PARLIAMENTARY DEBATE
Use of Torture Overseas - 20 May 2019 (Commons/Commons Chamber)

(Urgent Question): To ask the Secretary of State for Defence if she will make a statement on the Ministry of Defence’s policy on co-operating with the use of torture overseas.

The UK Government stand firmly against torture and do not participate in, solicit, encourage or condone the use of torture or cruel, inhumane or degrading treatment or punishment for any purpose. Our policy and activities in this area are in accordance with domestic and international law. The Ministry of Defence’s policy is aligned with the Government’s policy on sharing and receiving intelligence, and the Investigatory Powers Commissioner has been satisfied with our activities and has not identified issues of concern. However, the Prime Minister has asked the commissioner to review the Government’s consolidated guidance and submit proposals on how it could be improved. Once it has done so and the Government have had the chance to consider them—I anticipate that this will be a matter of weeks—the MOD will review its internal guidance as necessary in the light of any updated guidance that is published.

I thank the Secretary of State for that answer. Our most senior living soldier, Field Marshal Lord Guthrie, said 10 years ago:

“Torture is illegal. It is a crime in both peace and war that no exceptional circumstances can permit…We need to distinguish ourselves from our enemies. We must not, in the false name of moral equivalence, degrade ourselves to their level.”

He was right. The prohibition of torture is one of our few absolute incontrovertible rights. There can never be a reason or justification for torture; what is more, it does not work. It leads to bad intelligence and bad decisions. The decision to undertake the Iraq war, which led to hundreds of thousands of deaths, the destruction of the stability of the region and the destruction of the reputation of the west, was based on so-called evidence obtained on the basis of torture.

We cannot ignore the morality or the law. Paragraph 15.9 of the Ministry of Defence’s policy document states that information sharing should not proceed

“unless ministers agree that the potential benefits justify accepting the risk and the legal consequences that may follow”.

The fundamental problem with paragraph 15.9 is that it presumes that Ministers can overrule the law, even international law, including that on absolute rights such as the prohibition of torture: they cannot, they must not, and I hope that my right hon. Friend will ensure that they do not.

Given the Ministry of Defence’s claim that the Investigatory Powers Commissioner’s Office, the investigatory powers oversight body, approves of this, will she publish the documents showing that? It seems to me that the IPCO might have approved the overall approach but not the precise policy document that I refer to, which I understand was published after the consultation. Will she ensure that that document, which appears to give Ministers the right to overrule the law, is published along with any commentary on it?

I thank my right hon. Friend for applying for this urgent question. It is a critical issue. I agree 100% with what he said, and it is worth reminding ourselves that these laws and norms protect not just the enemy but our own armed forces. We cannot overrule the law, nor can Ministers be advised to overrule or disregard the law.

As I said, we have an opportunity to review the matter. I want to wait until the commissioner’s advice has been received. I understand that will take only a few weeks, so I will update the House as we review our guidance.

I understand that following a freedom of information request one of the policy iterations has been placed in the public domain. The latest iteration, from 2018, introduces not any substantial changes but a minor change at the request of the IPCO. These matters should receive the full light of day and full transparency. If my right hon. Friend will bear with me, once I receive the advice I will of course update the House on these important issues.

Today’s revelations that the MOD has discreetly rewritten Government policy on torture are extremely concerning. Torture is not only morally reprehensible but prohibited under international law in the universal declaration of human rights, the international covenant on civil and political rights, and the convention against torture.

There can be no justification whatsoever for torture. None the less, today’s reports suggest that, according to the Ministry of Defence, torture is acceptable if, and I quote from the policy document,

“ministers agree that the potential benefits justify accepting the risk and the legal consequences that may follow”.

Will the Secretary of State confirm what the Government consider those “potential benefits” to be?

In response to the reports, the MOD has denied any wrongdoing, maintaining that the

“policy and activities in this area comply with the Cabinet Office’s consolidated guidance”

on torture.

However, that guidance clearly sets out that

“in no circumstance will UK personnel ever take action amounting to torture”.

It further maintains that where the Government cannot mitigate the

“serious risk of torture at the hands of a third party”,

the

“presumption would be that we will not proceed”.

