Detainee Issues

Lord Collins of Highbury Excerpts

Thursday 18th July 2019 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I thank the Minister for repeating the Statement. It is extremely disappointing that the Government failed to implement the Intelligence and Security Committee’s recommendations to commission an independent and judge-led inquiry, especially in the light of the comments by the UN Committee Against Torture, which has called on the UK to,

“establish without further delay an inquiry on alleged acts of torture and other ill-treatment of detainees held overseas … by, at the instigation of or with the consent or acquiescence of British officials”.

We must remember that at the heart of the historical allegations of torture and rendition lie the stories of dozens of victims of this abuse, many of them innocent of any crime.

In the other place, David Lidington said that the Government did listen to the ISC and that the new principles reflected in many detailed aspects the precise recommendations of the committee in its two reports of 2018. So, if the Government are so confident that all the lessons of the past have been learned and that the abuses of the past cannot be repeated, what exactly do they have to fear by allowing a judge to look into this issue to examine all the evidence, interview all the witnesses and look at the new procedures and rules so that he or she can tell the Government whether they are right?

I turn to the new guidelines published today. I welcome the fact that they have been published, but I am concerned that the input of civil society might not have been fully considered. On this point, David Lidington said that Sir Adrian, in the course of his review, took great care to consult civil society. He convened meetings where representatives of civil society could make their representations to him and put forward their ideas. Is the Minister willing to say this afternoon exactly what Sir Adrian chose not to reflect from particular civil society organisations in his final report and recommendations? This process needs full transparency and open examination of all the issues, and that is why it is so important to have a full inquiry.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for repeating the Statement. However welcome it is that the Government have accepted the Investigatory Powers Commissioner’s recommendations to replace the current consolidated guidance with new principles, the refusal to re-establish a judge-led inquiry, which was promised nearly a decade ago, is deplorable. The Intelligence and Security Committee, under the chairmanship of Dominic Grieve, did its best in the reports it produced a year ago, but the Prime Minister denied it access to relevant witnesses such that it was unable to conduct an authoritative inquiry and produce a report, so it had to stop.

However, the ISC estimated, on the basis of the research it was able to do, that UK personnel had been involved in 2,000 to 3,000 detainee interviews in the period 2002 to 2004. It found 166 incidents recorded, and there were huge gaps in the records, where UK personnel either witnessed detainee mistreatment, were told of it by the detainees themselves or were told of it by foreign agencies. In addition, the ISC found 198 recorded cases where UK personnel received intelligence that they knew or should have suspected was tainted as it resulted from detainee mistreatment. That makes getting on for 400 cases, some of which would surely have involved torture or illegal behaviour by British officials. Since the ISC found a lot of gaps in those records, it could be many more. Then there is complicity in illegal rendition, secret imprisonment and disappearance. It is not acceptable to try to bury this sorry, disgraceful history. There needs to be transparency and accountability in establishing the truth, not a continued cover-up. Anything less may well breach the requirements of the European Convention on Human Rights.

Like this Statement, today’s Written Statement from the Prime Minister on the new principles asserts that the Government’s policy is not to,

“participate in, solicit, encourage or condone the use of torture or cruel, inhuman or degrading treatment”.

It would be extraordinary if it were otherwise. However, there still seems to be wriggle room for Ministers to authorise co-operation with torture and inhuman treatment, in breach of international law. Can the Minister assure us that the Ministry of Defence document revealed in May—it made clear that Ministers permitted themselves to share intelligence with allies even if there was a serious risk of torture—is now redundant and has been withdrawn, and that the principles would ban both Ministers and personnel from taking such a real risk?

On that note, can the Minister assure us that the extradited Hashem Abedi, the brother of the perpetrator of the appalling Manchester Arena bombing, was not mistreated or tortured in Libya?

The suspicion must exist that this brushing under the carpet is to please President Trump at a time when the likely next Prime Minister is keen to be chummy with him. That would be morally shameful. The ISC reported MI6 as saying that, post 9/11, there was,

“an unconditional reflex to support the United States, which … came from the political centre”—

namely, No. 10. The ISC concluded that,

“the UK saw itself as the poor relation to the US, and was distinctly uncomfortable at the prospect of complaining to its host”.

I am afraid that, once again, this sounds all too familiar.

In 2010, the coalition Government resolved to establish the truth through the powers of a judge. It is shocking that this Conservative-only Government have abandoned that attempt.

