There are interests inside government that oppose some aspects of the absolute ban on torture and this is a driver for plans to replace the Human Rights Act with a British Bill of Rights, and perhaps even to withdraw the UK from the European Convention on Human Rights (ECHR).

For this reason, Freedom from Torture is highly concerned that proposals for a British Bill of Rights will corrode centuries of British leadership on the torture ban - with serious legal, policy and moral implications for the UK and the wider international community.

The torture ban - a long tradition of British legal leadership

Torture was ruled out by the English common law - and proscribed by Magna Carta[1] - as far back as the 13th century before the Crown practice of issuing torture warrants was finally ended by the Long Parliament in 1640.[2] It was not until the 18th and 19th centuries that Continental Europe followed suit.

This history of British leadership on the torture ban should be a source of pride across the political spectrum, but especially amongst Conservatives whose philosophy is heavily defined by a commitment to protecting individual liberties against abuse by the state.

As Jesse Norman and Peter Oborne note in Churchill's Legacy: The Conservative Case for the Human Rights Act, these British developments paved the way for the prohibition on torture, inhuman or degrading treatment or punishment in the ECHR, which was largely penned by a Conservative lawyer and politician, Sir David Maxwell Fyfe.[3]

This pioneering role in forging legal norms against torture is also a foundation stone of Britain's claim to be a cradle of liberty and its enduring reputation, in the words of Prime Minister Theresa May, as a global "beacon of hope"[4], including for torture survivors.

Why a British Bill of Rights is a risk to the absolute torture ban

The universality of human rights, including the torture ban, has been a cardinal principle of international law since the Universal Declaration of Human Rights was adopted in 1948.

Replacing the Human Rights Act with a British Bill of Rights is an affront to this principle. A member of the Survivors Speak OUT network, an activist network supported by Freedom from Torture, explains that “a ‘British’ Bill of Rights suggests that the government gets to decide human rights. It takes away the universality of rights. It takes away the human”.

Any specific provisions of a British Bill of Rights making some human rights contingent on nationality or immigration status would also undermine this important principle in concrete ways.

Watering down the torture ban protected by Article 3 of the ECHR and the Human Rights Act, especially as it applies to non-British citizens, has been an objective for many of those seeking to repeal the Human Rights Act. Among the most significant proposals are:

1.    Dilution of the absolute ban on removals to a "real risk" of torture in another country

In the lead-up to the 2015 general election, the Conservative Party suggested that a "clearer test" is needed when applying the torture ban to deportation and other removal cases.[5] This must mean a weaker test, since nothing could be clearer than the absolute nature of the current rule.

In an essay he wrote for Bright Blue, Damian Green MP fleshed this intent out by suggesting that the government should be permitted to remove someone to a "real risk" of torture on national security grounds.[6] Even among Conservative thinkers, this idea is highly controversial. At the launch of this Bright Blue project, Dominic Grieve QC MP rightly described it as a "mistake" that would "drive a coach and horses" through the ECHR.[7]

Freedom from Torture urges Bright Blue's Commission to strongly recommend against any weakening of the absolute ban on torture in removal cases for the following reasons:

- It would be a death knell for the fundamental principle that the torture ban applies absolutely and equally to all human beings no matter who they are, how unpopular they may be or how reprehensible their conduct. Britain led the way in forging this principle - in spite of wars, espionage and other risks to national security - and it would be tragic if it were to contribute to its demise.

The national security case for jettisoning such an iconic principle is weak. As Jesse Norman and Peter Oborne point out, deportation of non-citizens posing a serious threat to national security is possible "in the vast majority of cases". The exception where there is a real risk of torture is "desperately needed", they add, given evidence of British complicity in torture and extraordinary rendition in the so-called "war on terror" (see further below).[8]

It would undermine the cause of torture prevention by requiring the UK to at best turn a blind eye or at worst impliedly sanction torture practices in receiving states for those it removes pursuant to a more permissive test. If torture did ensue, the UK would be vulnerable to accusations of collusion.

