The UK’s policy on torture has been described as “fatally flawed” after a watchdog identified non-compliance by intelligence agencies and the Ministry of Defence.
An influential parliamentary group and human rights campaigners say failings identified by the Investigatory Powers Commissioner’s Office (IPCO) demonstrate the rules must be changed.
Doing so could prevent the UK from becoming complicit in torture and help stop the risk of repeating the failings of the “war on terror”.
In its newly published 2021 annual report, IPCO found the “most significant deficiency” was a failure by agencies – those overseen by IPCO include MI5 and MI6 – to remind ministers there was a “presumption not to proceed” in cases where there is a “real risk of torture”.
It also found failures “on several occasions” by the MoD to comply with “the principles”, the published government policy on intelligence and torture, introduced in 2020 to improve oversight of treatment of detainees overseas.
For the first time, IPCO stated that an intelligence service agent had been referred to police on suspicion of committing a criminal offence. The MI6 agent was reported for going beyond the limits of their section 7 authorisation under the Intelligence Services Act 1994 to commit certain criminal offences in the discharge of their function, although officers decided no further action was necessary.
The human rights group Reprieve said IPCO’s findings highlighted that the current policy on torture and intelligence was not working.
Dan Dolan, Reprieve’s director of policy and advocacy, said: “The government’s torture policy is fatally flawed, wrongly creating the impression that ministers can authorise torture tipoffs, when this is fundamentally unlawful.
“We saw these failings time and again during the war on terror, with appalling consequences for people around the world, including British nationals, and it’s now been uncovered that the abduction and brutal torture of British blogger Jagtar Singh Johal may have been unlawfully enabled by a torture tipoff from the UK.”
Torture tipoffs are when one nation provides information to another country despite a real risk of this leading to torture.
Dolan added: “We need a policy that actually prohibits, rather than simply papering over, UK complicity in torture. What reason could there be to preserve this wiggle room for ministers to get mixed up in torture, other than the prospect that they will use it?”
Johal’s lawyers are seeking a court apology from the government over its handling of his case, alleging a tipoff was made in the knowledge that torture might follow the Sikh activist’s 2017 arrest in India, where he faces a possible death sentence.
But the Foreign Office, in its filed defence against the claim by Johal’s lawyers, refuses to confirm or deny any transfer of information.
In 2021, ministers were asked three times to approve cases where a real risk of torture, unlawful killing or extraordinary rendition had been identified despite the presumption not to proceed, the IPCO report says. In another 17 cases ministers were asked to approve cases in which a real risk of cruel, inhumane or degrading treatment had been identified. The report does not state whether approval was granted in any of the 20 cases.
IPCO says the principles are intended to “support the UK government’s position that it does not participate in, solicit, encourage or condone unlawful killing, the use of torture or cruel, inhuman or degrading treatment, or extraordinary rendition”. But critics say the mere “presumption not to proceed” does not have this effect – especially when it is not even being flagged to ministers.
Stephen Timms, co-chair of the all-party parliamentary group on extraordinary rendition, said: “The ambiguity built into this policy creates serious dangers. We warned the government years ago that unless the policy explicitly prohibits torture tipoffs, they would be doomed to repeat the mistakes that led to the UK’s shameful, and unlawful, involvement in torture and rendition.
“These new revelations should be a wake-up call that a clear red line is needed in the policy which reflects the absolute prohibition in UK law.”
Gurpreet Singh Johal said the family felt betrayed knowing the British government might have played a part in his brother’s plight.
“All he had done was write about the Indian authorities’ mistreatment of Sikhs so if this can happen to Jagtar, it could happen to any British national travelling overseas,” he said. “I urge the government to take a clear stand on torture and ensure no other family is put through this living hell.”
The report was not the first time IPCO had found failures to comply with principles by the MoD, which was revealed in 2018 to have a policy for information sharing with allies when there was a risk of torture, if the possible benefits justified the exchange.
A government spokesperson said: “We have extremely robust measures in place to ensure ministers are briefed on the intelligence matters they oversee. As this report notes, the security and intelligence agencies, law enforcement agencies and other public authorities’ use of investigatory powers show high levels of operational competence and respect for the law.”