Will the Secretary of State therefore clarify how her Department has come to its conclusion? What legal advice has it received? Will she now publish this advice, if any?

We understand that the policy came into effect in November 2018. How many times since then has a Minister decided to authorise the transmission of intelligence that may have led to torture? No Minister should authorise any action where there is a serious risk of it leading to torture. Will the Secretary of State therefore now do the right thing and commit to scrapping the policy immediately, so as to ensure that basic human rights and international law are universally respected and upheld?

I can give the hon. Lady the assurances that she wants. It is not our policy to condone torture or to facilitate it—quite the reverse, as I set out earlier. No Ministers have been involved in decisions that would have led to that, and it is clear that that is not our intention. Again, I can check that, but that is the assurance that I have received from the Department. I can understand the concerns that have been expressed across the House. People will appreciate that I understand well why such laws and norms are in place. As I said, they are for everyone’s benefit, not just our enemies’.

I undertake to look at the guidance and review it, but it is prudent to wait for the commissioner’s feedback. If it was going to take a long time to arrive, I would take a different view, but it is imminent—a few weeks’ time.

Surely my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) has done the House a big service in securing this urgent question because it touches on the reputation of our country.

You, Mr Speaker, will remember that on 2 July 2018 my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) led Members from both sides of the House in asking for a judicial inquiry into British complicity in torture, and the Government promised to update the House within 60 days. Now, it is day 323 and, in spite of that promise the House has not been given the explanation it requires.

Last Friday, the United Nations Committee Against Torture called on the UK

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

Given Britain’s leadership at the United Nations, it is a very sad day when the UN has felt it necessary to pass such a motion. I urge the Government to deliver on their promise to the House and come back on the issue of a judicial inquiry. As I say, it was promised within 60 days and we are now on day 323.

My right hon. Friend raises some important points. Although I completely agree with what has been said by everyone who has spoken so far, it is right to point out that we hold our armed forces, and the agencies that work with them, to high standards —we hold them all to high standards. We understand why that is important, we understand why people must be compliant and we understand why there must be accountability and transparency in these policies not just on matters of intelligence but in targeting them to reduce the number of civilian casualties.

Part of the reason we are grappling with the issue of “lawfare” is that we want to uphold the primacy of international humanitarian law. These things are incredibly important to us.

I have undertaken to review this policy, and I will look at things more widely and in the round, but I reassure the House that what I do not want to come from the scrutiny of MOD policy, which is quite right, is any suggestion that our armed forces are somehow not upholding international humanitarian law.

I know that Members on both sides of the House will know how much that is embedded in our armed forces’ education and training, and how it is given with rigour in everything they do before deployment. Where there is wrongdoing, they are held to account, and it is quite right that we should hold them and officials to account for wrongdoing where it happens. This is not a regular occurrence, and it is not something that occurs within our armed forces—they operate to the highest standards.

A tangled web has been woven that needs to be unpicked with the greatest transparency. Why did it fall to the non-governmental organisation Reprieve to get this information into the public domain? Why did no one in Government think it appropriate to pass it to the Investigatory Powers Commissioner?

The Secretary of State says she will review the policy, but will she not go one step further and rescind it? Will she clarify the MOD statement, which she repeated at the Dispatch Box today, that the Investigatory Powers Commissioner is “entirely satisfied” with the Department’s activities and standards in this area? Given that the commissioner had not seen the document until last month, how on earth can he be completely satisfied with something he knew nothing about?

Will the Secretary of State take this opportunity to confirm whether she believes that, as per the guidance we are discussing, Ministers can authorise UK action where there is a serious risk it will contribute to torture? In the authorship of this policy, was the Attorney General consulted at any time? It is quite clear that the House will not accept any deviation from the strictest observance of domestic and international law.

Finally, with last month seeing a UK Defence Secretary sacked for leaking from the National Security Council, this month we find out that the MOD is potentially freelancing on torture and potentially breaking the law. Many of us are left asking, what on earth is going on in the Secretary of State’s Department?

