Intelligence and Security Services: Treatment of Detainees

Lord Strathclyde Excerpts

Tuesday 6th July 2010 Lords Chamber

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, I think that now is a convenient moment to take the Statement made by the Prime Minister in another place a few minutes ago on the treatment of detainees. The Statement is as follows:

“Mr Speaker, I am sure that the whole House will wish to join me in paying tribute to the Royal Marine who died on Thursday, the soldier from the Royal Dragoon Guards who died yesterday and the soldier from 1st Battalion the Mercian Regiment who died from wounds sustained in Afghanistan at hospital in Birmingham yesterday. We should constantly remember the services and sacrifices made on our behalf by our Armed Forces and their families.

With permission, I would like to make a Statement on our intelligence services and allegations made about the treatment of detainees. For the past few years, the reputation of our security services has been overshadowed by allegations about their involvement in the treatment of detainees held by other countries. Some of these detainees allege they were mistreated by those countries. Other allegations have also been made about the UK's involvement in the rendition of detainees in the aftermath of 9/11. These allegations are not proven.

But today, we do face a totally unsatisfactory situation. Our services are paralysed by paperwork as they try to defend themselves in lengthy court cases with uncertain rules. Our reputation as a country that believes in human rights, justice, fairness and the rule of law—indeed, for much of what the services exist to protect—risks being tarnished. Public confidence is being eroded, with people doubting the ability of our services to protect us and questioning the rules under which they operate, and terrorists and extremists are able to exploit these allegations for their own propaganda.

Myself, the Deputy Prime Minister, the coalition Government—we all believe it is time to clear this matter up once and for all. So today I want to set out how we will deal with the problems of the past, how we will sort out the future and, crucially, how we can make sure the security services can get on, do their job and keep us safe.

But, first, let us be clear about the work they do. I believe we have the finest intelligence services in the world. In the past, it was the intelligence services that cracked the secrets of Enigma and helped deliver victory in World War II. They recruited Russian spies like Gordievsky and Mitrokin and kept Britain safe in the Cold War. And they helped disrupt the Provisional IRA in the 1980s and 1990s. Today, these tremendous acts of bravery continue. Every day intelligence officers track terrorist threats and disrupt plots. They prevent the world's most dangerous weapons falling into the hands of the world's most dangerous states. And they give our forces in Afghanistan the information they need to take key decisions.

They do this without any public—or often even private—recognition, and despite the massive personal risks to their safety. We should never forget that some officers have died for this country. Their names are not known. Their loved ones must mourn in secret. The service they have given to our country is not publicly recognised. We owe them—and every intelligence officer in our country—an enormous debt of gratitude. And, as Minister for the Intelligence Services, I am determined to do everything possible to help them get on with the job they are trained to do—and we desperately need them to do.

However, to do that, we need to resolve the issues of the past. While there is no evidence that any British officer was directly engaged in torture in the aftermath of 9/11, there are questions over the degree to which British officers were working with foreign security services that were treating detainees in ways they should not have done. About a dozen cases have been brought in court about the actions of UK personnel, including, for example, that since 9/11 they may have witnessed mistreatment such as the use of hoods and shackles.

This has led to accusations that Britain may have been complicit in the mistreatment of detainees. The longer these questions remain unanswered, the bigger the stain on our reputation as a country that believes in freedom, fairness and human rights grows. That is why myself and the Deputy Prime Minister are determined to get to the bottom of what happened. The intelligence services also are keen publicly to establish their principles and integrity.

So we will have a single, authoritative examination of all these issues. We cannot start that inquiry while criminal investigations are ongoing. And it is not feasible to start it when there are so many civil law suits that remain unresolved. So we want to do everything we can to help that process along. That is why we are committed to mediation with those who have brought civil claims about their detention in Guantanamo. And wherever appropriate, we will offer compensation.

As soon as we have made enough progress, an independent inquiry, led by a judge, will be held. It will look at whether Britain was implicated in improper treatment of detainees held by other countries that may have occurred in the aftermath of 9/11. The inquiry will need to look at our security departments and intelligence services. Should we have realised sooner that what foreign agencies were doing may have been unacceptable and that we should not be associated with it? Did we allow our own high standards to slip, either systemically or individually? Did we give clear enough guidance to officers in the field? Was information flowing quickly enough from officers on the ground to the intelligence services and then on to Ministers, so that we knew what was going on and what our response should be?

