Why the UK needs a public inquiry into extraordinary rendition
In the light of revelations about scores of incidents when UK security agencies knew that detainees were being mistreated by other agencies the government looks increasingly likely to call a long overdue and vital public inquiry into ‘extraordinary rendition’. ‘Who guards the guardians’ is an age-old question. All of us need to know what our security services do when no-one is able to monitor them.
Ken Clarke MP, the former justice secretary, asked an Urgent Question in the House of Commons on July 2nd, repeating his calls for such an inquiry, to which government minister Alan Duncan confirmed “the Government will give careful consideration to whether a judge-led inquiry is necessary.”[i]
This followed last month’s publication of the three-year investigation of the Intelligence Security Committee (ISC), which found that British agencies continued to supply intelligence to allies despite knowing or suspecting abuse in more than 200 cases. The Committee’s chairman Dominic Grieve MP said agencies knew of incidents that were "plainly unlawful".[ii]
The Security Committee’s report detailed 128 incidents where UK agencies knew of mistreatment of detainees by other intelligence services and highlighted 31 examples where Britain planned, agreed or helped pay for rendition flights.[iii] The report was highly critical of the British Agencies’ involvement, which went far beyond turning a blind eye to abuse of detainees. Indeed two of the report’s conclusions demonstrate direct involvement by the British Agencies in the rendition programme and in mistreatment of detainees:
C. We have found what we consider to constitute evidence of two cases in which UK personnel were directly involved in detainee mistreatment administered by others. This is completely unacceptable. While one case has been investigated by the Metropolitan Police, the other has not been fully investigated. Had our Inquiry continued, we would have sought to interview all those concerned. There must be a question as to whether the Service Police investigation should be reopened.
Z. The Agencies also supported the US rendition programme in other ways: endorsing rendition plans and providing intelligence to enable renditions. They were active in their support for the programme. They also condoned renditions through their conspicuous failure to take action to prevent renditions – in particular of British nationals and residents.
It also has to be noted that the report could and should have investigated further as it notes within the conclusions that “Had we been given access to the interviewing officers, we would have wished to explore this highly unsatisfactory situation further”.
What is extraordinary rendition - and is it lawful?
Extraordinary rendition (in plain English, kidnapping) is the process by which a detainee is transferred from one state to another, outside normal legal processes (such as extradition or deportation). In many cases these detainees are transferred to secret detention centres or to a third country for the purposes of interrogation, and are often then tortured.
Used as a tool by the United States in the ‘War on Terror’, in order to bring people believed to be insurgents or involved in terror groups to ‘black sites’ or extrajudicial areas such as Guantanamo Bay, where ‘enhanced interrogation’ (again in plain English, torture) could be carried out without the detainees benefiting from the protection of US law.
Torture is prohibited in British law. The UK is a signatory to the European Convention on Human Rights, of which Article 3 prohibits torture and ‘inhuman and degrading treatment’. The Human Rights Act 1998, which came into force in 2000, incorporated the ECHR into the UK's domestic law, placing a positive obligation on public bodies, including the security services, to prevent torture from taking place.
“Rendering” (unlawfully removing) any detainee in the UK’s control (or assisting in their rendition by another state) to a jurisdiction where their rights under the European Convention are likely to be violated is itself a violation of the Convention and the Human Rights Act.
Why is a public inquiry being considered?
Extraordinary rendition was practiced by previous governments, but none have been held accountable for that policy.
In 2005, Jack Straw, then Foreign Secretary, said “there simply is no truth” in claims of UK involvement in rendition. But three years later, his successor David Miliband admitted: “I am very sorry indeed to have to report to the House [of Commons] the need to correct those and other statements on the subject.”[i]
Howe & Co Solicitors Public Inquiry team have been calling for a judge-led public inquiry, with the powers of the Inquiries Act 2005, which would be able to compel witnesses such as former government ministers to give evidence about what they knew, and when. David Enright (who is leading Howe & Co’s child abuse public inquiry team) said:
Britain is, at its heart and at its best, a country built upon laws and respect for the rule of law. There is growing evidence that our security service, senior officials and Ministers may have turned a blind eye to kidnapping, unlawful detention and treatment amounting to torture. If that has happened, it fundamentally undermines who we are as a nation and what we are seen to stand for as a nation internationally. The truth about these matters must be pursued, no matter where the search leads.
