The Terms of Reference and the Protocol for the Government’s impending Detainee Inquiry have recently been published. The Protocol makes clear that the Inquiry is to be granted unfettered access to a broad range of information, but the limitations on the publication of that information have prompted criticism from human rights groups.
On 6th July 2010, Prime Minister David Cameron announced to the House of Commons that an independent inquiry would be held into whether or not the UK Government was implicated in or aware of the improper treatment of detainees held by other countries in the aftermath of the September 11th terrorist attacks. On the same day, he wrote to Sir Peter Gibson inviting him to lead the inquiry, and appointed as his fellow panel members Dame Janet Paraskeva and Peter Riddell. Philippa Whipple QC of 1 Crown Office Row has been appointed as counsel to the inquiry – she is not the writer of this post.
Exactly one year after the Prime Minister made his announcement, on 6th July 2011 the Inquiry and the Government published the Terms of Reference (TOR), which officially define the substantive scope of the Inquiry’s investigations.
As indicated by the Prime Minister a year ago, the Inquiry is to look into whether, and if so to what extent, the UK Government or its security/intelligence agencies were involved in or knew about the improper treatment or rendition of detainees held by other countries in overseas counter-terrorism operations in which the UK played a part. It is also to look at the Government’s policy in respect of its developing awareness of the practices of other countries in their treatment of detainees, how that policy was implemented, and what guidance was given to UK Crown servants in their dealings with detainees held by other countries.
At the same time as publishing the TOR, the Inquiry also released the Protocol which will guide the conduct of its investigations. As well as setting out various procedures on practical matters, the Protocol is designed to address the challenges involved in conducting a thorough and open investigation into sensitive issues, whilst not compromising national security. This is always a difficult balance to strike, although the Prime Minister appeared sanguine about the prospect of reconciling the two objectives in his letter to Sir Peter:
In an Inquiry of this kind, it is of fundamental importance to protect national security, without of course any prejudice to the rigour or depth of your work.
There are certainly provisions in the Protocol which seek to secure effectiveness and rigour. Although the Inquiry is not a statutory Inquiry established under the Inquiries Act 2005, and thus it does not have the power to compel witnesses or evidence, under the terms of the Protocol the Inquiry is able to request any information it considers relevant, and the Government is committed to undertaking “rigourous searches as could reasonably be expected” to identify and source that information. It is then to be provided to the Inquiry as soon as possible – nothing is to be withheld unless the Inquiry accepts that in respect of the information at issue the Government is bound by an existing legal duty of confidentiality e.g. where under the terms of a civil settlement with a detainee the Government is prevented from revealing certain information.
The more controversial issue is what is to be done with that information once it has been provided to the Inquiry. Under the terms of the Protocol, when the Inquiry wishes to publish information that it has received, it is to notify the Cabinet Office, which is the sponsoring Department of the Inquiry. A process of dialogue and negotiation is then to be undertaken where there is disagreement over publication, but ultimately, the final decision rests with the Cabinet Secretary.
This been criticised on the basis that the Protocol allows the Cabinet Secretary to justify a refusal to allow publication based on the need to respect the
understandings and commitments between HMG and its security and intelligence agencies and the authorities and the agencies of any foreign government concerning the confidentiality, security and protection against disclosure outside the Inquiry of any information to which those understandings and commitments relate.
There is a fear that much of the crucial information would be subject to an “understanding” with another State that it would remain secret. However, it should also be noted that the Protocol provides that where material is sensitive, efforts should be made by the Cabinet Secretariat and the Inquiry to agree a form in which the information can be safely released e.g. subject to redactions. It goes on to state:
The expectation is that the majority of disclosure issues should be capable of resolution in this manner.
Other criticisms have focused on the fact that the Inquiry is not to request evidence from the authorities of other countries (on the basis that the Inquiry is intended to focus on UK activities), and that members of MI5 and MI6 will be giving their evidence in private (with the exception of the heads of the agencies).
There have also been complaints that representatives of detainees will not be permitted to ask questions of those giving evidence, although they may suggest questions to Counsel to the Inquiry or the Inquiry panel itself, which may then put the question to the witness – this is quite standard in Inquiry procedure. For example, this is the system in place for the ongoing the Mid Staffordshire NHS Foundation Trust Public Inquiry.
Spokespersons for a number of prominent human rights organisations have expressed their objections in strident terms. Shami Chakrabarti, the Director of Liberty labelled the Inquiry a “sham” in which “[m]inisters not independent judges will decide what the public is entitled to know”. Clive Stafford-Smith, Director of Reprieve, said it would be a “white-wash” and complained that “national security continues to be conflated with political embarrassment in this process”.
These are perhaps intentionally provocative ways of expressing the general concern that the Inquiry will not be effective, due to the restrictions on the involvement of the detainees themselves, and the limitations on publicity. This raises the question of whether or not the Inquiry is compliant with Article 3 of the European Convention of Human Rights, which imposes a positive obligation to independently and thoroughly investigate allegations of serious mistreatment.
The question of such compliance, and the preliminary question of whether the Inquiry in this case is actually required to comply with the Article 3 investigative obligation in the context of allegations of knowledge and complicity, are challenging questions which are better left to another post. For present purposes, it is worth noting that the Inquiry has been prompted to respond to the criticisms levelled against it, after the Guardian reported that lawyers for the victims were threatening a boycott. In a statement released on 8th July, it said:
Understandably there have been criticisms about the limited openness that is possible and about who has the final decision on what information can be shared in public. However, the Protocol provides effective procedures designed to enable the NGOs, the detainees and other members of the public to follow the Inquiry and participate in its work.
In relation to the issue of disclosure, it said:
Where there is dispute between Government and the Inquiry Panel in relation to the public disclosure of material, the Protocol provides for the Panel to call for formal submissions from the Government and for the Panel then to make a decision on the balance of conflicting interests. They will then send their decision to the Cabinet Secretary and he will have the ultimate word on publication. It is important to realise that, even if this Inquiry had been established differently as a statutory inquiry, the ultimate decision on what could be made public would still have rested with Government under the Inquiries Act 2005.
It concluded by reiterating its own commitment, as an independent body, to making the Inquiry as open as possible, whilst acknowledging the invetible tension between openness and national security:
The Inquiry Panel are independent of Government and are determined to be as open as possible, while respecting the national security and other public interest concerns which inevitably arise in an inquiry of this kind. We do not believe that the criticisms which have been reported are justified and we hope that those who are now threatening to boycott the Inquiry will think again.
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