Joint Committee On Human Rights Written Evidence


18.  Submission from Amnesty International

  Amnesty International is writing to you in response to your call for evidence in connection with your inquiry into the UK's compliance with, and implementation of, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture).

  Amnesty International welcomes this opportunity to provide the JCHR with an update to the organisation's report published on 26 November 2004 and entitled "United Kingdom—Briefing for the Committee against Torture" (AI Index: EUR 45/029/2004) on Amnesty International's most serious concerns about the UK's compliance with the Convention against Torture.

  Amnesty International wishes to draw the JCHR's attention, in particular, to the following.

AMNESTY INTERNATIONAL'S CONCERNS ARISING FROM THE UK AUTHORITIES' MEASURES AND PROPOSED MEASURES IN THE AFTERMATH OF THE JULY 2005 BOMBINGS IN LONDON. [35]

  On Friday 5 August 2005, Tony Blair, the Prime Minister, announced certain measures that the UK authorities would be proposing in the aftermath of the July 2005 bombings in London. The Prime Minister indicated that such proposals as "necessary" were being "urgently examined" and would be forthcoming. He also stated that administrative measures which do not necessitate primary legislation would be put in place "with immediate effect".

  Amnesty International is deeply concerned that some of the measures that the UK authorities are seeking to implement are inconsistent with the independence of the judiciary, and undermine the rule of law and fundamental human rights, including:

    —  the absolute prohibition of torture or other ill-treatment, and the principle inherent to such prohibition according to which a person should never be sent anywhere where she or he risks being subjected to torture or other ill-treatment—the principle known as non-refoulement enshrined in, inter alia, Article 3 of the Convention against Torture;

    —  the right to seek and enjoy asylum, including the right of all persons who seek international protection to have their asylum claim individually and fully considered in fair and satisfactory procedures consistent with international human rights and refugee law and standards. Any intention to exclude someone from refugee status should be considered in the context of regular refugee status determination procedures, and should be subject to fundamental principles of procedural fairness, including the right to appeal against the decision to exclude, and to remain in the UK while that appeal is being considered.

  Specifically, the right not to be subjected to torture or other ill-treatment, which includes the right not to be removed to a country or territory where one would be at risk of such treatment—the protection against refoulement—applies to all individuals, irrespective of whatever offence they may have committed or are suspected of having committed, and is a rule of customary international law binding on all states. It has also been codified in treaty law, including in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), most provisions of which have been given effect in UK law through the Human Rights Act 1998.

  Amnesty International is also deeply disturbed by the Prime Minister's remarks about entirely warranted decisions of the domestic courts to strike down deportation orders in cases of individuals whom the UK authorities intended to deport to countries where they would have been at risk of torture or other ill-treatment. Amnesty International considers that, rather than attacking the decisions of the judiciary and the rule of law in this way, the Prime Minister should commit his government to compliance in this regard with the UK's obligations under international law.

  Amnesty International is also gravely concerned about the "new approach" signalled by the Prime Minister in his statement with respect to deportation orders. According to such "new approach", when the UK authorities wish to expel a person to a country where there is substantial risk that she or he would be tortured or otherwise ill-treated, the UK authorities would obtain so-called "diplomatic assurances" from the authorities of the country to which the person concerned is to be sent—or would negotiate memoranda of understanding with the authorities of that country—to the effect that the individual would not be tortured or otherwise ill-treated after return to that country.

  The organisation considers that both such "diplomatic assurances" and memoranda of understanding would amount to a circumvention of the principle of non-refoulement which is part and parcel of the absolute prohibition of torture or other ill-treatment. Accordingly, Amnesty International does not accept that diplomatic assurances or memoranda of understanding can ever relieve the sending state from its obligation not to forcibly return a person to a country or territory where they would be at risk of torture or other ill-treatment.

  In addition, Amnesty International deplores any possible future attempt to amend the Human Rights Act 1998 in the way foreshadowed by the Prime Minister as a way of purportedly obviating the obstacles which the courts have put in the way of the Prime Minister and his government with respect to deportations. The right to be free from torture or other ill-treatment, and the principle of non-refoulement inherent to such right—is inalienable, inviolable and non-derogable. Any attempts by the UK authorities to circumvent the jurisdiction of the courts domestically and prevent them from upholding such a fundamental right would also clearly fall foul of the UK's obligations under international law, including the Convention against Torture.

