Torture Overseas: Ministry of Defence Policy

Statement

My Lords, I shall now repeat in the form of a Statement the Answer given earlier today in another place to an Urgent Question which asked my right honourable friend the Secretary of State for Defence whether she would make a Statement on the Ministry of Defence’s policy on co-operating with the use of torture overseas. The Answer is as follows:

“The UK Government stand firmly against torture and do not participate in, solicit, encourage or condone the use of torture or cruel, inhuman or degrading treatment or punishment for any purpose. Our policy and activities in this area are in accordance with both domestic and international law.

The MoD’s policy is fully aligned with the Government’s policy on sharing and receiving intelligence, and the Investigatory Powers Commissioner has been entirely satisfied with our activities and has not identified any issues of concern.

However, the Prime Minister has asked the commissioner to review the Government’s consolidated guidance and submit proposals for how it could be improved. Once he has done so, and the Government have had a chance to consider them—I anticipate this will be a matter of weeks—the MoD will issue new internal guidance, as necessary, in light of any updated guidance that is published”.

That concludes the Statement.

My Lords, I am incredibly grateful to the Minister for repeating that Statement. He does not need me to suggest that, in the febrile times in which we are living, it is important that all of us in this House and elsewhere respect fundamental human rights and the rule of law, which may bind us together in the times ahead.

This Urgent Question arose because of media reports that a 2018 document suggests that the MoD was giving guidance that torture might be acceptable if Ministers agreed that the potential benefits justified accepting the risk and the legal consequences that might follow. Is that reported 2018 guidance real? Have any Ministers ever agreed to sanction torture over the past year?

My Lords, I am grateful to the noble Baroness and I align myself completely with the sentiment that she expressed at the beginning of her question. Central government consolidated guidance sets out the principles which govern the interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees. That guidance must be adhered to by officers of the UK’s security and intelligence agencies, members of the UK Armed Forces and employees of the Ministry of Defence. An internal policy document within the Ministry of Defence was prepared to, as it were, make the consolidated guidance more accessible and practical for those implementing it in the field. The MoD concedes that, as currently worded, there is an ambiguity in the internal document. I should stress that this ambiguity has not led to any problem or difficulty in the actions taken by the department, Ministers or members of the Armed Forces. It has been identified that the internal policy document could give the incorrect impression that Ministers could in all circumstances simply choose to accept legal consequences and act illegally. That is absolutely not the case. Ministers may not proceed when it would be unlawful, as opposed to when they would simply be assuming legal risk, which applies to any ministerial decision. I reassure the noble Baroness that, to my knowledge and that of my officials, Ministers have in no circumstances taken a decision which was unlawful in this context.

My Lords, I too am grateful to the Minister for repeating the Answer to the Urgent Question and for his answer to the noble Baroness, Lady Chakrabarti. Today, the Times suggested that the freedom of information request said that the MoD effectively created,

“a provision for ministers to approve passing information to allies even if there is a risk of torture, if they judge that the potential benefits justify it”.

I accept that no torture has been undertaken and that nothing so far has been illegal, but does the Minister not agree that, in line with Kantian imperatives, we should not treat people as means; we should treat them as ends in themselves? Surely a potential benefit cannot outweigh the human rights of individuals.

I entirely take the noble Baroness’s point. The consolidated guidance is clear that, where Ministers or officials know or believe that a particular action will lead to torture being administered, that action may not be proceeded with. The difficulty comes where the state of knowledge may not be sufficiently high to act as a legal prohibition. In that event, were a Minister to be called upon to take a decision whether to release intelligence, that decision would be informed by detailed legal and policy advice. It is not possible to make generalisations in this context on what that advice might comprise because it would be highly fact-specific to the individual case. However, I emphasise that Ministers may never act unlawfully and officials must never advise Ministers to act unlawfully, and I am confident in saying that Ministers have not acted unlawfully.

My Lords, I think that the MoD policy adds to the evidence of complicity in torture and rendition programmes. After all, the Government accepted responsibility in the Belhaj case. Last year’s Intelligence and Security Committee report revealed deep and systematic involvement by the UK in extraordinary rendition but, due to government imposed-restrictions, the ISC was unable to produce “a credible Report”. In view of these revelations, does the Minister not agree that the time has come for an independent, perhaps judge-led, inquiry into the UK’s adherence to the convention against torture?

My Lords, I am not aware that there is solid evidence that this Government, the previous Government or the previous Labour Government engaged in the kinds of activity that the noble Baroness refers to. There was a single instance in 2004 that was admitted to, where compensation was paid. Upon investigation it was found that the security services and the department had released information that led to the detention and torture of an individual. That is the single instance that I am aware of, but I think that the noble Baroness conflates two issues in this context. The issue that she refers to relates to the Government being complicit and directly involved in the administration of torture, whereas here we are talking about the release of intelligence to third parties and agencies that might or might not engage in torture in certain circumstances. We need to make that distinction.

I strongly welcome the Statement that my noble friend has made on this matter. When I saw that the Question had been tabled, I thought that there was some evidence of a serious incident involving torture but, as I understand it, the Minister says that there is a possible misunderstanding about the rules that apply and he has indicated that this has been looked at very carefully. There can be no place for torture—it is counterproductive. In a very dangerous and difficult world, there are all sorts of temptations to go down that route but we must never do it.

My noble friend is absolutely right: torture is never justified, and the Government will not countenance a situation where they are complicit in it. The internal MoD guidance was intended to have exactly the same meaning as the consolidated guidance. We now realise that there is scope for ambiguity. That ambiguity will be removed when the guidance is revised, and we will do that upon receipt of the Information Commissioner’s comprehensive advice on how the government-wide guidance should be amended.

My Lords, in June 2018 the Intelligence and Security Committee published a report, as has already been referred to. Recommendation JJ, which can be found on page 103 of annexe A, specifically says that the consolidated guidance,

“is insufficiently clear as to the role of Ministers, and what—in broad terms—can and cannot be authorised. For example, the Guidance should specifically refer to the prohibition on torture enshrined in domestic and international law to make it clear that Ministers cannot lawfully authorise action which they know or believe would result in torture”.

The Government gave a very long response to that, with which I will not take up the House’s time—others can read it for themselves—but in the last sentence the Government promised to,

“consider this recommendation further in light of any proposals from the Investigatory Powers Commissioner”.

How on earth has it come about that someone in the Ministry of Defence can draft a policy document in the light of that specific recommendation in the terms that have been revealed today and not even seek the IPCO’s views on it? There is something fundamentally wrong with the way in which that part of the MoD operates and it has to be fixed.

The noble Lord should bear in mind that this has never been a live issue in the Ministry of Defence. The point that he makes is also weakened by the fact that the Investigatory Powers Commissioner does not judge every piece of paper that happens to circulate across government; he or she will judge a department by its actions. To date, the commissioner has judged the Ministry of Defence to have acted entirely in accordance with the consolidated guidance.

If I mis-spoke in responding to my noble friend Lord King and referred to the Investigatory Powers Commissioner as the Information Commissioner, I apologise. I did not mean to do that.