We should not be naive or starry-eyed about the circumstances that our security services were working under in the immediate aftermath of 9/11. There was a real danger that terrorists could get their hands on a dirty bomb, chemical and biological weapons or even worse. Threat levels had been transformed. The urgency with which we needed to protect our citizens was pressing. But let me state clearly: we need to know the answers. If things went wrong, why? What must we do to uphold the standards that people expect?

I have asked the right honourable Sir Peter Gibson, former senior Court of Appeal judge and currently the statutory commissioner for the intelligence services, to lead the inquiry. The three-member inquiry team will also include Dame Janet Paraskeva, head of the Civil Service Commissioners, and Peter Riddell, former journalist and senior fellow at the Institute for Government. I have today made public a letter to the inquiry setting out what it will cover, so that Sir Peter Gibson can finalise the details with us before it starts. We hope that the inquiry will start before the end of this year and will report within a year.

The inquiry cannot and will not be costly or open-ended—that serves neither the interest of justice nor national security. Nor can it be a full public inquiry. Of course, some of its hearings will be in public. However, we must be realistic. Inquiries into our intelligence services are not like other inquiries. There is some information that must be kept secret—information about sources, capabilities and partnerships. Let us be frank: it is not possible to have a full public inquiry into something that is meant to be secret. Any intelligence material provided to the inquiry panel will not be made public, nor will intelligence officers be asked to give evidence in public.

But that does not mean we cannot get to the bottom of what happened. The inquiry will be able to look at all the information relevant to its work, including secret information. It will have access to all relevant government papers, including those held by the intelligence services, and it will be able to take evidence in public, including from those who have brought accusations against the Government and their representatives, and interest groups. Importantly, the head of the Civil Service and the intelligence services will ensure that the inquiry gets the full co-operation that it needs from departments and agencies. I am confident that the inquiry will reach an authoritative view on the actions of the state and our services and make proper recommendations for the future.

Just as we are determined to resolve the problems of the past so we are determined to have greater clarity about what is acceptable and what is not in the future. That is why we are publishing today the guidance issued to intelligence and military personnel on how to deal with detainees held by other countries. The previous Government had promised to do this, but they did not; we are. The guidance makes it clear, first, that our services must never take any action where they know or believe that torture will occur; secondly, if they become aware of abuses by other countries, that they should report it to the UK Government so we can try to stop it; and, thirdly, in cases where our services believe that there may be information crucial to saving lives but where there may also be a serious risk of mistreatment, that it is for Ministers, rightly, to determine what action, if any, our services should take. My right honourable colleagues the Foreign, Home and Defence Secretaries have today laid in the House further information about their role in these difficult cases.

There is something else we have to address, and that is how court cases deal with intelligence information. Today, there are serious problems. The services cannot disclose anything that is secret in order to defend themselves in court with confidence that it will be protected. There are also doubts about our ability to protect the secrets of their allies and stop them from ending up in the public domain. This has strained some of our oldest and most important security partnerships in the world—in particular that with America. Honourable Members should not underestimate the vast two-way benefit that this US-UK relationship has brought in disrupting terrorist plots and saving lives, so we need to deal with these problems.

We hope that the Supreme Court will provide further clarity on the underlying law within the next few months, and next year we will publish a Green Paper which will set out our initial proposals for how intelligence is treated in the full range of judicial proceedings, including addressing the concerns of our allies.

In this process the Government will seek the views of the cross-party Intelligence and Security Committee, and I can announce that I have appointed the right honourable Member for Kensington, Sir Malcolm Rifkind, as the chair of that committee for the duration of this Parliament.

As we meet in the relative safety of this House today, let us not forget this. As I speak, al-Qaeda operatives in Yemen are meeting in secret to plot attacks against us, terrorists are preparing to attack coalition forces in Afghanistan, the Real IRA is planning its next strike against security forces in Northern Ireland, and rogue regimes are still trying to acquire nuclear weapons.

