Torture Overseas: Ministry of Defence Policy

Baroness Smith of Newnham Excerpts

Monday 20th May 2019 Lords Chamber

[Earl Howe]

My Lords, I am grateful to the noble Baroness and I align myself completely with the sentiment that she expressed at the beginning of her question. Central government consolidated guidance sets out the principles which govern the interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees. That guidance must be adhered to by officers of the UK’s security and intelligence agencies, members of the UK Armed Forces and employees of the Ministry of Defence. An internal policy document within the Ministry of Defence was prepared to, as it were, make the consolidated guidance more accessible and practical for those implementing it in the field. The MoD concedes that, as currently worded, there is an ambiguity in the internal document. I should stress that this ambiguity has not led to any problem or difficulty in the actions taken by the department, Ministers or members of the Armed Forces. It has been identified that the internal policy document could give the incorrect impression that Ministers could in all circumstances simply choose to accept legal consequences and act illegally. That is absolutely not the case. Ministers may not proceed when it would be unlawful, as opposed to when they would simply be assuming legal risk, which applies to any ministerial decision. I reassure the noble Baroness that, to my knowledge and that of my officials, Ministers have in no circumstances taken a decision which was unlawful in this context.

[Baroness Smith of Newnham (LD)]

My Lords, I too am grateful to the Minister for repeating the Answer to the Urgent Question and for his answer to the noble Baroness, Lady Chakrabarti. Today, the Times suggested that the freedom of information request said that the MoD effectively created,

“a provision for ministers to approve passing information to allies even if there is a risk of torture, if they judge that the potential benefits justify it”.

I accept that no torture has been undertaken and that nothing so far has been illegal, but does the Minister not agree that, in line with Kantian imperatives, we should not treat people as means; we should treat them as ends in themselves? Surely a potential benefit cannot outweigh the human rights of individuals.

[Earl Howe]

I entirely take the noble Baroness’s point. The consolidated guidance is clear that, where Ministers or officials know or believe that a particular action will lead to torture being administered, that action may not be proceeded with. The difficulty comes where the state of knowledge may not be sufficiently high to act as a legal prohibition. In that event, were a Minister to be called upon to take a decision whether to release intelligence, that decision would be informed by detailed legal and policy advice. It is not possible to make generalisations in this context on what that advice might comprise because it would be highly fact-specific to the individual case. However, I emphasise that Ministers may never act unlawfully and officials must never advise Ministers to act unlawfully, and I am confident in saying that Ministers have not acted unlawfully.