Brexit: European Arrest Warrant (European Union Committee)

Lord Collins of Highbury Excerpts

Thursday 8th February 2018 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I too thank the noble Lord, Lord Jay, for his excellent introduction to this debate and all noble Lords on the committee for the excellent report. This has been a great debate. It has shown a great deal of consensus across the Chamber that the European arrest warrant has brought significant benefits to the United Kingdom. Each year around 1,000 individuals are surrendered to other EU member states under the EAW. According to the report, on average the UK issues more than 200 European arrest warrants seeking the extradition of individuals to this country.

In the debate we have heard about the fundamental contradiction of the Government’s position. They have the stated priority that we remain part of the arrangement; however, in their White Paper on the UK’s exit and the new partnership with the EU, they have also confirmed that they plan to bring an end to the jurisdiction of the CJEU in the UK, with case law developed post Brexit having no formal status in the UK.

As the report lays out, a lack of oversight and adjudication by the EU supranational institutions represents a practical barrier to co-operation between the United Kingdom and the EU 27 on criminal justice, which, as we heard in the debate, is reliant on the principle of mutual recognition of judicial decisions between member states. Fundamentally, restoration of the UK’s full judicial sovereignty will make it very difficult, as my noble friend highlighted, to create a level playing field in criminal justice co-operation. In relation to areas of potential divergence, such as data protection, these complexities are exacerbated by the Government’s refusal to incorporate into domestic legislation the fundamental charter.

A no-deal Brexit will make the challenge of continued co-operation that much harder. The default outcome would be to revert to the Council of Europe Convention on Extradition 1957 as the legal basis for extradition between the UK and the remaining EU member states. The noble and learned Lord reminded us of its history and the problems that that could bring.

On the report, noble Lords have referred to the fact that the witnesses giving evidence to the committee were clear that this was not an adequate substitute for the EAW and represented a cliff edge. Even with the amendments to the Extradition Act 2003 the result would be a significantly slower extradition process which represented a political rather than judicial approach to extradition and would have rule of law as well as security implications.

As the noble Lord, Lord Hannay, rightly pointed out, in a Protocol 36 decision in 2014 the UK Government had to decide whether to accept the jurisdiction of the CJEU in return for the continued use of tools such as the EAW. Now as then, the safety of the people of the United Kingdom should be the Government’s overriding consideration. The report explores the possibility for a bespoke dispute resolution mechanism in the area of criminal justice co-operation. Evidence submitted suggested that for the enforcement of criminal judgments and the EAW this would have to be a court. Only a court can appropriately review decisions affecting the liberty of an individual, as my noble friend Lady Kennedy highlighted. A political resolution mechanism or arbitration will simply not be sufficient.

The noble Lord, Lord Jay, highlighted one possible template referred to by the committee: the EFTA court, with jurisdiction over states which are party to the EEA agreement. Although EEA agreement states exist outside the scope of the jurisdiction of the CJEU, the EFTA court guarantees sufficient homogeneity between the two systems to avoid significant disputes. But as my noble friend Lady Kennedy again pointed out, the EFTA system took many years to negotiate. It has never been applied to justice or home affairs issues, only internal market concerns, and applies to two European states moving towards EU membership that also participate in the Schengen area.

The report entitled Brexit: Future UK-EU Security and Police Cooperation concluded that,

“the most promising avenue for the Government to pursue may be to follow the precedent set by Norway and Iceland and seek a bilateral extradition agreement with the EU that mirrors the EAW’s provisions as far as possible”.

This model of harmonisation would require a duty of constant review of CJEU case law and a clear political dispute resolution mechanism. What we have heard throughout the debate is that the failure to co-operate will hamper the UK’s ability to combat crime, including organised crime, people trafficking and terrorism. The Government’s stated prioritisation of the EAW is incompatible with their plans to bring an end to the jurisdiction of the CJEU in the United Kingdom. The UK and the EU will need an agreed international body which effectively acts as a safeguard against unlawful warrant issuance. Only a court can appropriately review decisions affecting the liberty of an individual, and consequently this international body will have to be a court. It is very unlikely that the EU will agree to the jurisdiction of an independent judicial body that is distinct from the CJEU.

A no-deal Brexit will make the challenge of continued co-operation that much harder, and of course reverting to the 1957 Council of Europe convention is no answer either. Unlike the Government’s response, Labour would not only allow for continued jurisdiction of the CJEU to provide for continued co-operation with EU member states on extradition arrangements, it would work with international institutions to increase UK judicial oversight of this process. Doing so would provide the safeguards to balance effective extradition and the protection of basic rights and freedoms.

We come back to the fundamental issue here, which is the security of our people. This system works and the Government have imposed a red line that simply will not work. I know that the Minister is excellent at squaring the circle. In his response to the debate I hope that he will be able to do that, but I fear that he will fail.