Terms of Reference and Protocol: Statement by the Panel

The article in The Guardian newspaper on 7 July, ‘Lawyers to boycott torture inquiry as UK rights groups label it a sham’, reported a number of criticisms of The Detainee Inquiry made by some NGOs and some lawyers acting on behalf of former detainees.

As set out in the Terms of Reference, the purpose of the Inquiry is to establish whether, and if so to what extent, the UK Government and its security and intelligence agencies in the aftermath of 9/11 were involved in or aware of improper treatment, or rendition, of detainees held by other countries in counter terrorism operations overseas. It is the actions and knowledge of the UK that the Inquiry is required to ascertain.

The Terms of Reference and Protocol on evidence, which the Prime Minister required the Inquiry to agree with Government, were agreed after lengthy negotiations and published this week. They are designed to ensure that the Inquiry will see and can analyse all the key evidence, speak to all the key personnel involved and report to the Prime Minister within a year, as he has stipulated.

Understandably there have been criticisms about the limited openness that is possible and about who has the final decision on what information can be shared in public. However, the Protocol provides effective procedures designed to enable the NGOs, the detainees and other members of the public to follow the Inquiry and participate in its work.

The Inquiry intends to publish on its website the centrally relevant documents as soon as is practical after the formal launch. Where there are public interest restrictions on such documents, it will seek to publish redacted versions of such documents. The witness statements of witnesses giving evidence in public will be released to the public. In relation to evidence given in private sessions the Inquiry will give careful consideration to publishing a redacted version or gist of that evidence.

The Prime Minister stated that intelligence officers would not give evidence in public. The current heads of the intelligence agencies, however, will give evidence in public session in relation to matters which can be discussed in open hearings and the Government will encourage former heads to do the same.

The Inquiry gives the detainees the opportunity to give evidence of what they have experienced. It would like to have their allegations of the UK’s involvement in their mistreatment so that their complaints can be investigated. The function of the Inquiry is inquisitorial and questions will be asked of witnesses only by Counsel to the Inquiry or by the Inquiry Panel. All who are interested in the work of the Inquiry will be able to feed in questions which Counsel to the Inquiry can put to witnesses.

Where there is dispute between Government and the Inquiry Panel in relation to the public disclosure of material, the Protocol provides for the Panel to call for formal submissions from the Government and for the Panel then to make a decision on the balance of conflicting interests. They will then send their decision to the Cabinet Secretary and he will have the ultimate word on publication. It is important to realise that, even if this Inquiry had been established differently as a statutory inquiry, the ultimate decision on what could be made public would still have rested with Government under the Inquiries Act 2005.

The Inquiry Panel are independent of Government and are determined to be as open as possible, while respecting the national security and other public interest concerns which inevitably arise in an inquiry of this kind. We do not believe that the criticisms which have been reported are justified and we hope that those who are now threatening to boycott the Inquiry will think again.