The Equality and Human Rights Commission v The Prime Minister The Secretary of State for Foreign and Commonwealth Affairs and Others (Interested Party)
|England & Wales
|03 October 2011
| EWHC 2401 (Admin)
|03 October 2011
|Queen's Bench Division (Administrative Court)
|Case No: CO/10455/2010 AND CO/10200/2010
 EWHC 2401 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Anthony may President of the Queen's Bench Division
Mr Justice Keith
Case No: CO/10455/2010 AND CO/10200/2010
Ben Emmerson QC, Philippe Sands QC and Dan Squires (instructed by EHRC) for the Claimant
James Eadie QC, David Perry QC, James Strachan and Sam Wordsworth (instructed by Treasury Solicitors) for the Defendants and Interested Party
Rabinder Singh QC and Iain Steele (instructed by Public Interest Lawyers) for the Claimant
David Perry QC, James Eadie QC, James Strachan and Sam Wordsworth (instructed by Treasury Solicitors) for the Defendants
Hearing dates: 28–30 th June 2011
Sir Anthony May, President of the Queen's Bench Division:
This is the judgment of the Court.
On 6 th July 2010, the Prime Minister announced in Parliament his intention to establish an independent inquiry about the degree to which British intelligence officers working with foreign security services may have been implicated in the improper treatment of detainees held by other countries in the aftermath of the events of 11 th September 2001. Also on 6 th July 2010, the Prime Minister wrote to the Rt. Hon. Sir Peter Gibson thanking him for agreeing to lead an independent inquiry into United Kingdom involvement with detainees in overseas counter-terrorism operations. The purpose of the inquiry was that which the Prime Minister had described in Parliament.
At the same time, the Government published a document entitled Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. We understand that a document of this kind had previously been in existence, which had not been made public. The published document was issued by the Cabinet Office. It was accompanied by a Note of Additional Information from the three Secretaries of State who, with the Prime Minister and in one case the Attorney General, are defendants to these proceedings. We shall refer to the defendants as "the Government".
In these joined judicial review proceedings, the Equality and Human Rights Commission ("the Commission") and Mr Al Bazzouni as claimants each contend that in particular respects the published document is expressed in terms which are unlawful such that, if those to whom it is addressed were to act in compliance with its instructions, they could act unlawfully. The Commission initially advanced a number of contentions, but Mr Emmerson QC on their behalf confined the Commission's case at the hearing before us to the single question whether certain guidance in the document relating to torture and cruel, inhuman and degrading treatment was expressed in terms which were wider than the law would permit. He did not pursue other objections, recognising to that extent the force of the Government's submission that the court could not properly determine these matters in the abstract without the facts of one or more real cases to concentrate the inquiry. That submission is to an extent maintained for the issue which Mr Emmerson did pursue. Mr Al Bazzouni challenges the lawfulness, in the sense we have described, of one reference in the document to hooding of detainees.
On 21 st December 2010, Ouseley J ordered that the claimants' respective applications for permission to bring their claims should be listed together, with substantive hearings to follow if permission is granted. He so ordered to preserve the Government's opportunity to argue that permission should be refused upon preliminary objections (a) that the claims raised academic questions which the court should not entertain and, optimistically, (b) that the claimants do not have sufficient standing.
On standing, the parties have covered much paper with their rival contentions. As to the Commission, it is a public body established by section 1 of the Equality Act 2006. By section 3, it is to exercise its functions with a view to encouraging and supporting the development of a society in which there is, among other things, respect for and protection of each individual's human rights. By section 30, the Commission has the capacity to institute judicial review proceedings relevant to a matter in connection with which it has a function; and may rely on section 7(1)(b) of the Human Rights Act 1998 (breach of Convention rights), but need not be a victim or potential victim of the unlawful act. That, in our judgment, is quite sufficient for the purpose of the Commission's standing in these proceedings. As to Mr Al Bazzouni, we are told that he is one of a number of people who allege that they were subjected to hooding by UK forces in Iraq. Although the challenge to the Guidance in these proceedings in its reference to hooding may well not postulate factual possibilities identical with those which Mr Al Bazzouni claims to have been subjected to, he is nevertheless, in our judgment, sufficiently representative of those who might have standing to bring his claim. Mr Eadie QC and Mr Perry QC, on behalf of the Government, did not strenuously argue otherwise at the hearing. In our view, is not comparable.
Paragraph 1 of the Guidance provides:
"This consolidated guidance sets out the principles, consistent with UK domestic law and international law obligations, which govern the interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees. This guidance must be adhered to by officers of the UK's intelligence and security agencies, members of the UK's Armed Forces and employees of the Ministry of Defence ('personnel'). Personnel whose actions are consistent with this guidance have good reason to be confident that they will not risk personal liability in the future."
Mr Emmerson emphasises that the Guidance is directory; that it proclaims that it is consistent with United Kingdom domestic law and international law so that those who act in accordance with it will not risk personal liability. He submits that if it is not consistent with the relevant law, this advice will not be correct so that the Guidance should be changed.
Paragraph 2 of the Guidance recognises a practical difference between the security and intelligence agencies ("the Agencies") and the UK Armed Forces, who, unlike the Agencies, may have a power to detain individuals in overseas operations. This is of some significance to the argument, since, for the Armed Forces, there is a Joint Doctrine Publication 1–10 concerning Prisoners of War, Internees and Detainees promulgated under the direction of the Chiefs of Staff. Nevertheless, the Guidance must also be adhered to by the UK Armed Forces and Ministry of Defence employees so far as it may apply.
Paragraph 3 of the Guidance notes that the Agencies need to work with a range of overseas security and intelligence services ("liaison services"). Paragraph 4 notes that the Ministry of Defence and the UK Armed Forces may also need to work with liaison services. They may need to detain and interview individuals in order to understand threats to Armed Forces Units.
Paragraphs 5 to 7 are under the general heading "Policy regarding torture and cruel, inhuman and degrading treatment or punishment" ("CIDT"). These are, of course, with the omission there of the word "cruel", the matters absolutely prohibited by Article 3 of the European Convention on Human Rights in so far as it might apply. Paragraph 5 of the Guidance states that there is an absolute prohibition of torture in international law and a clear definition of what constitutes torture. There is also an absolute prohibition of CIDT but no agreed or exhaustive definition of what constitutes CIDT. Instances of CIDT could amount to torture if they are, for example, prolonged or coincide with other measures.
Paragraph 6 states that the UK Government's policy is clear. "[We] do not participate in, solicit, encourage or condone the use of torture or cruel, inhuman or degrading treatment or punishment for any purpose. In no circumstance will UK personnel ever take action amounting to torture or CIDT."
Paragraph 7 provides:
"When we work with countries whose practice raises questions about their compliance with international legal obligations, we ensure that our co-operation accords with our own international and domestic obligations. We take great care to assess whether there is a risk that a detainee will be subjected to mistreatment and consider whether it is possible to mitigate any such risk. In circumstances where, despite efforts to mitigate the risk, a serious risk of torture at the hands of a third party remains, our presumption would be that we will not proceed. In the case of cruel, inhuman or degrading treatment or punishment, this will cover a wide spectrum of conduct and different considerations and legal principles may apply depending on the...
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