Earlier this month the The Guardian reported that Reprieve has sent a formal pre-action protocol letter to the Foreign Secretary challenging “a pattern of authorisations” granting legal protection to British spies for otherwise unlawful acts done outside the British Islands. The allegation is that authorisations are being given despite the risk of torture, inhuman or degrading treatment. This blog gives some initial thought to the issues.

The last two months have not been kind to those responsible for the public relations of the Secret Intelligence Service (the “SIS”) and the Government Communications Headquarters (“GCHQ”). On 28 June 2018, the Intelligence and Security Committee of Parliament (the “ISCP”) published a report in two parts ‘Detainee Mistreatment and Rendition: 2001-2010’ and ‘Detainee Mistreatment and Rendition: Current Issues’. The report contained some stark findings about past actions and certain practices, and also caustically observed that, in the absence of important witness evidence, which had been withheld, [a]ny conclusions drawn are necessarily provisional”. Reaction to the report was strong and included the revival of earlier calls for a judge-led inquiry with powers to draw out the full picture, and a clamour for the revisiting of the government’s July 2010 ‘Consolidated Guidance’ on the detention and interviewing of detainees overseas and on related intelligence. The tumult was such that the government has reportedly been compelled to reverse course on its initial position that a “light touch” review of the Consolidated Guidance would suffice and, in August 2018, the Investigatory Powers Commissioner’s Office instead launched a public consultation. Now pressure is again mounting on the government after it missed its own deadline for announcing whether a judge-led inquiry will proceed.

It is in this context that Reprieve is now threatening judicial review.

What is the challenge about?

Reprieve’s threatened judicial review challenge reportedly concerns the Foreign Secretary’s use of section 7 of the Intelligence Services Act 1994 (“Section 7”). Section 7 empowers the Secretary of State (or in urgent cases a senior official) personally to give an authorisation to the effect that a person who would otherwise be liable under UK criminal or civil law for “any act” done outside the British Islands “shall not be so liable”. The Guardian calls this “a legal amnesty for spies to commit abroad what would otherwise be crimes”.

Reprieve is reportedly arguing that Section 7 has been misused because “a pattern of authorisations” has been given despite the risk of torture, inhuman or degrading treatment. This is said to be unlawful because it breaches the European Convention on Human Rights (“ECHR”), and potentially other treaties. It is reported that Reprieve goes as far as to allege that Section 7 is being used to grant “the modern equivalent of torture warrants” that were granted centuries ago specifically to authorise the interrogation of suspects under torture.

How is a Section 7 authorisation given?

A Section 7 authorisation may “relate to a particular act or acts, to acts of a description specified in the authorisation or to acts undertaken in the course of an operation so specified”. Before making such an authorisation, the Secretary of State must first be satisfied that it relates to acts or an operation that are necessary for the proper discharge of functions of the SIS or GCHQ. For the SIS, those functions are defined in section 1 of the Intelligence Services Act 1994 as follows:

(a) to obtain and provide information relating to the actions or intentions of persons outside the British Islands; and

(b) to perform other tasks relating to the actions or intentions of such persons.

The functions of the SIS are exercisable only:

(a) in the interests of national security, with particular reference to the defence and foreign policies of Her Majesty’s Government in the United Kingdom; or

(b) in the interests of the economic well-being of the United Kingdom; or

(c) in support of the prevention or detection of serious crime.”

Similar provisions exist with some variation in section 3 of the Intelligence Services Act 1994 in relation to acts and operations involving GCHQ. There are then more safeguards under Section 7, further restricting the scope to give a section 7 authorisation. In particular, the Secretary of State (or senior official) must also be satisfied that:

(b) there are satisfactory arrangements in force to secure –

(i) that nothing will be done in reliance on the authorisation beyond what is necessary for the proper discharge of a function of [the SIS]; and

(ii) that, in so far as any acts may be done in reliance on the authorisation, their nature and likely consequences will be reasonable, having regard to the purposes for which they are carried out.”

