When you wish upon a rendition and torture inquiry…

by Adam Wagner

1 Crown Office Row’s Philippa Whipple QC and Matthew Hill were counsel to the Detainee Inquiry. They are not the writers of this post.

On 6 July 2010, in the first innocent days of the Coalition Government, former appeal judge Sir Peter Gibson was asked by the Prime Minister to enquire into “whether Britain was implicated in the improper treatment of detainees, held by other countries, that may have occurred in the aftermath of 9/11.” Almost 3 1/2 years later, the Detainee Inquiry has produced a report (it was originally presented to the Government on 27 June 2012 but there have been heavy negotiations about sensitive material in the public version).

The report makes clear at the outset that it “does not, and cannot, make findings as to what happened”. Why so? Because the Inquiry was scrapped before it heard evidence from any witnesses, so it couldn’t test any conclusions reached purely on the basis of documentary evidence. The reason given at the time by Sir Peter was that “it is not practical for the Inquiry to continue for an indefinite period to wait for the conclusion of the police investigations“. The “investigations” are those into claims of collusion by the intelligence services with torture in Libya (see this Q&A for more).

There had already been a mass walk-out of the Inquiry by former and current detainees and Non Governmental Organisations, so the job of the inquiry was looking increasingly difficult.

The result is that this report reads, literally, like a wish list. Indeed, the word “wish” appears 117 times. Annex A is a “List of issues and areas the Inquiry would have wished to investigate“, and contains 27 in all.

Despite it being preliminary, there is a lot in there which is worrying. As Sir Peter told reporters, “[i]t does appear from the documents that the United Kingdom may have been inappropriately involved in some renditions. That is a very serious matter. And no doubt any future inquiry would want to look at that.”

But will there be a future inquiry? Well, sort of. The Intelligence and Security Committee (ISC), a joint committee whose members are appointed by the Prime Minister, will now consider the issues and produce a report. But when the Joint Committee on Human Rights (JCHR) reported on the collusion issue in 2011, it said at §65 that:

The missing element, which the ISC has failed to provide, is proper ministerial accountability to Parliament for the activities of the Security Services.

It is a significant irony that in 2011 the JCHR concluded that the allegations of complicity in torture “should be a wake up call to Ministers that the current arrangements [of review by the ISC] are not satisfactory“, but now the issue has nonetheless been sent back to be investigated by that committee. Ken Clarke (remember him?) emphasised that the ISC was up to the task in today’s announcement to Parliament, but one wonders whether the NGOs which abandoned the inquiry over its alleged lack of openness might now wish they had stuck with it – see the comments, for example, from Reprieve .

None of this is encouraging. The UK has a duty under Article 3 of the European Convention on Human Rights to investigate allegations of complicity in torture and ensure that proper systems are in place to make sure any wrongdoing isn’t repeated (see e.g. this case). Sir Peter has raised serious concerns and they should be independently investigated, as this Government promised. In light of criticisms of the ISC, there must be serious doubts that it will be up to the job. Even with its moderately increased powers, the ISC still falls well short of a judge-led inquiry.

There is a possibility that once criminal investigations are concluded and the ISC has reported, Sir Peter or another former/current judge will be asked to resume this work. But at present, it looks like Sir Peter’s report – despite the fundamental importance of these issues – will remain merely a wish list.

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