It would create a "slippery slope" not only in the UK – where immigration decision-makers, legislators and others could be expected to push for an ever wider expansion of the national security exception (e.g. to cover low level association with designated terrorist groups[9] or other types of criminal conduct) - but also in other countries that would surely invoke this UK legal precedent to justify their own removal and even torture practices for those they deem a risk to national security. In this regard, we emphasise that many survivors we assist were tortured because their involvement in legitimate opposition politics, challenging of discrimination or standing up for human rights was considered threatening to national security.

It is contrary to a well-established norm of international law protected not only by the ECHR[10] but also by other treaties to which the UK is a party including the UN Convention Against Torture which expressly prohibits removals to a risk of torture.[11] Any violation of this norm or withdrawal from human rights treaties to facilitate such practices would be highly damaging to the UK's foreign policy priority to promote the rules-based international system, including the international human rights protection system.

2.    Exempting British overseas military operations from Article 3 of the ECHR

The government has launched a vociferous public campaign against use of Article 3 of the ECHR in law suits alleging abuse by British military personnel of Iraqis, Afghans and others during operations abroad. Ministers have railed against "an industry of vexatious claims" while downplaying the extensive evidence of serious abuse, including:

  • The Baha Mousa inquiry found that an Iraqi civilian died following “appalling” and “gratuitous” violence by UK soldiers and that the same regiment had committed many other abuses.
  • The Al-Sweady inquiry also found that British interrogators had ill-treated Iraqi detainees (a point that is often overlooked in public debate).
  • The Ministry of Defence has paid out more than £22 million to settle hundreds of other cases.

Prior to the 2015 general election, the Conservative Party pledged that a British Bill of Rights would “limit the reach of human rights cases to the UK, so that British Armed forces overseas are not subject to persistent human rights claims that undermine their ability to do their job and keep us safe[12].

The principle that Article 3 applies to overseas military operations in exceptional circumstances is well settled legally[13] so, unless the UK withdraws from the ECHR, any domestic legal provision barring the UK courts from hearing such cases would simply channel any contested complaints to Strasbourg. The government has therefore announced a sweeping plan to derogate from the ECHR in respect of future armed conflicts abroad. Such a move would be unprecedented in the history of the ECHR and presents a host of legal difficulties.[14] In any event, however, Article 3 is non-derogable[15] and given that the majority of relevant cases allege violations of this ban, it is difficult to see how such a move could deliver the government’s stated policy objective.

Freedom from Torture urges Bright Blue's Commission to strongly recommend against any attempt to exempt British overseas military operations from Article 3 of the ECHR for the following reasons:

  • It would inevitably be interpreted as a signal that British troops are incapable of or not committed to complying with the torture ban when deployed abroad which:
  • Would damage the British military’s reputation in the UK and abroad;
  • Risks undermining the valiant work of legal advisors and others working inside the military to uphold the torture ban in military operations via guidance, training and other internal processes, including the leadership on sexual violence and torture in conflict championed by Vice Chief of the Defence Staff, General Sir Gordon Messenger; and
  • Could lead to torture of captured British troops - as US Senator and torture survivor John McCain argues in the American context, “While some enemies, and al-Qaeda surely, will never be bound by the principle of reciprocity, we should have concern for those Americans captured by more conventional enemies, if not in this war then in the next.[16]

 

  • It would remove a vital means of legal redress for victims and survivors – it is not sufficient to argue that the military would still be bound by prohibitions on torture under international humanitarian law and criminal laws (both international and domestic) with exterritorial effect[17] because it is far harder to prove torture to the criminal standard (which helps explain the rarity of prosecutions) and these laws do not enable victims and survivors to seek civil law damages.
  • Extra-territorial application of the ECHR also protects British troops themselves against human rights abuses by the Ministry of Defence. This was confirmed by the UK Supreme Court in an important ruling relating to the implications of the right to life (Article 2)[18] but the implications extend to treatment contrary to Article 3 as well.