  The organisation is also extremely concerned at the Prime Minister's announcement that "anyone who has participated in terrorism, or has anything to do with it anywhere will be automatically refused asylum in the country". In light of Amnesty International's long-standing concern about the vagueness and breadth of the purported definition of "terrorism" enshrined in the Terrorism Act 2000, the organisation is concerned that the Prime Minister's announcement amounts to circumventing international refugee law. Amnesty International is concerned that persons may be excluded, who have been involved in acts of armed political groups or any other political activities which are not of such nature and severity that they currently should be excluded from refugee status under the 1951 Convention relating to the Status of Refugees (Refugee Convention) and its 1967 Protocol. The limited grounds for exclusion under the Refugee Convention include crimes against peace, war crimes, crimes against humanity and non-political crimes committed outside the country of asylum prior to admission to that country as a refugee. In any event, even where someone is excluded from refugee status under the Refugee Convention, the UK authorities are nonetheless bound by customary international law and provisions set out in, inter alia, the Convention against Torture and the ECHR, to respect the principle of non-refoulement, outlined above.

SO -CALLED "DIPLOMATIC ASSURANCES"

  The absolute prohibition of torture or other ill-treatment is a norm of customary international law, binding on all states. The absolute prohibition is also enshrined in treaties to which the UK is a party including Article 7 (and 4) of the International Covenant on Civil and Political Rights (ICCPR), Article 3 (and 15) of the ECHR, Article 37 of the Convention on the Rights of the Child and the Geneva Conventions of 1949 and its Additional Protocols of 1977. This prohibition encompasses an absolute prohibition on the forcible return of a person to any state, where there is a risk that they would be subjected to torture or other ill-treatment.

  As stated by the Council of Europe's Commissioner for Human Rights, "the weakness inherent in the practice of diplomatic assurances lies in the fact that where there is a need for such assurances there is clearly an acknowledged risk of torture and ill-treatment."

  The organisation considers that diplomatic assurances are both evasive and erosive of the absolute legal prohibition of torture or other ill-treatment in general and of the prohibition of refoulement in particular, in addition to being inherently unreliable, morally questionable and in practice ineffective.

  Amnesty International considers that before a person is forcibly returned to a particular country, s/he should have access to a competent, independent and impartial court, which should make the final decision, in a fair proceeding, about the presence or absence of such a risk.

  In the face of allegations that a person will be at risk of torture or other ill-treatment in the country to which they will be sent, the burden of proof should be on the sending authorities to show that they would not be at risk. The court should require the sending authorities to present reliable and credible evidence as to the absence of a risk.

  Diplomatic assurances with respect to torture or other ill-treatment cannot and should not be compared with Diplomatic Assurances sought in cases in which a person risks the death penalty. Unlike torture or other ill-treatment, the death penalty is not per se prohibited under international law, and states carry it out openly as a punishment, under their own laws. Amnesty International opposes the death penalty absolutely, but as long as the death penalty is a lawful sanction under international law, diplomatic assurances with respect to the death penalty simply acknowledge the different legal approaches of two states and make an exception to one state's declared policies to accommodate the concerns of the other.

  Torture or other ill-treatment, in contrast, are practised almost invariably by states which deny practising them. They torture or otherwise ill-treat in secret and in violation of legally binding agreements which they joined, as well as of their own laws. It would be absurd for a sending state to make even a legally binding "diplomatic assurances" agreement, (let alone accept lower-level assurances) with a receiving state, where the only reason to make this agreement is the latter state's failure to live up to other binding agreements, in human rights treaties, on the very same issue.

  It should be noted that the distinction is found in various Council of Europe treaties which make provision for obtaining diplomatic assurances in cases of a risk of imposition of the death penalty but make no such provision in cases where there is a risk that the person to be returned faces torture or other ill-treatment.

  In light of the above, Amnesty International is deeply concerned at the UK authorities' announcement in August of this year of the conclusion of a so-called "Memorandum of Understanding Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Hashemite Kingdom of Jordan Regulating the Provision of Undertakings in Respect of Specified Persons Prior to Deportation", as well as the UK authorities' ongoing attempts to conclude further similar agreements with countries such as Egypt and Algeria, among others.

INFORMATION WHICH HAS BEEN OR MAY HAVE BEEN OBTAINED AS A RESULT OF A VIOLATION OF THE ABSOLUTE PROHIBITION OF TORTURE OR OTHER ILL-TREATMENT

  Amnesty International oppose the use, reliance, proffering and admission in any proceedings of information which has been or may have been obtained as a result of a violation of the absolute prohibition of torture or other ill-treatment, by or against any person anywhere, except in proceedings against a person suspected of responsibility for a violation of the prohibition, as evidence that such information was obtained.

