14
IPCO Annual Report 2018
and the passing and receipt of intelligence relating to detainees’ (The Principles) were
published by the Government on 18 July 2019.4
The Principles
2.24
The IPC’s letter to the Prime Minister of 12 June 20195 sets out the reasons for his
proposals but the key points from the new document are summarised below:
• The need for clarity: the new document is intended to remove any perceived uncertainty
and obscurity, clarifying the core elements of the UK’s policy when applying The Principles
in an operational setting;
• The types of harm covered: The Principles will be expressly engaged when there is a risk
of unlawful killing, extraordinary rendition or rendition occurring in a detention context;6
• Threshold of risk: the threshold of risk for the future is ‘real risk’ rather than ‘serious
risk’. This test is generally applied in equivalent contexts (for example, whether there are
substantial grounds for believing there to be a ‘real risk’ of torture or cruel, inhuman and
degrading treatment (CIDT) or punishment when an individual is faced with extradition);
• Non-state actors or groups: The Principles now explicitly apply when UK personnel might
be working with non-state actors or groups; and
• Error reporting and whistleblowing: the new regime now aligns with other aspects
of oversight by IPCO, since The Principles create a formal error-reporting process for
the agencies, and a formal whistleblowing provision which mirrors the IPC’s statutory
responsibilities under section 237 of the IPA.
2.25
There were some suggestions that were raised during the consultation process that the IPC
did not adopt:
• Scope: it was suggested that The Principles should extend to all cases when information
is shared and there is a real risk that there will be a serious adverse outcome (such as
unlawful killing), regardless of whether this will occur in the context of detention. Given
that the fundamental underpinnings of this guidance has been to protect those who are
in, or are at risk of, detention, the IPC determined that for the purposes of the present
review the current link to detention ought to remain. It will be for the Prime Minister to
decide whether consideration should be given to expanding the present focus;
• The role of Ministers: the majority of non-government respondents argued that the
revised guidance should include an absolute prohibition on Ministers authorising UK
action when there was a real risk of unlawful killing, torture, extraordinary rendition,
or CIDT. The IPC concluded, after extensive consultation, that the actions of Ministers
are already comprehensively governed by two key requirements: Ministers must act in
accordance with domestic and international law and they are bound by the Ministerial
Code. Ministers are accountable to Parliament, and in the view of the IPC it would be
unhelpful to duplicate, or seek to add to, the clear legal and procedural framework which
currently governs ministerial action; and
4
5
6
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/818306/20190718_The_
Principles_relating_to_the_detention_and_interviewing_of_detainees_overseas.pdf
https://ipco.org.uk/docs/20190612%20Letter%20to%20PM%20.pdf
The term “rendition” is most commonly used to cover the extra-judicial transfer of an individual from one jurisdiction or State to
another and “extraordinary rendition” is generally used to refer to rendition when there is a real risk of torture or cruel, inhuman or
degrading treatment.