MoUs against torture: Worth the paper they're written on?

In 2013, Theresa May, then home secretary, instigated the review of terrorist legislation and the deportation with assurances scheme (DWA) by David Anderson QC and Professor Clive Walker. It seems, from the interviews they are giving, that the DWA scheme has been completely ineffective.

The headlines that have been grabbed are about terrorists using human rights to avoid deportation. Sadly, the story is not so simple; it’s about the failure of the government to realise the realities of foreign policy and the limitations of the law in protecting individuals.

The DWA is a policy devised to allow the deportation of foreign nationals to states that have questionable human rights records. Where there are concerns about the treatment of deportees the government asks for an assurance or memoranda of understanding (MoU) that the state will comply with human rights. The UK currently has bilateral agreements in place with Morocco, Lebanon, Jordan, and Ethiopia, and an exchange of letters providing assurances with Algeria. A 2005 MoU made with the Gaddafi regime in Libya was discontinued in 2011.

It is hardly surprising that the scheme doesn’t work given the reality of the situation. The states that make MoUs with the UK have not one iota of respect for the liberty of the individual, let alone their rights. It is axiomatic to the DWA scheme that the UK government believes there is a real risk of substantial ill treatment and torture for deportees and so it seeks an MoU to try to paper over the cracks.

The word ‘torture’ is not always put into context. It almost seems taboo in the law to discuss what torture really is and describe the horror of the reality. From my own practice, I have had clients detail what torture actually means: being kept awake for days during interrogation; threatening to harm family members; being suspended from the ceiling and beaten; electrodes attached to hands and genitals; and in the case of female detainees, sexual assault and rape.

It is in that context that the DWA tries to bend reality by making states promise to behave and not torture deportees. Maybe they make the promises sincerely, maybe they don’t, but the reality is that when the likes of Algeria swear they will not torture a deportee it is a promise they either cannot or do not want to keep. Merely reciting ‘see no torture, hear no torture, speak no torture’ does not prevent it happening. This position is confirmed by the government itself.

In the case of W and others in 2016 the British government cables stated: ‘In an Algeria [sic] context, there was never a realistic prospect of being able to monitor the whereabouts and well-being of the DWA deportees.’ So, in that context, it was just a promise, one that could not be verified or monitored, so if it was broken, no one would ever find out.

The most famous use of the DWA scheme, Abu Qatada, was a Muslim cleric accused of terrorist offences in Jordan. The UK does not have an extradition treaty with Jordan, so, considering him a threat to national security, the government used the deportation process to remove him from the UK.

The problem was that the evidence against Qatada had been tortured out of co-defendants and others. So, Jordan signed an MoU promising not to torture him and not to use the evidence obtained by torture in any trial. The European Court of Human Rights believed that, given the high international profile of the case, Jordan would not torture Qatada. However, it did not believe Jordan would keep its promise on the use of evidence. The UK could have appealed that judgment but the Home Office missed the deadline for the appeal. He was eventually returned voluntarily and acquitted at trial. The case is still used to blame the Strasbourg court for his victory and as a stick to beat down human rights.

It is difficult to see a way of complying with human rights and deporting those accused of terrorism. The answer might lie in better use of international evidence against those accused in order for them to face trial in UK courts. The problem will come if the evidence comes, for instance, from Jordan where it may well have been obtained by torture, creating a catch-22 of legal problems. But what is the point of being anti-torture if there is one rule for the UK and one for deportees. Removing the Human Rights Act is not the answer.

Ben Keith is a barrister at 5 St Andrew’s Hill specialising in extradition law

@5SAHLaw www.5sah.co.uk