Ian Cobain - 28 June 2011: A battle over the legality of instructions issued to British intelligence officers attempting to obtain information from prisoners held by countries with poor human rights records has opened in the high court.
The Equalities and Human Rights Commission (EHRC) is arguing that the instructions – which were redrafted and published last year on the orders of David Cameron – fail to meet the UK's obligations in both international and domestic law.
Government lawyers say the instructions ensure that British intelligence officers can maintain their relationships with their counterparts in such countries without falling foul of the law.
Both MI5 and MI6 insist that those relations are vital in the post 9/11 world if they are to fulfil their responsibility to protect UK interests and British citizens.
But the EHRC told the court: "The guidance … is unlawful. It exposes detainees to a risk of torture for which the UK is legally responsible and which might have been prevented had domestic and international law been properly applied."
Ben Emmerson QC, for the EHRC, said the instructions were drafted in such a way that British intelligence officers would be "exposed to criminal liability" if they were to follow them.
Under the terms of the instructions, intelligence officers and military personnel are prohibited from proceeding with an interrogation or intelligence-sharing operation only when they "know or believe" it will lead to torture. In most other circumstances they can proceed after they have sought assurances from the overseas agency, or after receiving permission from a superior officer.
The instructions also set out circumstances in which government ministers will be consulted and can give the go-ahead to an operation, despite the risk that this will result in an individual or group of people being tortured.
The EHRC says the instructions should prohibit any action where there is a "real risk" of torture, and that the words "know or believe" set the threshold too high.
Furthermore, the commission argues that requesting that an individual be detained by an overseas intelligence agency known to use torture could lead to complicity in torture.
"If UK personnel solicit the detention of an individual by a foreign state knowing there is a real risk of torture, and as a direct result of that solicitation that individual is then tortured by foreign state agents, we say that involves the UK in a breach of its international obligations … and involves the commission of a domestic law crime of aiding and abetting an act of torture," Emmerson said.
The court heard that the instructions are issued by the prime minister, the home secretary, the foreign secretary and the defence secretary.
Later in the three-day hearing, the government's lawyers will urge the court not to give its opinion on the current state of international law "in the abstract" without detailed consideration of the facts of an individual case.
When the existence of the instructions first became public knowledge in 2009, it was apparent that they had evolved over the years, having first been issued in January 2002. At that point they were clearly intended to enable to MI5 and MI6 officers to continue questioning al-Qaida and Taliban suspects whom they knew were being physically mistreated by the US military in Afghanistan.
Subsequent versions of the instructions were kept secret. As details of British involvement in the torture of terrorism suspects in Pakistan, Afghanistan, Egypt and elsewhere began to emerge, ministers of the last government became deeply reluctant to discuss their contents. David Miliband, while foreign secretary, indicated that their publication would "offer succour to our enemies".
Tony Blair evaded questions about the role he played in authorising the instructions and has refused to say whether he knew they had resulted in people being tortured; David Blunkett, the former home secretary, once maintained that it was potentially libellous even to ask him questions about the matter.
Two intelligence officers, one from MI5 and one from MI6, have been the subjects of an investigation by Scotland Yard. That inquiry is continuing, with detectives examining whether there is any criminal liability for involvement in interrogation of terror suspects who have been tortured.
Following last year's election the instructions were rewritten, and Cameron said they were being published because the coalition was "determined to resolve the problems of the past" and wished to give "greater clarity about what is and what is not acceptable in the future".
A number of human rights groups immediately pointed to what they said were serious loopholes, however, and the EHRC began judicial review hearings.
The court is also hearing a linked case brought by a man who was detained by British forces in Iraq in 2006 and hooded. His lawyers argue that the rewritten instructions are unlawful because they allow for hooding to be used if "necessary for security reasons during arrest or transit".
The court may not issue its judgment on the new instructions until after the long-running inquiry into the death of Baha Mousa reports in September. The legality of hooding is expected to be addressed in the Mousa report.
The hearing continues.