At the same time, men and women, young and old, all of them loyal and dedicated, are getting ready to work again around the world. They will be meeting sources, translating documents, listening in on conversations, replaying CCTV footage, installing cameras, following terrorists; all to keep us safe from these threats. We cannot have their work impeded by these allegations. We need to restore Britain's moral leadership in the world. That is why we are determined to clear things up, and I commend this Statement to the House”.

That concludes the Statement.

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[Lord Strathclyde]

My Lords, I thank the noble Baroness for her reply to the Statement and her broad support for the direction of travel that we are taking. She asked a question that will be of interest to many Members of the House on our view on Guantanamo Bay and its closure. The noble Baroness knows well that the UK has long held that the indefinite detention of detainees is unacceptable and that the Guantanamo Bay detention facility should be closed. The Government of whom she was a member welcomed President Obama’s executive order to close Guantanamo Bay and worked closely with the United States to ensure that potential security and human rights concerns posed by the release of the detainees were appropriately addressed, but—this is not a weaselly “but”, but a “but” that is a matter of fact—the timetable for closure is naturally a matter for the United States Government.

The noble Baroness asked about the criminal inquiries set up by the noble and learned Baroness, Lady Scotland. My understanding is that they will continue. The mediation that we have announced today is primarily to deal with the civil cases that are before the courts and to try to deal with them as quickly and rationally as possible. Apart from anything else, that is why the Human Rights Act is extremely important. The noble Baroness will know our long-term views about the Act and the potential review and commission on a Bill of Rights. The package announced on detainees will clearly be of interest to the United Nations torture committee and we will want to cover it in our fifth periodic report. We will provide that report as soon as is practicable.

Today we are setting out how we will settle the issues of the past and make clear our rules for the future and the operation of the security services, thereby building a framework for justice that enhances our security and our liberty. I am not sure whether the noble Baroness asked specifically about the role of the inquiry and whether it would work together with the mediation. We take the view that it is simply not possible to begin the inquiry while some of the allegations are still the subject of criminal investigations. The Government take the view that it is not feasible to begin the inquiry while the civil proceedings are not sufficiently resolved.

The Statement makes a number of proposals on the inquiry, new guidance for intelligence and military personnel, a proposed Green Paper, which we hope to publish next year, and the start of mediation. It is a major Statement about trying to get to grips with what has happened in the past, but it provides for a clear framework on how we can deal with the intelligence and security services in the future.

[Lord Falconer of Thoroton]

My Lords, I broadly endorse the Statement and congratulate the Government on making it. I thought, with respect, that the reasons given for condemning Guantanamo Bay were slightly understated. It is not the indefinite detention that is bad; it is the fact that there was detention without any access to law and without a legal basis that was so objectionable. I congratulate the Government on setting up the judicial inquiry. I would call it a judicial rather than an administrative inquiry in the sense that a judicial inquiry implies that it is independent and separate from the organisation into which it is looking. Sir Peter Gibson, Dame Janet Paraskeva and Peter Riddell are excellent choices, but I have two further questions.

First, I agree with the Government that it is important that the approach that they take in dealing with detainees held by other countries should be clear. The three principles enunciated in the Statement seem to lack clarity. The first is that,

“our services must never take any action where they know or believe that torture will occur”.

Does that mean that a question should not be put to another country that detains somebody when it is feared that that other country may use torture?

My second question relates to the principle applying to the courts on keeping documents secret. The principles that the courts have applied over the years have been broadly effective; they can balance the interests of secrecy against the interests of litigants. What sort of changes are the Government considering in relation to that?

[Lord Strathclyde]

I thank the noble and learned Lord for his general welcome of the Statement. He clarified a view on Guantanamo Bay and I hope that he would not read anything into what I said as being far from the wording that he used, which is entirely appropriate.

On the inquiry being judicial, the noble and learned Lord will have plenty of experience on this and will understand the view that we have taken and the reasons for making the inquiry as it is. I very much welcome his endorsement of the three individuals who will lead the inquiry.

On the issue of clarity, one of the reasons for making this Statement is to try to give greater clarity in future for some of the decisions that are taken. For instance, there are no circumstances where we would authorise action, including receiving intelligence, in the knowledge or belief that torture would take place at the hands of a third party. If such a case were to arise, we would do everything that we could to prevent the torture from occurring. That is consistent with the absolute prohibition on torture and our values as a nation.

