Torture and Intelligence Cooperation

This is not the place for a definitive treatise on the complex subject of UK intelligence cooperation with regimes that may practice torture.  But because the subject is in the news, I link here to some relevant sources.

Not just a UK-US issue

Recent suggestions of possible change to US policy make topical a¬†subject that already crops up routinely and in many other contexts.¬† Overseas intelligence work depends heavily on cooperation with foreign governments or “liaison partners”, not all of which have an unblemished reputation where torture is concerned.¬† So whatever the US may or may not decide over the coming weeks, great care¬†will continue to have¬†to be exercised to ensure that UK security and intelligence agencies dos not participate in, or encourage, torture or inhuman and degrading treatment practised by foreign governments.

The Gibson report

In July 2010 the then Prime Minister, David Cameron, announced a “short and sharp”¬†judge-led independent inquiry into allegations of UK involvement in the rendition and torture of suspects in the post-9/11 “war against terror”.¬†¬†The Detainee Inquiry was¬†chaired by Sir Peter Gibson, a former Lord Justice of Appeal.¬† After disputes concerning the hearing of evidence in secret, the work of the Inquiry was boycotted by NGOs.¬† Further investigation was then stalled pending police inquiries into alleged UK complicity in the return to Libya of two of President Gaddafi’s opponents and their families.

Some time after its completion, the interim report of the Detainee Inquiry was published in December 2013.  The interim report found that UK intelligence officers had been aware of detainees being subject to inappropriate interrogation techniques and mistreatment or alleged mistreatment by liaison partners.  It commented critically on the 2007 report into rendition of Intelligence and Security Committee of Parliament, and identified 27 questions that the Inquiry would have wished to pursue in its second stage.

That second stage has not been completed.¬† The responsibility for completing the Detainee Inquiry was handed not to a judge,¬†but to the Intelligence and Security Committee of Parliament.¬†¬†This was controversial, though the¬†ability of a properly-supported legislative committee to perform complex investigations of this kind was¬†to some extent demonstrated¬†when the US Senate Intelligence Committee¬†published in December 2014 its own lengthy report (divided as it was on party lines) into the CIA’s use of unlawful¬†detention and interrogation after 9/11.

The Consolidated Guidance

In an attempt to provide the UK’s Security and Intelligence Agencies and¬†military with some much-needed certainty, the principles which govern the interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees were set out in the Consolidated Guidance of¬†July 2010.

A reading of this document demonstrates the difficulties in drawing hard and fast lines in an area where judgements tend to be highly fact-dependent.

Some alleged deficiencies in the Consolidated Guidance have been pointed out by the NGO Reprieve.

Oversight by the Intelligence Services Commissioner

In November 2014 the Prime Minister directed the Intelligence Services Commissioner, the retired Lord Justice of Appeal Sir Mark Waller, to review the operation of the Consolidated Guidance.  His largely favourable comments are at pp 40-45 of his September 2016 report.

In a supplementary report, also of September 2016, Sir Mark Waller identified some areas where the Consolidated Guidance is in need of improvement (chapter 19).

Anyone doubting the robustness or the independence of the Intelligence Services Commissioner is invited to read Sir Mark’s unrelated comments concerning MI6 in chapter 20 of this supplementary report.

Sir John Goldring, the current Intelligence Services Commissioner, is currently responsible for review of the operation of the Consolidated Guidance under the Prime Ministerial direction of 2014.

Investigatory Powers Act 2016

The functions of the Intelligence Services Commissioner are subsumed by the Investigatory Powers Act 2016 into those of the Investigatory Powers Commissioner.  When appointed, the Investigatory Powers Commissioner (like his or her predecessor) will have the power to review the Consolidated Guidance only if directed to do so by the Prime Minister under section 230 of the Act.

Some would have preferred this power to exercised without the need for prior direction.  But direction was required also under the previous law (RIPA 2000 s59A); and it would be very surprising if no such direction were made under the Investigatory Powers Act, given the sensitivity and importance of the subject matter.  Sir Mark Waller expressed the hope at (p.45 of his September 2016 report) that a direction will be made, adding that the Agencies would also like to see continued review.

Data sharing

Moving away from the subject of torture and detention, and on to data sharing more generally, the Investigatory Powers Act makes provision for the circumstances in which data obtained by the UK authorities may be shared with liaison partners.  An example is section 171(9), which makes reference to safeguards equivalent to those in the UK being in place before communications data obtained under a bulk acquisition warrant are handed over or given to an overseas authority.  It adds, however, that the Secretary of State is obliged to insist on such safeguards only to the extent (if any) as is considered appropriate.

Though recently agreed by Parliament, that formulation has been criticised in some quarters for the  broad discretion that it entrusts to the Secretary of State.  The Government insists on the need to retain a high degree of flexibility where data-sharing is concerned, in the interests of national security.  The new beefed-up Investigatory Powers Commission will undoubtedly wish to scrutinise very carefully the arrangements that are put in place for the sharing of data with overseas authorities, as it is required to do under s229 of the Act.

[amended 27 January to insert reference to Sir John Goldring]