The EHRC made clear that the correspondence is a formal letter before action, putting the government on notice that it may turn to the courts to seek a judicial review of the guidance if it is not amended.
The guidance governs the conduct of MI5 and MI6 officers and service personnel who are interrogating people held by overseas governments. It also regulates what it describes as the “passing and receipt of intelligence relating to detainees”, such as handing questions to overseas intelligence agencies who are questioning a suspect. The guidance was rewritten following the formation of the coalition government, and published on the day that Cameron promised a judicial inquiry into the UK’s involvement in torture and rendition since the al-Qaida attacks of September 2001.
However, the EHRC is particularly concerned that although the rewritten guidance prohibits officers and service personnel from taking any action that they “know or believe” will lead to torture, there is no such prohibition if they believe there is a lower risk of cruel or inhuman treatment. In some instances, the guidance says intelligence officers can proceed if the risks can be mitigated through “caveats or assurances”, or if government ministers have been consulted.