What is the difference between a statutory inquiry and other inquiries into extraordinary rendition?
There have been a number of inquiries into extraordinary rendition, with the ISC’s report only the latest. A public inquiry called by the government using the Inquiries Act 2005 would have special powers that other investigations have not benefited from.
Under section 21 of the Inquiries Act, the Chair can compel any individual to provide documents or other materials to the inquiry – and then disclose them to participants or use them in public hearings. Failure to comply can result in imprisonment.
In 2016 it emerged that the government were suppressing the publication of 12 documents in the possession of the US State Department; documents that related to extraordinary rendition and were not made available to either the Chilcot Inquiry or the 2007 ISC investigation into rendition.[ii] A public inquiry would have the power, under section 21, to compel disclosure of that evidence from government agencies.
A public inquiry can also compel anyone to appear as a witness, under oath, and give evidence, under rule 9 of the Inquiry Rules 2006, and could allow victims of extraordinary rendition and their families to cross-examine former Government Ministers, under Rule 10.
Dominic Grieve MP, Chair of the Intelligence Security Committee, stated, upon publication of their report last month, that:
“We needed to hear from the officers who were involved at the time. The Government has denied us access to those individuals. The Committee has therefore concluded – reluctantly – that it must draw a line under the Inquiry.”
The conclusion of the Intelligence Security Committee could not be more troubling and this cannot be allowed to go un-investigated.
David Enright (Partner – Howe & Co) said:
Only a public inquiry can uncover the evidence. A judge would have the statutory powers to compel witnesses to give evidence and to compel the production of evidence of what actually happened to the scores of people who were subject to cloak and dagger ‘rendition’. Survivors of rendition and the public at large are entitled to know why these actions were taken or permitted. As Dr Martin Luther King said, injustice anywhere is a threat to justice everywhere.
Crucially, a public inquiry can allow victims or those affected by extraordinary rendition to apply to become ‘Core Participants’, and gain access to evidence, call witnesses, and potentially being able to cross-examine and put questions to those who need to be held accountable.
Howe & Co are currently engaged in representing a very large proportion of the victims and survivors in both the Grenfell Tower Public Inquiry and the Independent Inquiry into Child Sexual Abuse (which is the largest public Inquiry in British legal history). The IICSA is investigation matters including child abuse at the very highest levels of public and political life. Howe & Co has and continues to champion the right of victims and survivors to achieve truth, justice and accountability.
Given the nature of extraordinary rendition, and the involvement of the security services, victims will have to fight even harder and smarter to achieve justice in any public inquiry that is called.
What happens next?
If an inquiry is called, then interested parties will begin making submissions on the Terms of Reference, which will be set by the Government and determine what an inquiry can or cannot look at. Then, people and organisations will have an opportunity to apply, via legal representatives, to become Core Participants and play a role in shaping the inquiry.
A source from within the security services recently told the Financial Times, when asked about rendition:
“We were simply not prepared for the work we became involved in following 9/11. There were deficiencies in capability and understanding and therefore in the guidance and training that we gave to staff. Today, we do things differently.”[iii]
Whether the security services currently behave differently is impossible for the public to know.
Only a public inquiry can tell us what happened, why it happened, who ordered it and allowed it; and whether methods like extraordinary rendition are still in place today.
If you are or know someone who is affected by issues connected to extraordinary rendition, the security services, unlawful detention and torture you can speak to a member of our Public Inquiry team by emailing us at email@example.com or calling our Public Inquiry Team on 0208 840 4688
David Enright JP
Howe & Co
 Detainee Mistreatment and Rendition: 2001–2010