After the 9/11 attacks on the United States and the UK intelligence agencies’ embroilment in scandals relating to the “war on terror”, the government published a policy on torture and intelligence, then known as the “consolidated guidance”. The aim was to show the standards to which the UK holds itself and its intelligence agencies.
The current rules, “the principles”, which replaced the consolidated guidance, were drawn up after the 2018 apology for Britain’s role in the rendition of a Libyan dissident, Abdel Hakim Belhaj, and his wife, as well as two damning reports published by the parliamentary intelligence and security committee (ISC) in the same year, which found that MI5 and MI6 were involved in hundreds of torture cases and scores of rendition cases after 9/11.
Like the consolidated guidance that preceded it, the principles, which came into effect in 2020, state that the UK government “does not participate in, solicit, encourage or condone unlawful killing, the use of torture or cruel, inhuman or degrading treatment, or extraordinary rendition”.
While that might seem unequivocal, the rest of the document muddies the waters – deliberately so, according to critics. For example, it includes a presumption “not to proceed” if there are grounds for believing there is a real risk of torture, unlawful killing or extraordinary rendition. It might appear to be strong wording but – by their very nature – presumptions can be rebutted.
Additionally, the latest report by intelligence watchdog, the Investigatory Powers Commissioner’s Office (IPCO), said that agencies (those overseen by IPCO include MI5 and MI6) have been failing to remind ministers of the presumption in cases where there was a “real risk of torture”.
IPCO does not say whether ministers granted authorisation in such cases, leaving the public guessing as to whether permission was granted for so-called “torture tipoffs”, as allegedly happened in the case of Jagtar Singh Johal. Lawyers for the British Sikh activist and blogger, who faces a possible death sentence in India, are taking the UK government to court, because they claim a tipoff was made in the knowledge that torture might follow his 2017 arrest. In an ideal world, even if the presumption not to proceed was not flagged by agencies where there was a real risk of torture, ministers would be aware of the presumption and act accordingly.
In its filed defence against the claim by Johal’s lawyers, the Foreign Office refused to confirm or deny any transfer of information.
However, in a 2018 report, having questioned two home secretaries and two foreign secretaries all while in office as to whether they would authorise cases where there was a serious risk of torture, the ISC concluded that their “contrasting views clearly illustrate the dangerous ambiguities in the guidance – individual ministers have entirely different understandings of what they can and cannot, and would and would not, authorise”. While that was when the consolidated guidance was in place, it is doubtful the outcome would be different under the principles.
The legal action group Reprieve and the all-party parliamentary group on extraordinary rendition say this is an inevitable consequence when the law is unequivocal that torture is prohibited but government policy contains room for manoeuvre. If the UK was true to its word on torture, the policy’s requirement to consult ministers would be obsolete, as it would never be allowed.
