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Last week, the Investigatory Powers Tribunal (IPT) in London conducted a public hearing into allegations that British security and intelligence agencies – the Security Service (MI5), the Secret Intelligence Service (SIS/MI6), and Government Communications Headquarters (GCHQ) – and the Ministry of Defence were complicit in the CIA’s torture and detention programme following the terrorist attacks on 11 September 2001.
The proceedings also involve a closed session, during which the complainants, members of the public, and the press are excluded. The IPT has appointed Counsel to the Tribunal (CTT) to assist the tribunal, to ensure that points of law or other matters that may have been advanced by the complainants are fully considered.
The complaints have been brought by two Guantánamo Bay detainees, Mustafa al‑Hawsawi and Abd al‑Rahim al‑Nashiri, who allege that UK security and intelligence agencies and the Ministry of Defence knowingly contributed to torture by the CIA in black‑site interrogations. The UK agencies have neither confirmed nor denied the allegations.
Led by a senior judge, the tribunal is a unique forum that can adopt an inquisitorial process and has powers to obtain classified information from the security and intelligence agencies. The panel of judges in this case is chaired by Lord Justice Singh, the President of the IPT, together with Lord Boyd of Duncansby, the Vice-President, and Annabel Darlow KC.
The IPT had earlier struck out the parts of the claims grounded in human rights law, having accepted the UK authorities’ position that they fell outside the scope of the UK’s jurisdiction for the purposes of Article 1 of the European Convention on Human Rights (ECHR): see [2023] UKIPTrib 6. This ruling represented a significant development in the interpretation of Article 1 ECHR, a provision that has been relatively rarely considered in domestic courts. It was the first time that the application of Article 1 ECHR was considered in the context of the UK’s alleged involvement with US authorities during the post-9/11 response.
The two cases were however permitted to proceed as complaints on public law grounds, arguing that any intelligence sharing by the agencies with the CIA was ultra vires, motivated by an improper purpose, failed to take into account relevant considerations, and was irrational. This is the first time such an argument, which was heard in open sessions last week, has been run on public law grounds in the UK.
Further details can be read on The Guardian website.