I can understand the concerns that have been expressed about a policy, but it cannot be drawn from that that action is being taken or incidents have happened. What I can say to the hon. Gentleman is that this policy is not new, nor has it been secret. The Prime Minister asked the Investigatory Powers Commissioner to review the guidance, and the commissioner has seen the MOD’s policy. What I said is that he has no issue and believes the MOD’s current policy is consistent with that guidance.

I repeat that no Minister could break the law or be advised to break the law by an official—that could not happen. I hope that reassures the hon. Gentleman on that point. The Attorney General is routinely and regularly involved in forming policies of this nature, and is also a member of the National Security Council.

I endorse what my right hon. Friend has said: the idea that this is some extraordinary leak displaying some novel policy is wholly erroneous. If anybody wishes to read the Intelligence and Security Committee’s report on detention and rendition, they will find a lengthy section on current issues that deals with this precise matter, setting out the consolidated guidance in virtually identical form to that which exists and, I understand, is currently being used in the MOD.

That said, I welcome the Secretary of State’s review, and I point out that in the detention and rendition report my Committee made it clear that this was one of those exceptional areas dealing with serious risk. You can never authorise or sanction the use of torture—it is wholly contrary to international law—but we pointed out that where there is a serious risk there was a need for some form of process by which an evaluation could be made. It was noteworthy that there appeared to be differences, at the time we reported, between the Home Office, the Foreign Office and the MOD on what criteria might be applied by individual Secretaries of State. May I urge my right hon. Friend, first, enthusiastically to rebut those who suggest that this is an extraordinary revelation and, secondly, to move to respond to what the Committee suggested in its report?

I thank my right hon. and learned Friend for that contribution, and I completely agree with what he says. In addition to the review of the policy, I will certainly give the matters he raises my urgent attention.

This matter might not be news to the right hon. and learned Member for Beaconsfield (Mr Grieve) and his Committee, but it does appear to have been news to IPCO, which had to be informed about it by freedom of information requests through Reprieve. Perhaps the Secretary of State will explain that. Does it not show that the lessons from the whole so-called “war on terror” have not been learned? She gave a long answer to the right hon. Member for Sutton Coldfield (Mr Mitchell), but she did not answer his actual question: when are we going to have the announcement on the judge-led inquiry?

First, the change to the policy introduced in 2018 was an amendment at the request of the IPCO. As I say, it is only a short number of weeks before we will get the review back from the Commissioner, and the Government will be able to look at the recommendations made. I will look at this in the round, as Members would expect of a new Secretary of State coming into the Department, and I will update the House. I fully hear what all Members in all parts of the House are saying. I understand, and I hope the House has confidence in the fact that I understand, how critically important these issues are, for, as I say again, the safety of our own armed forces, as well as other people, and I will give this my urgent attention.

If anyone ever tries to tempt the Secretary of State with the maxim that the end justifies the means, will she bear in mind the wise words of Sir Robert Thompson? He was probably the leading counter-insurgency expert of the 1960s and wrote about torture and other extrajudicial means:

“Not only is this morally wrong, but, over a period, it will create more practical difficulties for a government than it solves. A government which does not act in accordance with the law forfeits the right to be called a government and cannot then expect its people to obey the law.”

I quite agree with my right hon. Friend: it is absolutely fundamental to everything that we stand for and everything that our armed forces represent that we uphold the law, that we uphold international humanitarian law and that we abide by the rules. I could not agree with him more.

I completely agree with what the hon. Gentleman has said. The Royal Navy played a huge role in the ending of the slave trade; our nation has a huge heritage in that respect. I should add to what has been said that this matter shows why we have also to tackle, in conjunction with this issue, which I will deal with, the wider issue of lawfare—that basket of issues that is corrupting our operational effectiveness and putting huge pressure on our armed forces in the field to take decisions that are the wrong thing to do. Let me give just one example from, I believe, Afghanistan. A member of our armed forces was sued for detaining a prisoner for longer than the prescribed amount of time in order to keep that prisoner safe from being put into a prison where they would have been tortured. That was the right decision to take. Currently, members of our armed forces are pursued for taking such decisions and upholding international humanitarian law, so we have to get that right, too. Our armed forces resist the immense pressures that are put on them when they are making those decisions in theatre, but we have to get that right too, and that is also receiving my urgent attention.