The reality is that, in most cases, countries do not disclose the sources of the intelligence that they share with us. However, the guidance leaves our partners in no doubt about the standards to which we adhere and the action that we will take if we suspect that intelligence has derived from the mistreatment of a detainee.

[Lord Lloyd of Berwick]

My Lords, I apologise to the House for missing the first few minutes of the Statement; I was in my room awaiting the announcement. I welcome all aspects of the Statement, particularly the decision to get to the bottom of what may have gone wrong in the past before looking to what ought to be done in the future. I welcome the appointment of Sir Peter Gibson as the chair of the inquiry. You could not have a better man for the job.

Does the Leader of the House agree that there is an almost exact precedent for the inquiry, as now contemplated, in the work that used to be done by the Law Commission, of which I once had the honour to be the chairman? If the procedure that we had in the Law Commission is followed, I hope that the inquiry will not go wrong. Does the noble Lord agree that the scope of the present inquiry will be altogether different from that of the Saville inquiry and that there is no reason at all to believe that this inquiry, like the old Law Commission inquiries, should not be completed within a year?

[Lord Strathclyde]

My Lords, I thank the noble and learned Lord for what he has said. He says it from a most authoritative position, with all his experience in reviewing terrorism legislation in the past. I am insufficiently well versed in these matters to know whether or not the Law Commission presents an exact precedent but, if the noble and learned Lord says that it does, I am happy to accept it. I also agree with him—this is important for those who might make comparisons with the Saville inquiry—that the scope of this inquiry is very different from that laid out by Saville. As we said at the time, we do not wish to see any more open-ended inquiries of that style. Again, I agree with the noble and learned Lord: there is no reason why it should not be able to complete within the next 12 months.

[Lord Howarth of Newport]

My Lords—

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[Lord Dholakia]

My Lords, I join my noble friend the Leader of the House in paying tribute to those who have lost their lives in recent days in Afghanistan. The torture allegation has been a shameful episode for the good name of our country and we welcome this inquiry. I hope that it will be able to look at why this has taken such a long time and that it will question the previous Administration about why the inquiry was not held much earlier. We are aware of the constraints placed on the coalition Government, as a number of outstanding issues need to be resolved, but I have two questions for the Minister. First, does the payment of compensation before the inquiry has reported compromise it in any way? Secondly, the Statement mentions our co-operation on intelligence matters with other countries, particularly the USA. Would it be possible for the inquiry to take evidence from those countries that are involved in the torture allegations?

[Lord Strathclyde]

My Lords, I cannot answer for the previous Administration. The noble Baroness, Lady Royall, has defended the position of the previous Government. However, we have taken action quickly and I know that my noble friend supports that. On compensation, I do not think that the two issues are related at all. We have suggested a process of mediation that could potentially lead to compensation, but that is better than the alternative, which could be years of unsatisfactory litigation in the courts. At least a process of mediation creates the possibility of creating certainty much sooner. With regard to working with other countries, we do not expect evidence to be taken from US officials. It is our intention that the inquiry will have access to material relating to foreign partners. Those partners will be consulted on the terms on which their material will be considered by the inquiry. Any intelligence material will be dealt with in private. We have, of course, discussed our plans with the US and a number of other partners.

[Lord Goldsmith]

Is the Minister aware that I, too, welcome this inquiry? I rather wish that I were welcoming it coming from the previous Administration rather than this one, but it is none the worse for that. The noble Lord is right that it is time to understand the truth or otherwise of these allegations, as I for one have been saying for some time.

I have three specific questions for the noble Lord. First, my noble friend the Leader of the Opposition raised the question of Guantanamo, rightly, because the allegations that have been made are connected with that issue. Is that an issue that the inquiry will look into—the relationship of this country to Guantanamo, the steps that were taken and why it was, as noble Lords all now agree, a wrong-headed thing for the previous US Administration to do, in principle and in practice?

