Until the gaps in the Guidance are addressed, the UK is likely to face criticism of its own torture
prevention credentials when participating in international torture prevention programmes.

MINISTERIAL DISCRETION

6. Amnesty International remains concerned that the Guidance implies unbounded discretion at the
Ministerial level to instruct officials to proceed with action which they know or believe will result in
CIDTP, or in the face of evidence that there is a serious risk that UK action will result in torture.
The Guidance is unclear about whether a situation where personnel conclude that it is “more likely
than not” that torture will occur in connection with their actions, but are not certain, would fall
within the category “If you know or believe torture will take place”, or instead under “all other
circumstances”? (Table, page 6) The Guidance states “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” (Paragraph 7). However, according to the Guidance, where relevant personnel know or
believe that UK action will result in CIDTP, or a risk less than “knowledge or belief” that torture will
take place, Ministers must be informed (Table, page 6).
7. The Guidance offers scant detail on the exercise of Ministerial discretion. Several provisions of the
Guidance ultimately instruct personnel to consult Ministers on how to proceed. The then National
Security Adviser wrote to Amnesty International stating that the Guidance “is not and does not
purport to be guidance to Ministers. It does not seek to regulate the details of how Ministers will
respond in individual cases where consulted.”
8. A statement on pages 3-4 of the “Note of Additional Information” heightens this. The note invokes
the possibility of an “overwhelming imperative for the UK to take action of some sort, e.g. to save
life.” We find it difficult to reconcile this statement and its potential implications, especially given
the breadth of conduct and abuse apparently covered by the discretion to which it refers, with the
earlier acknowledgements that torture and other CIDTP are both absolutely prohibited under
international law. This invocation seems to ignore the repeated rejection by the European Court of
Human Rights each time it has been presented with similar balancing arguments by the UK.1
9. Given the wide range of situations in which decision-making about the appropriate action is
potentially left to the discretion of the relevant Minister, and the fact that the Guidance provides no
detail about the criteria for information which will inform and guide Ministerial decisions, the
Guidance remains potentially permissive of action that could lead to torture or CIDTP.
10. Our concern is not about the appropriateness of delegating decision-making to the Ministerial level.
It is about the lack of disclosure of the criteria that will inform and guide the Minister’s response, in
combination with a failure to rule out conclusively the authorization of action where it is known that
the risk of torture or CIDTP could occur. The then National Security Adviser wrote to Amnesty
International clarifying it was the UK’s “starting” position not to proceed with any action where
there was a serious risk that a detainee would be tortured, but could not “preclude that in
circumstances where the risks of inaction to national security are high,” authorization would not be
given to proceed with action that was in violation of the UK’s human rights obligations. Insofar as
the publication of the Guidance was intended to clarify or reassure the public regarding UK policy
on involvement of its agents in torture and other ill-treatment and compliance with its international
human rights obligations, the Guidance ultimately fails to (a) address how those decisions are made
or (b) offer an unambiguous statement that a breach of international law would not be authorized.

EUR 45/012/2014

2

31 October 2014

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