It is sickening that we have this guidance on torture, but I am reassured by the Secretary of State’s words this afternoon. Will she confirm that we will not use or act on intelligence that is gathered from third-party torture?

I can give my hon. Friend that assurance. We do not condone torture, we will not be implicit in it and we are fully aware of our obligations in terms of third parties.

To follow on from what the right hon. Member for Sutton Coldfield (Mr Mitchell) said about the United Nations criticism, was the review prompted by that criticism, or by something else? Lots of my constituents are concerned about this issue and the direction in which it is going. Does the Secretary of State have a date for when she will come forward and tell us what the proposals are?

Just to clarify, it was the Prime Minister who asked the commissioner to review the Government’s guidance, which our MOD guidance follows—it is absolutely in line with that. I am told that it will be a couple of weeks before the commissioner is ready to report. When they do report, the Government will review it and I will review the MOD’s policy.

I invite the Secretary of State to respond specifically to the question asked by the right hon. Member for Sutton Coldfield (Mr Mitchell) about the Government’s response to the call for a judicial review. We cannot blame her for the failures of her predecessor, but we heard that the promise of a response within 60 days was made about 320 days ago. Will she make it clear that she will now put that right and that the House will hear her view on that and let us know when we should expect to hear it?

The hon. Gentleman will understand that I am a couple of weeks into this role. I am looking at this situation, but I will not make pronouncements at the Dispatch Box until I am apprised of all the issues. I do not think that hon. Members would expect me to do anything else. I can assure the House that I am looking at the issue and at policy in relation to that. From what I have seen and from the inquiries that I have made in the Department so far, I think that the House would be reassured about our conduct. I think that the decisions that have been taken in the Department have been correct and that hon. Members would be reassured by that fact. But I fully appreciate that the House wants to have an update as swiftly as possible and I undertake to do that.

Will the Secretary of State outline her understanding of the definition of torture, underline the position in a civilised society and, coming from a position of clean hands, confirm that the end does not and will not always justify the means?

I hope that I have given the House every reassurance. There is a legal definition of torture. At the beginning of my statement, I outlined all the descriptions and forms that that might take. It is never justified. It is also, as we know, not a reliable way of getting information or of being able to act on that information. We must not do it. Ministers should not do it, or allow it to be done. It is a breach of the law and no official could advise a Minister to take that course of action.

The Secretary of State seeks to reassure the House, but Members may be aware that the Investigatory Powers Commissioner’s Office consultation into the Cabinet Office consolidated guidance on intelligence sharing relating to detainees closed on 28 November 2018, yet the MOD policy was simply dated November 2018. Therefore, was it introduced on 28, 29, or 30 November to avoid being included in the IPCO consultation?

My understanding is that it followed that updated advice and the changes made to the 2018 document were at the request of the IPCO. That is my understanding of the situation, but that should not be confused with the piece of work that has been ongoing with the commissioner and on which a report back is due, as I have said, in a few weeks.

As we heard from the right hon. and learned Member for Beaconsfield (Mr Grieve), in the course of its inquiry, the Intelligence and Security Committee asked a number of Secretaries of State whether they believed the policy allowed them to authorise action where there was a serious risk of torture and each gave significantly different answers. Can the Secretary of State explain how she will be able to ensure that there is a consistent approach to this from all Secretaries of State?

The confidence that the right hon. Gentleman and other Members can get is that the processes in the Department have to be right. Clearly, different people coming into office and holding ministerial office will have different views on a raft of subjects. They may have different experiences that they bring to bear in making a decision, but the key thing that should give us confidence is that no member of our armed forces and no civil servant working in defence could give advice that would get a Minister to decide on a course of action that could lead to an individual being knowingly tortured. That, I think, is very clear. That has been my experience of the calibre of individuals working in the Department, both in the past few weeks and also in my time as Minister of the Armed Forces. Those are the people we have to trust. A duty on Ministers, especially the Secretary of State, is to reinforce that in the Department through policies, transparency and clarity on what it is that we are trying to achieve and the law that we are trying to uphold.