage that all we are talking about are discussions of experience rather than coming at this stage to any firm or hard view about what might be the way forward.
5. That is very helpful. What the Committee was concerned about in your predecessor's reply was the reference to the balancing act between individual protection needs and the security interests of a Member State, to which you have also alluded. It was in that context that the Minister referred to a potential for future re-interpretation. Just for clarification, are you seeking a reinterpretation of the application of Article 3, purely domestically, or are you seeking to achieve agreement with our European partners?
(Lord Filkin) At this stage we are clearly not proposing a reinterpretation of Article 3. What we are seeking, not in any way to fudge the point, is, recognising that there could be harder circumstances than the example I gave you, by that I mean that it is not inconceivable that there could be circumstances in which we thought there was a real and present threat to the safety of British citizens by somebody in this country, we could not bring them to trial, for reasons I could expand on but shall not unless you want us to, yet they were present in the United Kingdom as a risk. The hard issue is whether one would never think there was an issue to debate about balancing the security of British citizens against the obligations that ECHR 3 also imposes. In a sense that is positing the really difficult area of debate. One wants to do both but doing both in some situations might be impossible and that is the area. We have no firm view on this yet, but we do think it is right at least to reflect on these issues.
6. In regard to the Swedish case if similar circumstances arose here, it is obviously a question of judgement, but what benchmark would you use to measure the assurances being given by the home government to which those people would return?
(Lord Filkin) I am speculating, but I would have thought one would take a whole range of circumstances into account. Not to put too crude a point on it, one would make a judgement about whether one could be reasonably confident that the word of the government which was giving it was likely to be honoured, whether there was a process for monitoring compliance with the assurances which were given, the past record of the government in terms of what evidence there has been of human rights abuses. Those would be some of the sorts of issues which I would have thought we might give consideration to, and others no doubt, before coming to a judgement. In such circumstances it would not be the judgement of the United Kingdom acting on its own. In such circumstances it is almost certain that a person, if we made such a judgement, would seek to challenge it in the courts and then the courts would make a determination on those judgements.
7. Are there any circumstances in which the risk to security justifies torture?
(Lord Filkin) As a well intentioned liberal person the instinctive reaction feels no, because clearly as a civilised society we abhor that. We live in very strange times and I am not seeking to qualify it. I am seeking to indicate the actual environment we are in. We would not have thought that something like 11 September could have happened until it did so. Without being dramatic, we do know that the citizens of Britain are not as secure as we might have thought they would have been two years or so ago. That is nothing dramatic, it is a statement of common sense in the light of what has happened. At the absolute level, it would feel wrong to expose a person to torture, but there will be difficult areas and grey areas in some of these issues. If it were a choice between leaving a person in Britain, not under arrest, at risk of causing serious damage to other citizens, then I do not want to be put on the spike of the torture itself, but we would have to weigh up whether the risk to British citizens meant we should ignore their interests just simply because of the interests of the terrorist threat. One would hope one did not have to face those dilemmas, but not to look at them would be fudging our responsibilities as Government.
8. First you said no and you would not seek to qualify it. But with respect you have qualified it. I ask you again: are there any circumstances in which you as a Minister of Her Majesty's Government consider that torture is justified because there is a risk to the security of the state. Is torture ever justified?
(Lord Filkin) I should have thought that the British Government's position generally on this has been that torture is not justified.
9. Not just generally. It is very specific. Is inhuman treatment or punishment ever justified on the grounds of a risk to the security of the state?
(Lord Filkin) Let me posit.
10. I am asking for an answer to a question. Is it ever justified?
(Lord Filkin) If you bear with me I shall seek to give to you the best answer I can. I do not want to give a flippant one or a crude one.
11. I just want a straight answer: yes, or no.
(Lord Filkin) I do not think that the issues are that simple that they allow of an intelligent response in that way. Let us take an example where we believe that a country which had not the best of human rights records and they did not have what we thought was the best and fairest judicial system in the worldit is not difficult to envisage plenty of countries like thatthey did not practice torture to the best of our knowledge, but they did imprison people without, we thought, the fairest of trial or representation, in circumstances like that, the Government would have to make a judgement, if there were a very serious threat to the security of citizens in this country, and weigh that in the balance of whether they did not extradite somebody or return them to their own country. You will be aware that such a judgement would be challenged in the court and the courts would make the decision rather than simply the British Government.
12. That is a very long answer but you still have not answered the question. I was simply asking you not to talk about extradition, but whether torture or inhuman treatment and punishment and degrading punishment are ever justified. You have not answered the question. You have answered something else. Are they ever justified?
(Lord Filkin) Let me try again. Balancing a threat to national security against a risk of torture is the issue. The issue is not about whether there is a certainty of torture. If there is a certainty of torture the position is clear. I think that has answered your question.
13. No, it has not, but that is by the way.
(Lord Filkin) Let me repeat it then. What I said was that if there is a certainty of torture then that is clear. The issue is balancing the risk of torture against the risk of security.
14. Are you a lawyer, Lord Filkin?
(Lord Filkin) I am glad to say not.
