UK Government policy on torture could break law

The UK’s official human rights watchdog has warned the government that its newly published guidance on torture may be unlawful and open to challenge in the courts.The Equality and Human Rights Commission has written to prime minister David Cameron and to the heads of MI5 and MI6 expressing “serious concerns” about the guidance, and explaining how it believes it could be altered to comply with UK and international law.

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.


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