Finally for present purposes, unless special provisions for urgent cases apply, a Section 7 authorisation shall cease to have effect after six months or be cancelled earlier if “no longer necessary”.

First thoughts on human rights claim

Article 3 EHCR

Article 3 of the ECHR states without qualification that [n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”. As a signatory of the ECHR the UK is bound by Article 1 to “secure” the Article 3 absolute right “to everyone within [its] jurisdiction”. The ECHR concept of jurisdiction is essentially territorial, covering the UK, although ECHR rights have been extended to territories outside the UK for whose foreign policy the UK is responsible. I return to the question of ECHR jurisdiction below. Violations of the ECHR are enforceable before the European Court of Human Rights in Strasbourg but this is a notoriously slow process and adequate/effective domestic remedies must be exhausted first.

In the UK, ECHR rights are incorporated into domestic law by the Human Rights Act 1998 (“HRA”). By section 6 HRA, [i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right”. That includes Article 3 ECHR, and would apply to the exercise in the UK of the Section 7 power by the Secretary of State (or senior official). In addition, under section 3 HRA, [s]o far as it is possible to do so, primary legislation…must be read and given effect in a way which is compatible with the Convention rights”. That would apply to the interpretation of Section 7 by a court and would mean it must be read compatibly with Article 3. I return to questions of ECHR compatibility and section 3 HRA below. Breaches of the HRA are enforceable before the domestic UK courts.

Whether Section 7 is capable of authorising torture

Reprieve’s essential human rights argument may be that Section 7 is either incompatible with Article 3 ECHR per se or, more likely, must be read down in light of section 3 HRA so the Secretary of State (or a senior official) cannot give a valid authorisation if the action for which a spy “shall not be so liable” includes a breach of Article 3. Incompatibility is likely to be a stretch, because Section 7 can clearly be used for many purposes that do not involve torture. It also has numerous safeguards built into it. The giver of the authorisation must be convinced arrangements exist to ensure that nothing will be done in reliance on the Section 7 authorisation “beyond what is necessary for the proper discharge of a function” and that the “nature and likely consequences [of the action] will be reasonable”. The whole thrust of the legislation, including the fact the Secretary of State (or exceptionally a senior official) must, unusually, give the authorisation under their own hand, is to promote responsible action rather than infringe human rights. That strongly suggests there is no essential incompatibility between section 7 and ECHR rights such that the regime as a whole (as opposed to individual rogue applications of it) is non-compliant with the ECHR. Indeed, it is difficult to imagine the UK government even arguing that torture, inhuman or degrading treatment or punishment can be “necessary”, let alone “reasonable” actions capable of being authorised under Section 7. A stronger argument is likely to be that Section 7 must be read down in light of section 3 HRA. Article 3 is absolute and does not engage questions of necessity and proportionality. It would therefore appear that the Section 7 power is simply incapable of authorising behaviour that would amount to torture or to inhuman or degrading treatment or punishment.

The ISCP reports make reference to Section 7, and it is possible that Reprieve may find enough in them to obtain a declaration from the court in the abstract that the scope of the Section 7 power does not extend to authorising torture, inhuman or degrading treatment or punishment. It may be enough to show that a Section 7 authorisation is used “routinely, in parallel” with referring a Consolidated Guidance case to ministers, as stated at page 72 of the second report. Such notification cases are described at page 6 of the Consolidated Guidance as triggered by the seriousness of the risk of torture taking place. A declaration would be politically valuable to Reprieve although it would in a sense be confirming the obvious. The second report seems to support that conclusion, containing the following two quotations to the effect that Section 7 cannot be used for such purposes (at pages 73 and 77):

If you were to refer explicitly to section 7 authorisations in the Consolidated Guidance, it would raise the misguided understanding that section 7 authorises SIS to carry out CIDT and torture.”