15. My understanding is that Article 3 reads that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment", not that no one shall be subjected to the risk of or anything else. We have had a couple of cases where clearly the Government, because of breaches of that clause, have come to arrangements where the recipient government has accepted that they will not carry out the death penalty on someone being returned. That means that what we do is clarify whether that clause will be breached or not. That is not a matter of risk it is a matter of coming to an arrangement. What we seem to have here is a situation where what you said was that you could balance out the risk to a British citizen or British citizens from someone we held in our prisons against the likelihood that that person would be tortured when returned home, if we knew that the regime they were being returned to used torture or inhuman or degrading treatment. What was said by your predecessor was that there was a balancing act between these things: not a question of risk and debate but whether it was on balance possible that we would send someone back to a country which would breach that Article 3. We are trying to clarify this. What you seemed to say earlier was that the Governmentbecause you are not sitting there as Lord Filkin liberal minded individual but as a Government Ministerwere prepared to enter into a deal in Europe that on balance if they thought it was more of a risk to British citizens they would send people back to a regime which was known to carry out either a death penalty or inhuman treatment. Is that the position of the Government or is it not? I do not want a theoretical debate. Tell us the position of the Government.
(Lord Filkin) It is not the position of the Government.
16. What is the balancing act then?
(Lord Filkin) If we think the person would be exposed to the death penalty or would be tortured we would not send them back and that is categoric.
17. The discussion has largely turned on the word torture. Of course it also includes the other ingredients, all of which are wrapped up into Article 3. One person's inhuman or degrading punishment in one country could be very different in another. I am sure there are certain norms which could be established. Would you not agree that in the sensible analysis which it seems to me you are giving to this, bearing in mind the seriousness in the real world of the terrorist threat and their complete ruthlessness and the fact that they are quite often just not interested in our norms, the need for your analysis is right, but that perhaps there are certain lines which can be drawn in the area of inhuman or degrading treatment or punishment where even the most determined offender of human rights would say in these circumstances, perhaps Guantanamo Bay may be an example to some extent of this, there are circumstances in which we shall be able to re-calibrate this? Do you not agree that under Lord Hoffman's judgment in the case of the Home Secretary and Simms and O'Brien, where he says that the British Parliament can legislate in a manner inconsistent with the Human Rights Act 1998 providing it does so in a clear and unambiguous manner, that this in fact might provide an opportunity to re-calibrate this issue if on analysis it turns out to be justified?
(Lord Filkin) Yes, I would agree with the first point. May I just put it in context because the Committee's questioning is quite rightly strong and focused on this? The context is essentially that after 11 September the Justice and Home Affairs Committee basically asked the Commission to look at a whole range of issues about security in the European Union. One of those was the issue of whether there is a problem with people who are terrorist or there are strong reasons to believe they are and yet it appears to be virtually impossible to remove them. All the Commission has done at this stage is produce a working paper which is not a prelude to legislation, it is not an imminent proposal for the Justice and Home Affairs Committee, it is basically seeking to try to identify whether other Member States have identified such a problem and whether there is any need to discuss that issue. It is no more than that at this stage and our position is that there is a potential problem in a very limited number of cases and it is sensible to have discussions. But those discussions have hardly started and, as we would wish to make clear, were they to do so we would wish to keep this Committee very fully informed of any movement beyond what is at this stage a working paper to trawl experience and no more than that.
18. Is there a definition of exactly what we are talking about? We are talking about torture, inhuman and degrading treatment. Is there some definition of that because we would all probably have different interpretations of what that means? The reason I ask that question is that we talked about extraditing someone from Sweden to Egypt and I am sure people in the room might be thinking of Britain extraditing someone from a far flung country which carried out torture and inhuman or degrading treatment. Of course the United States of America keeps people in prison for 20 years and then executes and some might argue that was degrading and inhuman treatment and some might argue that was torture. Is there a definition and what is it?
(Lord Filkin) The best answer I can give is that in the case of Ireland versus the United Kingdom in 1978 the court characterised the activities described by Article 3. They said that torture is deliberate inhuman treatment causing very serious and cruel suffering. They described inhuman treatment as treatment which causes intense physical and mental suffering. Then on degrading treatment it is a fairly long paragraph so I shall just read a highlight but we can deposit it with the Committee. Treatment which would equate to a breach of Article 3 will therefore be severe. There is a high threshold for the application to each. In essence, yes, the court have effectively in the United Kingdom established such a definition.
19. I am very grateful to you for the clear definition that the British Government would never return anyone without having the assurance that they would not be subjected to torture or inhuman behaviour. Given that this is a working paper it is important for you to realise the Committee have you here because this is where we think we should be engaged in the process on behalf of Parliament alongside the executive and working parties in Europe before they become Council decisions that we cannot do anything about. Could you also give us an assurance that the British Government will argue very strongly that no agreement will be reached in Europe which will breach that British assurance you have just given us that no one would be sent back? No one should be sent back from any European country in breach of Article 3 would be the argument of the British Government I presume.
(Lord Filkin) Yes, is the answer to that.