How Was The UK's Secret 'Torture Loophole' Policy Approved? Barrister

Secret ‘Torture Loophole’ Raises Serious Questions For Government, MP David Davis And Barrister Say

The government must be asked “serious questions” on how a secret policy allowing ministers to approve actions that could lead to torture was signed off, a leading QC and Tory MP have said.

A document obtained by research initiative The Rendition Project under the Freedom of Information Act, published today (May 20), appears to have unearthed a secret government policy.

It suggests ministers can approve actions carrying a serious risk of torture if “the potential benefits justify accepting the risk and legal consequences”.

This policy also makes a provision for ministers to pre-approve lists of individuals about whom information may be shared despite a serious risk they could face mistreatment, according to human rights activist group, Reprieve.

Reprieve fears that the document “runs roughshod” over the government’s “official” torture policy – known as the Consolidated Guidance.

It has written to the Investigatory Powers Commissioner (Ipco) Sir Adrian Fulford, who is currently reviewing the guidance.

“This previously-secret document brings to mind the worst excesses of the War on Terror and tramples all over the government’s official policy,” said Dan Dolan, deputy director of Reprieve.

“Ministers can’t authorise action leading to torture without breaking the law,” he added.

However a Ministry of Defence (MoD) spokeswoman insisted that the policy complies with the government’s Consolidated Guidance.

‘Serious Questions Need To Be Asked Of The Government As To Who Oversaw And Approved This Policy’

Image Credit: Doughty Street Solicitors. Barrister Kristy Brimelow.

The right not to be tortured is protected under Article 3 of the Human Rights Convention and Article 7 of the International Covenant on Civil and Political Rights as well as through UK and European case law.

Speaking to RightsInfo, human rights Barrister Kirsty Brimelow QC, a former chairwoman of the Bar human rights committee, said: “Laws don’t just apply to civilians – to you and I – but also to politicians.

The UK has a positive obligation to protect individuals from torture.

Barrister Kristy Brimelow.

“In fact there is an additional responsibility upon politicians – which is to actually implement prohibition of torture.

“The UK has a positive obligation to protect individuals from torture.”

However this secret document “does the opposite” of politicians’ duty to “draft policies that contribute to avoiding torture,” she added.

“It seeks to finds ways around the torture prohibition.

“It purports to set out due diligence in consideration of rights to freedom from torture, including not condoning or encouraging torture, but then introduces potential exceptions which bring the UK into direct conflict with law which it is obliged to uphold.”

Ms Brimelow said that the policy recognises that there might be legal consequences to its guidance but considers that “the ends might justify the means”.

Made public only through the Freedom of Information Act, she was also concerned that the policy appears to have been withheld from its oversight mechanism, Ipco, and Parliament.

“Serious questions need to be asked of the government as to who oversaw and approved this policy,” she added.

“If these exceptions are pursued, they should be placed before Parliament for appropriate parliamentary scrutiny.”

‘Getting Mixed Up In Torture Makes Us Less Safe, Not More’

Image credit: Dragan Tatic/Flickr 

Former Brexit Secretary and Conservative MP David Davis, a civil liberties campaigner, has called on the defence secretary to rescind the policy because it “betrays” British values.

When asked by RightsInfo if he too feels that the document’s seemingly secret approval raises “serious questions” for the government, he said: “I think that is a very good question.

He praised the Defence Secretary Penny Mordaunt and said: “One of the things the Secretary of State will have to look into is how that got approved.”

He spoke of the urgent need for a judge-led inquiry into Britain’s past involvement in torture and rendition and added: “We don’t believe in torture – we believe in rules and laws even when they are prisoners.

“If we betray our rules, then we betray those values.”

Writing in the Times, Mr Davis said: “I have no illusions about the threat we face from enemies foreign and domestic.

“But when a government gets mixed up in torture it makes us less safe, not more.”

The fault does not lie with “our armed forces or intelligence agencies”, he added, but rather with “the decisions made in Westminster to trade information with torturers”.

What Does The Government Say?

A MoD spokeswoman said: “The Investigatory Powers Commissioner’s Office have confirmed they are entirely satisfied with the MOD’s activities and standards in this area.

“All our policy and activities in this area comply with the Cabinet Office’s Consolidated Guidance.”

Main Image Credit: J P Davidson/ Flickr and Dragan Tatic/Flickr 

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About the Author

Aaron Walawalkar

News and Digital Editor
Aaron is an NCTJ-accredited multimedia journalist focussing on human rights. His extensive reporting on rough sleeping in east London has been nominated for multiple awards. He has worked for regional and national newspapers and produced illustrations, infographics and videos for humanitarian organisation RedR UK. View all posts by Aaron Walawalkar.
Secret ‘Torture Loophole’ Raises Serious Questions For Government, MP David Davis And Barrister Say
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