JJ. The Guidance is insufficiently clear as to the role of Ministers, and what – in broad terms – can and cannot be authorised. For example, the Guidance should specifically refer to the prohibition on torture enshrined in domestic and international law to make it clear that Ministers cannot lawfully authorise actions which they know or believe would result in torture.”

The current Consolidated Guidance, moreover, also seems strongly to support the same conclusion, stating at paragraphs 6 and 7 that:

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 of CIDT.”

[…]

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…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.”

It is possible, however, that any declaration granted to Reprieve might help it to raise questions about the viability of the arguably slightly more equivocal next sentence of paragraph 7, which is: [i]n 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 circumstances and facts of each case…”

Going further, if Reprieve can actually demonstrate that Section 7 authorisations have been given so as to permit spies to participate in torture, inhuman or degrading treatment or punishment, on the basis given above it is likely that a court presented with that evidence would quash the authorisations as unlawful and rule that such actions are outside the Section 7 power. It might well do so without reference to ECHR rights. This would be on the basis that other grounds of judicial review can achieve the same outcome. Such authorisations may be held to be unlawful because they are, as a matter of statutory interpretation (a) incompatible with the legislative scheme; or (b) ultra vires and procedurally unfair for failure to comply with the compulsory legislative safeguards mentioned above. They may even be irrational. That conclusion might be supported by the fact that the abhorrence of such acts runs so very deep in the UK legal system. As Tom Bingham noted in ‘The Rule of Law’ (2010): “at a very early date, not later than the fifteenth century, the common law of England…adamantly set its face against the use of torture”.

Other grounds of JR rather than human rights?

There may even be advantages to Reprieve in relying on other grounds of judicial review rather than the HRA. First, Reprieve is more likely to get ‘standing’ to bring a challenge under the “sufficient interest” test for judicial review. To bring a claim on human rights grounds, a claimant must demonstrate that they are a “victim” of the unlawful act – in this case of the violation of Article 3. It is less straightforward for NGOs acting in the public interest to qualify as victims than demonstrate a sufficient interest, so a representative claimant may need to be found if Reprieve is to pursue an Article 3 based claim.

Second, any breach of Article 3 by a UK spy in connection with rendition may well have occurred outside the UK and associated territories. If so, there may be arguments around whether Article 3 protection applies. The jurisdictional limits on the application of the ECHR in the context of Section 7 were in fact discussed, as an aside, at paragraphs [48] to [53] of the judgment in Privacy International v Secretary State for Foreign and Commonwealth Affairs [2016] Info TLR 71 and it was accepted by counsel for Privacy International, as noted at [52], that:

…in most cases where someone who is the subject of an authorisation granted under section 7 is abroad, it was difficult to argue that such a person is within the territorial scope of the Convention, and in any event that there would be a ‘very limited number of circumstances’ in which there as going to be a breach of the Convention (Day 2/25).”

If it is to make progress, Reprieve may have to rely on an exception to the ECHR concept of territoriality, for example by establishing that the UK was exercising control through its agents over persons or property overseas or had “effective control” of a defined area outside its ordinary territory where the Article 3 breach occurred (Al Skeini v UK (2011) 53 EHRR 18). By contrast, if a Section 7 authorisation was given in the UK and argued to be unlawful as a matter of statutory interpretation or rationality, no such issue would arise.

Finally, the evidence required to question the lawfulness of a Section 7 authorisation on grounds of statutory construction may be easier for Reprieve to marshal than evidence demonstrating an actual Article 3 violation. By definition, rendition is a secretive matter with little accessible paper trail. That said, Reprieve does at least have the ISCP report to work with, and may be able to obtain further material through the litigation process.

Political value

Whether or not Reprieve can succeed in its judicial review challenge will probably depend above all on the persuasiveness of its evidence of a link between Section 7 and torture, inhuman or degrading treatment or punishment. The political impact of taking legal action may, however, be just as important. Whilst highlighting an important legal issue, Reprieve is doubtless well aware that bringing a challenge at such a politically sensitive time might also tip the scales on finely balanced decisions currently being taken in Whitehall.