Advancing the torture ban in British foreign policy

Below we respond to the specific questions posed by Bright Blue on torture prevention:

1.    Which countries are most likely to use torture, and what is the nature and scale of the torture they use?

It is difficult to assess the global scale of torture because it usually takes place secretly and torturing states invariably downplay its extent or deny it altogether. According to Amnesty International, 122 countries tortured or otherwise ill-treated people in 2015.[19]

In 2016, Freedom from Torture provided clinical services to more than 1000 survivors of torture in the UK who came from more than 60 countries. The most common countries of origin for our clients include Afghanistan, the Democratic Republic of Congo (DRC), Iran, Sri Lanka (top country of origin for the past five years) and Turkey. We produce research publications analysing different torture methods used in some of these countries, based on forensic reports prepared by specialist doctors from our medico-legal report service.[20]

2.    Which countries or forms of torture are most worrying?

All forms of torture – whether physical or psychological/environmental - violate the fundamental human rights of the individual concerned and have a profound effect on a survivor's immediate and long-term health and well-being. None is more or less "severe" or "worrying" per se - the impact on the individual will be determined by the cumulative effect of such factors as the conditions of detention and methods of torture they endured, their prior life experiences and their level of personal resilience.

Of particular concern to Freedom from Torture is the challenge of securing robust action against torture in "post-conflict" states and the assumption often made, including by diplomats, that the end of hostilities means the end of torture and/or that accountability should be postponed or avoided in the service of stability and reconciliation.

3.    Can you provide examples of diplomatic efforts or other interventions that have been successful in reducing torture in particular countries?

In its 2014 Human Rights and Democracy Report, the Foreign and Commonwealth Office (FCO) explains that it presented Freedom from Torture's forensic evidence of persecutory rape beyond the conflict zone in the DRC[21] to the Congolese Vice Minister for Human Rights and pushed for an investigation. According to the FCO, "Whilst the DRC government did not acknowledge that the violations had taken place, it took the initiative to conduct surprise checks on police detention facilities. Those found to have been arbitrarily detained were released, and facilities, where human rights violations including torture were found to have taken place, were closed."[22]

Freedom from Torture has launched a new Torture Accountability Programme to build further on these sorts of successes which illustrate the vital role that torture rehabilitation centres and other civil society groups with access to torture survivors can play in collecting evidence for use in torture prevention efforts led by actors with leverage over torturing states, including governments that provide aid or have important trade, historical or other relationships.

We also draw Bright Blue’s attention to Does Torture Prevention Work?, a recent research report commissioned by the Association for the Prevention of Torture (APT) which surveyed torture prevention approaches in 16 countries and concluded that the most successful strategies focus on safeguards in the first hours and days after a person is detained.[23] While this is undoubtedly one of the most important studies ever conducted in this field, it is worth noting its heavy focus on torture committed in the criminal justice context; many of the survivors treated by Freedom from Torture - who are asylum seekers or refugees and tend to have been specifically targeted for political or other reasons - were tortured outside this context, often with no due process observed whatsoever. This has important implications for torture prevention strategies and priorities adopted by governments, multilateral organisations such as the UN and EU, philanthropic funders and others.   

4.    What role can the British Government play in reducing torture worldwide?

Our example above illustrates the very real potential for the UK to build on its historic leadership on the torture ban and contribute to prevention efforts around the world via human rights diplomacy.

In August 2015, however, the FCO announced that it was dropping its specific priority on torture prevention in favour of a more flexible human rights strategy. This shift coincided with a strong and deeply worrying impression, remarked upon by the Foreign Affairs Select Committee[24], that human rights generally have been downgraded in UK foreign policy since William Hague MP stood down as Foreign Secretary. In this regard, Freedom from Torture supports Bright Blue's call for an independent Human Rights Advisory Committee to guide, promote greater transparency for and scrutinise the FCO's human rights work, and considers that such a committee ought to include an express focus on how to continue UK leadership on the torture ban.

More generally, the UK should take a two-pronged approach to reducing torture worldwide focused on sustained promotion of the torture ban abroad while also leading by example in upholding it at home.

Freedom from Torture recommends that Bright Blue's Commission call for the following foreign policy measures to reduce torture worldwide:

Specific torture prevention and accountability objectives to be woven more firmly and publicly into the UK's bilateral and multilateral diplomacy with torturing states. Defence and security engagement as well as trade strategies should explicitly set out how torture prevention and accountability work will be mainstreamed throughout them and the FCO should be questioned on the delivery and outcomes of this work by both the Committee proposed above and the Foreign Affairs Committee.

