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New guidance on torture may violate UK and international law

The Commission has advised the government that its new guidance on torture may violate UK and international law.

The Commission has written to the Prime Minister and the heads of the UK's intelligence agencies expressing “serious concerns” about the lawfulness of the guidance and providing advice on how it can be brought within the law.

The Commission asked whether -- in its current form -- the guidance does enough to protect officers in the field because it may leave them with the erroneous expectation that they will be protected from personal criminal liability in situations where they may, unwittingly, be liable for crimes committed and condoned by others.

The Commission warned that failure to amend the guidance as requested may result in judicial review proceedings being issued.

As Britain’s first United Nations accredited National Human Rights Institution, and the body tasked by Parliament with promoting and monitoring human rights in the UK, the Commission has an obligation to consider possible violations of domestic and international human rights laws.

The Commission has welcomed the positive steps that the government is taking to tackle the issue of the torture of detainees overseas. These include announcing an inquiry into the UK’s involvement in torture and rendition to be chaired by Sir Peter Gibson, in addition to issuing the guidance itself.

The guidance was published following evidence that UK security and intelligence officers involved in counter terrorism operations may have been complicit in the torture of detainees by foreign governments.  The guidance sets out the steps which must be taken by intelligence officers before they interview detainees held by authorities overseas, seek intelligence from detainees in the custody of foreign countries or solicit the detention of a person by a foreign country.

The guidance provides that officers cannot proceed with any of these actions if they “know or believe” that torture will take place.  However, there is no such prohibition where the officer knows there is a “serious risk of torture”.

In these cases, the guidance suggests that the officer can proceed provided the risks can be mitigated through “caveats or assurances” or if Ministers have been consulted.

In the formal “letter before action” from the Commission, John Wadham, the Commission's Group Director, Legal, argues that the guidance incorrectly suggests that these principles are consistent with UK domestic law and international law obligations, including the UN Convention Against Torture.

The letter details what steps the government can take to bring the guidance into line with the law, including prohibiting an officer from proceeding where there is a serious or real risk of torture, and making the guidance more explicit to indicate factors that will be taken into account when a situation is referred to a Minister for a decision.

The Commission has also separately written to Sir Peter Gibson, setting out some of the issues it believes are important for the inquiry to address if it is to be an effective and transparent investigation.

John Wadham, Group Director of Legal for the Equality and Human Rights Commission, said:

“The government has recognised that it needs to break with the past and begin a new era; one in which intelligence gathering is not contaminated by torture.

“One positive effect of this new transparency is that the Commission has been able to consider the guidance and advise on its legality.  The government now has the opportunity to bring its guidance within the law so that the intelligence service itself and its individual officers do not unwittingly leave themselves open to costly and time consuming court action.”

For more press information contact the Commission’s media office on 020 3117 0255, out of hours 07767 272 818.

For general enquiries please contact the Commission’s national helpline: England 0845 604 6610, Scotland 0845 604 5510 or Wales 0845 604 8810.

Notes to Editors

The Commission is a statutory body established under the Equality Act 2006, which took over the responsibilities of Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission.  It is the independent advocate for equality and human rights in Britain.  It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights. 

The Commission enforces equality legislation on age, disability, gender, race, religion or belief, sexual orientation or transgender status, and encourages compliance with the Human Rights Act.  It also gives advice and guidance to businesses, the voluntary and public sectors, and to individuals.