  As the JCHR may know, Amnesty International, together with 13 other national and international organisations, has been granted leave to jointly intervene in the conjoined appeals before the Law Lords in the cases of A and others v Secretary of State for the Home Department and A & Others (FC) and Another v Secretary of State for the Home Department from a Court of Appeal of England and Wales Judgment of 11 August 2004 (Law Reports—Court of Appeal: [2004] EWCA Civ 1123; [2005] 1 WLR 414). The decision by Amnesty International and the other organisations to intervene in this appeal is motivated by grave concern about the undermining and circumvention of the absolute prohibition of torture or other ill-treatment and the attendant obligations that give it effect.

  Amnesty International is concerned that the UK is increasingly resorting to measures that effectively bypass its obligations in respect of the absolute prohibition of torture or other ill-treatment. Since the November 2004 issuance of the Committee against Torture's Concluding Observations upon their examination of the UK's Fourth periodic report on the measures taken to implement the provisions of the Convention against Torture, the UK authorities have continued to assert their right to use statements in judicial or other proceedings obtained as a result of a violation of the prohibition of torture or other ill-treatment so long as UK agents have neither directly procured such statements or connived in their procurement.

  This interpretation was condemned by the UN Committee against Torture in November 2004. It recommended that the UK authorities ensure that they will not rely on or present "evidence" obtained through torture in any proceedings.

  Rather than complying with the specific recommendation of the Committee against Torture in respect of the use of statements obtained as a result of a violation of the prohibition of torture or other ill-treatment, the UK's Secretary of State for the Home Department will instead seek to defend before their Lordships the propriety of the above-mentioned Court of Appeal's ruling.

  Amnesty International considers that the UK authorities' position on the use of evidence procured through torture or other ill-treatment is effectively circumventing the absolute prohibition of such treatment, rather than fulfilling the UK's international obligations under the Convention against Torture and other relevant international human rights law and standards. The organisation considers that such obligations include the taking of effective measures to prevent torture or other ill-treatment wherever it occurs, including by applying an exclusionary rule to prevent such information from being adduced in judicial or other proceedings. The UK's stance has given a "green light" to torturers around the world, whose unlawful conduct would find not only an outlet but also a degree of legitimacy in UK courts.

  Amnesty International also considers that the use as evidence in legal proceedings of statements obtained as a result of a violation of the prohibition of torture or other ill-treatment would bring the administration of justice into disrepute, and provide a cloak of legality for that which is unlawful.

  Finally, Amnesty International is concerned that the UK authorities' position has effectively brought about a conflict between the UK's international obligations flowing from the prohibition of torture or other ill-treatment and domestic law.

THE RIGHT TO MENTAL AND PHYSICAL INTEGRITY OF A NUMBER OF PEOPLE CURRENTLY DETAINED ON THE BASIS OF DEPORTATION ORDERS

  Following the reaching of the above-mentioned memorandum of understanding with Jordan, and pursuant to the UK authorities' ongoing attempts to conclude others with at least Algeria and Egypt, at least nine people were arrested in August of this year.

  Amnesty International is deeply concerned at the mental and physical health status of these people who were held until March 2005 under Part 4 of the Anti-terrorism, Crime and Security Act 2001 (ATCSA), were then subjected from March to August 2005 to so-called "control orders" under the Prevention of Terrorism Act 2005 (PTA), and since August 2005 have been detained on the grounds that their removal from the UK will take place within a reasonable time and that the UK authorities are taking steps with due diligence to effect such removals (that is, thanks to the reaching of the above-mentioned memorandum of understanding with Jordan and the UK authorities' ongoing attempts to agree further similar agreements with Egypt and Algeria, at least).

  In light of public statements issued by Birnberg Peirce & Partners in August 2005, Amnesty International understands that seven men of those represented by the above-mentioned firm of solicitors were suddenly arrested on 11 August 2005 and have since been detained separately very far away from their families (for those who are married), their lawyers and crucially their doctors, in Long Lartin prison in Worcestershire and Full Sutton prison near York.

  The organisation further understands that one of them was taken from the psychiatric hospital where he had been an inpatient, since his release from Broadmoor Hospital, under a "control order" on 11 March of this year. This individual is one of two men who were moved from Belmarsh prison to Broadmoor Hospital in 2004 after three years of indefinite detention without charge or trial and a dramatic deterioration of their mental and physical health.

  Amnesty International shares the solicitors' deep concern at being informed that those detained at Long Lartin prison were placed on suicide watch. These include a third man who had been released from Belmarsh and subject to virtual "house arrest" in 2004 because his mental health had been so affected by the protracted incarceration without charge or trial. To Amnesty International's knowledge most, if not all of these men, are asylum-seekers or refugees; so too are their families; and most of them are victims of torture.

  According to the information made public by their solicitors, those detained at Full Sutton prison were held in the so-called Special Secure Unit that had been closed down a decade ago on the basis that it was unfit for human habitation. Reports indicate that cells in that unit are even smaller than those in Belmarsh prison. The windows look out onto an exercise yard so dark that lights have to be kept on at all times. In August 2005, the above-mentioned solicitors stated that the unit was literally covered in cobwebs and that it remained unfit for humans.

