Legal threat over torture guidelines

Government guidance on dealing with overseas torture of detainees may breach international law and leave intelligence and military personnel exposed to legal challenge, a human rights watchdog warned today.

The Equality and Human Rights Commission (EHRC) has written to David Cameron and security chiefs threatening legal action unless the wording is amended to comply with the UK's obligations.

It also called for a forthcoming inquiry into allegations of British complicity in torture of terror suspects to be held in public wherever possible and its findings to be made public.

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The Prime Minister announced the inquiry on July 6 after claims that former Guantanamo Bay detainee Binyam Mohamed was tortured with the knowledge of the British security services while held by the CIA in Pakistan.

A number of other former detainees have since brought legal action against the UK Government, claiming they were subjected to similar mistreatment with the knowledge of MI5 or MI6.

Allegations have also been made of UK involvement in the extra-judicial transfer, or rendition, of terror suspects between countries since the 9/11 attacks on the US.

The guidance was drawn up in the wake of the complaints and published alongside the inquiry announcement.

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However, EHRC legal director John Wadham wrote to Mr Cameron and senior Ministers expressing "serious concerns about the lawfulness of the guidance... and to request its amendment".

In separate letters to the heads of MI5 and MI6, Commission chairman Trevor Philips said the advice was "unhelpful" to officers on the ground and could unwittingly leave them "personally liable for aiding and abetting torture".

The watchdog warned Mr Cameron that it intended to exercise its legal right to issue judicial review proceedings "if no satisfactory response" was received by a deadline of 5pm on Thursday.

EHRC welcomed the publication of the guidance, which sets out the steps intelligence officers must take before they interview detainees held by authorities overseas, seek intelligence gained from them or solicit an overseas detention. It says they cannot go ahead if they "know or believe" torture will take place.

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But it allows them to proceed even if they know there is a "serious risk of torture" so long as they have consulted senior colleagues or, ultimately, Ministers.

It gives an assurance that if they stick to the procedures set out in the guidance, they will have "good reason to be confident that they will not risk personal liability in the future".

But the EHRC said that was misleading and could breach international and domestic law, including the United Nations Convention Against Torture.

An outright ban on proceeding in the knowledge of a "serious or real risk of torture" and clearer guidance on the factors to be considered by Ministers making a decision in other cases were among suggested changes.

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Mr Wadham 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."

In a separate letter to Sir Peter Gibson, the retired appeal court judge who will head the inquiry into complicity claims, Mr Wadham said it should look to expose any "systemic problems of policy" and be obliged to make recommendations.