Secondly, will the noble Lord help a little more on the timing of this inquiry? I understand the point about criminal proceedings and civil mediation, but I am still unclear on when this inquiry is going to be allowed to get on with its job. The more time before it starts, I suspect, the more difficult it will be.

Thirdly, the noble Lord finished his Statement by talking about future policy in relation to the use of intelligence in the courts. Is that going to include, finally, a clear answer to the question of the use of intercept evidence in court? I know that many noble Lords take a different view but for myself, from the position that I have held in the past, I believe that it is important to find a way of using such evidence in criminal proceedings. Will that be a part of the policy that will be announced?

[Lord Strathclyde]

Again, my Lords, it is encouraging to receive the noble and learned Lord’s welcome and support for the principles that underlie the Statement. It is important, when we are dealing with these matters of national security, that there is as wide an agreement across the parties as possible. The noble and learned Lord’s experience in this matter will give a lot of encouragement to others who are involved.

His first question was whether the inquiry will look at the reasons behind Guantanamo. I expect that it will be up to the inquiry to take a view about how important that is, and I cannot answer for the inquiry. I do not suppose that the topic will be excluded, but if it is, I shall write to the noble and learned Lord.

Secondly, on the timing of the inquiry, we would like it to start as soon as possible but it cannot begin until most of the legal proceedings have been dealt with, hence the reason for coming forward with mediation. It depends on the satisfactory resolution of the other legal proceedings. I also agree with what the noble and learned Lord said: the longer it is delayed, the more difficult it is to have this inquiry, so it is in everyone’s interest to reach the start date as soon as possible.

As for the noble and learned Lord’s third question, about the future and intercept evidence, I have my noble friend Lady Neville-Jones, our Security Minister, next to me here. The whole issue of intercept evidence still has to be resolved.

[Lord Howarth of Newport]

My Lords—

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[Lord Mackay of Clashfern]

I agree with the Statement, in particular the setting up of a very distinguished inquiry. I entirely agree with the views already expressed by others that these three people are eminently qualified for this task.

I also entirely supported the action of the previous Attorney-General in initiating criminal inquiries in connection with this matter. It must be right that these inquiries are completed before the new inquiry can start. I hope that it will not be unduly delayed. One cannot tell which precise circumstances will arise. However, I think it is clear that the criminal proceedings must take priority and be completed before this inquiry starts. I think I am right in saying that the Statement envisaged the work of the inquiry taking about a year. It will be extremely good if it can be done in that time. I also believe that the three people in question are eminently qualified to do it with reasonable speed. I am very grateful for the Statement. I have no particular question that I want to ask my noble friend, which is why I should not be standing at all.

[Lord Strathclyde]

My Lords, it is always a great pleasure to have my noble and learned friend standing and speaking, particularly on this, where he has very much given his support to what we are doing. I agree with him about the criminal inquiries that are ongoing, that the time for the inquiry is roughly 12 months, and about the people who have been chosen to lead it. I am sure that they, too, will be encouraged by his support.

[Lord Morris of Aberavon]

My Lords, while I welcome the setting up of the inquiry, would the Minister help us a little further on the start line? I can quite see the difficulty of outstanding procedures. As regards civil law, mediation can bring some of those procedures to an end. There are more difficulties with criminal procedures. There is a means of bringing even those to an end; it is a question of balance and whether it is in the public interest so to do. It would be helpful if the Minister could give some idea of when the inquiry is likely to start.

Secondly, I do not know how the Minister can give a firm assurance that this matter is to be completed within a year. I had to set up public inquiries—the first was 45 years ago—the intention being to finish in weeks, but some went on for months. I do not know how the Minister can give the assurance that it will finish within 12 months, as I hope it will.

[Lord Strathclyde]

My Lords, I am glad to hear that the noble and learned Lord shares the aim of delivering as quickly as possible. He is right to ask how we can guarantee that. We cannot, but there is a general will from all sides to complete an inquiry once it has started. When can it start? Like us, the police take the view that it is simply not possible to begin the inquiry while some of the allegations are still the subject of criminal investigations. The Government take the view that it is not feasible to begin the inquiry while the civil proceedings are not sufficiently resolved. We hope that we can deal with the civil proceedings through mediation if that is acceptable to all sides. The police are continuing their criminal investigations. It is in everybody’s interests to start this inquiry but, for the reasons that I have laid out, I cannot give an exact date.

