Government Faces Legal Challenge Over Torture Authorisations

September 6, 2018

The Government is facing a legal challenge from Reprieve over its use of a secretive law that can be deployed to authorise the involvement of British intelligence officers in torture and cruel, inhuman and degrading treatment.

Section 7 of the Intelligence Services Act 1994 allows ministers to permit UK personnel to commit criminal acts abroad. In June two reports from Parliament’s Intelligence and Security Committee (ISC) revealed that current and former cabinet ministers, including Theresa May, Philip Hammond and Boris Johnson, believe they can authorise operations even when there is a serious risk of complicity in torture or mistreatment.

The ISC reports also detailed hundreds of cases of UK involvement in torture and mistreatment and uncovered that both MI6 and GCHQ routinely apply for such authorisations when they become aware that their staff could become involved in such acts.

Reprieve has written a formal legal letter to the Government – the necessary first step in any legal proceedings – seeking clarity on the precise scope of section 7 authorisations, on the basis that any authorisation resulting in the risk of UK involvement in torture and mistreatment is in breach of the absolute prohibition on torture contained in Article 3 of the European Convention on Human Rights.

This comes shortly after the Prime Minister issued an unprecedented apology to Abdul Hakim Belhaj and Fatima Boudchar in May for the Government’s role in their kidnap, rendition and torture when Fatima was heavily pregnant in 2004. In recent months, there have been increasing calls from senior Parliamentarians – including Ken Clarke, David Davis, Andrew Mitchell, Lord Ashdown, Shami Chakrabarti and Emily Thornberry – for a full, independent, judge-led inquiry into UK involvement in torture.

The Government promised to announce by late August whether it would hold such an inquiry, but has since missed that deadline and indicated that a final decision is currently sitting with the Prime Minister.

Commenting, Maya Foa, Director of Reprieve, said:

“In recent months the Prime Minister has had to apologise for the UK government’s role in the ‘appalling’ kidnap and rendition of a pregnant woman and her husband, tried and failed to get away with a ‘light-touch’ review of the torture policy, faced a damning report that revealed hundreds of cases of British complicity in mistreatment, and heard cross-party calls for a full judge-led inquiry into UK involvement in torture grow ever louder.

“Despite all this, there still seems to be a failure at the top of Government to learn the lessons from past mistakes. The public now need urgent reassurance that ministers cannot legally authorise involvement in torture or mistreatment in any circumstances.”

Rosa Curling, solicitor at law firm Leigh Day, who are acting for Reprieve, said: 

“The Foreign Secretary, the Secret Intelligence Service and GCHQ seem to think they can authorise conduct even if there is a serious risk of torture and/or cruel, inhumane or degrading treatment. These section 7 authorisations are being used like modern day torture warrants.  Our client considers this to be immoral and unlawful.

“The prohibition on torture and cruel, inhumane and degrading treatment is clear and absolute, whether under the UK common law, the European Convention on Human Rights or public international law. Our client has written to the government seeking confirmation that the Secretary of State will refuse to authorise any conduct where he knows or believes torture and/or cruel, inhumane or degrading treatment will or may take place or there is a serious risk of it.”

 

Notes to Editors:

1. The relevant sections of the Intelligence and Security Committee’s reports can be found at paragraphs 169 and 179-181 of the Detainee Mistreatment and Rendition: Current Issues report.