The Prime Minister's continued political commitment to the Preventing Sexual Violence Initiative (PSVI), which encompasses sexual torture. This is an innovative, high profile Conservative initiative offering many lessons for torture prevention work including the value of:

  • A more modern style of "campaigns" diplomacy in building global political momentum on these sorts of issues;
  • Survivor testimony in exposing violations and holding perpetrators accountable in support of long-term stability and reconciliation efforts;
  • Survivor empowerment - as the PSVI has developed, ministers have increasingly recognised the importance of active participation by survivors beyond testimony in prevention and accountability efforts. For example, the Survivors Speak OUT network now advises on policy and implementation via the Prime Minister’s Special Representative of PSVI’s steering group.

Freedom from Torture recommends that Bright Blue's Commission call for the following domestic policy measures to reduce torture worldwide:

Upholding of the torture ban within the UK's own legal system - see our recommendations above aimed at preventing backsliding in relation to removal decisions and overseas military operations. It is of critical importance for the UK to hold the line in light of:

  • The risk of further lapses by the US given rhetoric by US President Donald Trump on the campaign trail that "torture works" and he would consider re-introduction of water-boarding and "much worse".[25]
  • The obvious advantage that torturing states within the Council of Europe system, especially Russia and Turkey, and those beyond would make of any UK legal regression on the torture ban to justify backsliding of their own.[26]

Delivering a human rights compliant judicial accountability process for allegations of UK complicity in torture during the so-called "war on terror". In the words of former Prime Minister David Cameron, these allegations are a "stain" on the UK's reputation "as a country that believes in freedom, fairness and human rights."[27] Truth and accountability have still not been delivered - the Detainee Inquiry, which did not meet human rights standards[28], had to be aborted pending criminal investigations that ultimately led to no charges and the ongoing Intelligence and Security Committee inquiry lacks sufficient independence to discharge the UK's international legal obligations.[29]   

Guarding against removals of refused asylum seekers to a "real risk" of torture by ensuring that the Home Office properly reflects evidence of torture in its country asylum policies. This is a longstanding problem, for example in relation to the Home Office's guidance on Sri Lanka which fails to reflect Freedom from Torture evidence of the risk facing certain categories of Tamils returning, whether forcibly or voluntarily, from the UK.[30]

[1] Article 29. This was cited by the Supreme Court in a recent landmark judgment affirming that the foreign act of state doctrine did not bar the appellants' civil law claims relating to UK involvement in torture committed abroad by foreign authorities: Belhaj and another v Straw and others and Rahmatullah (No 1) v Ministry of Defence and another [2017] UKSC 3 at 98 per Lord Mance.

[2]  Torture was prohibited in Scotland by an Act of the Westminster Parliament in 1708, one year after the United Kingdom was established.

[3] Jesse Norman and Peter Oborne, Churchill's Legacy: The Conservative Case for the Human Rights Act (London: Liberty, 2009) 33.

[4] Theresa May MP, speech to the Conservative Party conference 2015, available at http://press.conservatives.com/post/130940020830/theresa-may-speech-a-beacon-of-hope.

[5] The Conservative Party, Protecting Human Rights in the UK - The Conservatives' Proposals for Changing Britain's Human Rights Laws (2014) 6. 

[6] Rt Hon Damian Green MP, 'Refinement, not redefinition - What should be in the British Bill of Rights?' in Ryan Shorthouse and James Dobson (eds), Conservatism and human rights - An essay collection (London: Bright Blue, 2016) 57-60 at 59.

[7] The UK put this argument to the European Court of Human Rights via an intervention in the case of Saadi v Italy (Application No. 37201/06) but it was expressly rejected by the Grand Chamber which affirmed the absolute nature of the torture ban.

[8] Norman and Oborne, op cit., 11.

[9] For example, this could affect Sri Lankan torture survivors in treatment at Freedom from Torture who joined or were forcibly conscripted to the Liberation Tigers of Tamil Eelam (LTTE) and who were involved in combat-related activities such as digging bunkers or transporting the wounded, or in intelligence gathering or fundraising.

[10] See above.