  Amnesty International is deeply concerned at what appears to be the UK authorities' continued disregard of the recent serious psychiatric history of each of these individuals and the reasons for that history, and at the consequences which their renewed detention will almost inevitably have on their mental and physical health.

AMNESTY INTERNATIONAL'S CONCERNS ABOUT THE DETENTION OF PEOPLE WHO HAVE SOUGHT ASYLUM

  Amnesty International has long been concerned about the detention of people who have sought asylum in the UK. In June 2005, the organisation published a 94-page report entitled "United Kingdom—Seeking asylum is not a crime: detention of people who have sought asylum" (AI Index: EUR 45/015/2005) which we have attached to this letter for your ease of reference. The above-mentioned report examines the increased use of detention both at the beginning and at the end of the asylum process and questions whether the UK is meeting its obligations with respect to the right to liberty and the right of people to be treated with dignity and humanity under international refugee and human rights law and standards.

  Amnesty International documented the hidden plight of those who have sought asylum in the UK and are detained solely under Immigration Act powers. Detention is an extreme sanction for people who have not committed a criminal offence. It violates one of the most fundamental human rights protected by international law, the right to liberty.

  Amnesty International is concerned at the denial of justice suffered by many people as a result of their detention being in many cases effectively arbitrary and, therefore, unlawful. Individuals are often taken into detention on the basis that a bed is available within the detention estate, rather than on considerations of necessity, proportionality and appropriateness.

  In light of the above, the organisation is concerned at the human cost of the increased use of detention in the UK. Amnesty International considers that detention is not being carried out according to international standards, is arbitrary and serves little if any purpose at all in the majority of cases where measures short of detention would suffice.

  Amnesty International found that many people were detained far away from their families or friends, in often remote locations and in grim, prison-like establishments. Some detention facilities are former prisons, others are purpose built as removal centres. At the time of being taken into detention, the individuals concerned were not told for how long they would be detained.

  Those interviewed told Amnesty International that while in detention they felt abandoned and demoralised. Several of them complained of being subjected to racist and other verbal abuse while in detention. Some interviewees experienced great difficulty in relaying their stories even months after their release from detention. A number of them appeared to be suffering from severe depression.

  In theory, the UK has a policy of non detention of particular vulnerable groups, including torture survivors. However, Amnesty International is concerned that those whose age or physical or mental health or circumstances make them unfit for detention are nevertheless being detained.

AMNESTY INTERNATIONAL'S CONCERNS ABOUT THE UK'S ATTEMPT TO CIRCUMVENT ITS INTERNATIONAL OBLIGATIONS UNDER THE CONVENTION AGAINST TORTURE WITH RESPECT TO THE CONDUCT OF UK AGENTS AND TROOPS ABROAD

  As detailed in its above-mentioned briefing to the Committee against Torture, Amnesty International has expressed serious concern, inter alia, about allegations of unlawful killings, torture or other ill-treatment and other violations of international human rights and humanitarian law by UK forces at the time when the UK was recognised as an occupying power in Iraq, namely prior to the official handing of power to the Interim Iraqi Government in June 2004. [36]

  Amnesty International notes that in its Concluding Observations in November 2004 the Committee against Torture expressed concern at the UK authorities' assertion that certain provisions of the Convention against Torture could not be applied to actions of the UK in Afghanistan and Iraq. The Committee stated that the Convention applied to all areas under the de facto control of the UK authorities.

  Similarly, the Committee against Torture recommended that the UK government "should ensure that the conduct of its officials, including those attending interrogations at any overseas facility, is strictly in conformity with the requirements of the Convention [against Torture] and that any breaches of the Convention that it becomes aware of should be investigated promptly and impartially, and if necessary the State party should file criminal proceedings in an appropriate jurisdiction".

  Amnesty International continues to be concerned about the UK authorities' assertion that human rights law (including key provisions of the Convention against Torture) does not bind the conduct of UK agents and armed forces in Iraq and Afghanistan.

30 Sepember 2005










35   Please note that Amnesty International hopes to be able to submit its concerns in response to the JCHR's call for evidence on the human rights compatibility of the provisions of the draft Terrorism Bill 2005 published on 15 September 2005, as well as the JCHR's inquiry on "Counter-terrorism Policy and Human Rights". Therefore, the organisation is confining its comments in this letter to concerns arising in respect of the UK obligations under the Convention against Torture, which, are the subject of the present JCHR inquiry. Back

36   See in particular pp 26 to 33. Back


 
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