[Lord Wright of Richmond]

My Lords, as a former chairman of the Joint Intelligence Committee—admittedly a very long time ago—I endorse everything that the Minister said about the professionalism, effectiveness and bravery of our security and intelligence services. I have one question. Will the inquiry address or readdress the question of the rendition of detainees through British territory and, in particular, through Diego Garcia?

[Lord Strathclyde]

My Lords, the noble Lord is experienced and knows full well about the bravery and work of our security services. As far as extraordinary rendition is concerned, there is no barrier whatever to the inquiry looking into such issues and the matter of Diego Garcia if that should be pertinent to it.

[Lord Howarth of Newport]

My Lords—

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[The Lord Bishop of Chester]

My Lords, would the noble Lord the Leader of House comment a little more on the terms of reference of the inquiry? Is it an inquiry into the facts of what happened or into the broader reasons why it was permitted to happen?

[Lord Strathclyde]

The inquiry will look at whether the UK was implicated in the improper treatment of detainees held by other countries that may have occurred in the aftermath of 9/11.

[Baroness Hamwee]

My Lords, building on the last question and those of the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Wright of Richmond, would the Government consider consulting on the precise terms of reference? We have seen on previous occasions that where matters fall outside the precise terms of reference of an inquiry, it can cause some problems. Secondly, can the Government be clearer about whether the Green Paper which is referred to will be part of the review of security which we know is in train?

[Lord Strathclyde]

My Lords, I do not think that the terms of reference have been finalised at this stage, not least because the inquiry has not been set up. I am sure that what the noble Baroness has said will be taken into account. I have completely forgotten the other matter which the noble Baroness raised.

[Baroness Hamwee]

Is the Green Paper to be part of the review of security?

[Lord Strathclyde]

The Green Paper is a Green Paper. It will be published next year. Because of that, we have not yet decided what will go into it.

[Lord Howarth of Newport]

My Lords, I was a member of the parliamentary Intelligence and Security Committee for four years. My whole disposition is to believe in the good principles and integrity of the agencies, and in their competence as they go about their crucial work which, as the Statement reminded us, often comes at a high price to them and their families. Is it not the case that because of the real danger of terrorist assaults on our people and of weapons of mass destruction getting into the hands of terrorists or irrational regimes, we live in a permanent state of emergency, and that the secret state is no less powerful now than it was in the Cold War? Will the Government ask the panel of inquiry, if it should find that there have been failures of standards, to propose reforms to the apparatus of deception and secrecy—necessary deception and secrecy—so as to make sure, as far as possible, that there would not in the future be covering up of embarrassments; concealment of crimes; circumvention of parliamentary oversight; and, at worst, manipulation of Ministers and disabling of the proper processes of policy-making?

Everybody must surely welcome without reservation the appointment of Sir Malcolm Rifkind to chair the ISC. Will the Government consider further empowering the ISC so that it can have access to persons and papers as it requires, without having to seek special permission from Ministers, case by case; and supplying it with a stronger secretariat to enable it to use those powers, so that if the parliamentary committee has the political will, it will be better able to do the job of exercising oversight and ensuring accountability to Parliament?

[Lord Strathclyde]

My Lords, it is because all those who have spoken today and the Government care so much about the integrity and reputation of the security services that we have made this Statement. It is not just about their reputation in the United Kingdom. What is so important is the international reputation of the security services. That is why we need to find out the truth of the allegations. When the inquiry comes to its conclusions, we will be able to see what action, if any, needs to be taken. None of us is in favour of anything being covered up, whether the defence is in the public interest or not. We wait for the inquiry to reach its conclusions.

As for the ISC, I am glad of the noble Lord’s welcome for the chairman, Sir Malcolm Rifkind. I think we all agree that he will do an extremely good and useful job. On the ISC generally, the Government are committed to maximising the role of the oversight mechanism, which is why the Prime Minister has appointed a strong and experienced chairman who has committed to serving for the full parliamentary term and to undertaking a serious work programme, including public hearings. What “maximising the role of existing oversight mechanisms” means at this stage is something that will be reviewed in due course.