[11] Article 3 of the UN Convention Against Torture, which was inspired by jurisprudence of the European Court of Human Rights, provides that 'No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.' No exceptions are admitted, whether on national security or other grounds. The absolute nature of the ban on removals to a risk of torture has also been affirmed repeatedly by the UN Human Rights Committee interpreting Article 7 of the International Covenant on Civil and Political Rights.

[12] The Conservative Party, op cit., 7. 

[13] A useful case law summary is available at European Court of Human Rights, “Extra-territorial jurisdiction of States Parties to the European Convention on Human Rights” (February 2016) available at http://www.echr.coe.int/Documents/FS_Extra-territorial_jurisdiction_ENG.pdf

[14] See James Dobson’s summary for Bright Blue, “Derogation and the armed forces” (October 2016) available at https://humanrights.brightblue.org.uk/blog-1/2016/10/10/derogation-and-the-armed-forces.

[15] Article 15(2) ECHR.

[16] John McCain, “Bin Laden’s death and the debate over torture”, The Washington Post, 11 May 2011, available at https://www.washingtonpost.com/opinions/bin-ladens-death-and-the-debate-over-torture/2011/05/11/AFd1mdsG_story.html?hpid=z2&utm_term=.2c5e93588d67

[17] See for example, Ministry of Defence and the Rt Hon Sir Michael Fallon MP, ‘Government to protect armed forces from persistent legal claims in future overseas operations’ (4 October 2016) available at https://www.gov.uk/government/news/government-to-protect-armed-forces-from-persistent-legal-claims-in-future-overseas-operations.

[18] Smith and others v Ministry of Defence [2013] UKSC 41.

[19] https://www.amnesty.org/en/latest/research/2016/02/annual-report-201516/

[20] Examples of our research publications are available at https://www.freedomfromtorture.org/fft-reports.

[21] Freedom from Torture, Rape as Torture in the DRC: Sexual Violence Beyond the Conflict Zone (2014) available at https://www.freedomfromtorture.org/feature/drc_report/7878.

[22] Foreign and Commonwealth Office, Human Rights and Democracy: The 2014 Foreign and Commonwealth Office Report (2015), 134 available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/415910/AHRR_2014_Final_to_TSO.pdf.

[23] Richard Carver and Lisa Handley (eds), Does Torture Prevention Work? (Liverpool: Liverpool University Press, 2016). A summary is available on the APT website at http://www.apt.ch/en/research-project/

[24] See for example Foreign Affairs Committee, The FCO's administration and funding of its human rights work overseas, Fourth Report of Session 2015-16, HC 860, 7.

[25] Washington Post, "Trump says 'torture works', backs waterboarding and 'much worse' (17 February 2016), https://www.washingtonpost.com/politics/trump-says-torture-works-backs-waterboarding-and-much-worse/2016/02/17/4c9277be-d59c-11e5-b195-2e29a4e13425_story.html?utm_term=.ccb848662494.

[26] Consider, for example, the way in which Kenyan President Uhuru Kenyatta invoked David Cameron's plans to reassert the sovereignty of the UK Parliament over judgments of the European Court of Human Rights, and perhaps to withdraw from the ECHR altogether, when attacking the International Criminal Court for undermining national sovereignty. See UK Human Rights Blog, "Kenyan President uses Tory human rights plans to defend war crime charges" (24 October 2014), https:/ukhumanrightsblog.com/2014/10/24/kenyan-president-uses-tory-human-rights-plans-to-defend-war-crimes-charges/

[27] David Cameron's statement is available at https://www.gov.uk/government/speeches/statement-on-detainees.

[28] Freedom from Torture, "Human rights groups and lawyers withdraw from flawed torture inquiry" (4 August 2011), https://www.freedomfromtorture.org/news-blogs/5395.

[29] Freedom from Torture, "Pressure grows on PM to hold judge-led inquiry into Britain's role in CIA torture" (22 December 2014), https://www.freedomfromtorture.org/news-blogs/9028.

[30] The deficiencies relating to torture risk assessment of the Home Office's country policy on Sri Lanka have been criticised by both the Foreign Affairs Committee and the Home Affairs Committee. See for example, Foreign Affairs Committee, The FCO's human rights work in 2012, Fourth report of session 2013-14, HC 267, 7.