The political row over whether human rights law can be extended to the battlefield will be reopened this week in a supreme court case over the legality of detaining a Taliban suspect in Afghanistan.
Nine justices of the supreme court will on Wednesday consider the case of Serdar Mohammed, who was held for 110 days by British troops in 2010 before being handed over to Afghan authorities for trial.
Mohammed alleges that the Afghan security services tortured him and forced him to thumbprint a document that said he had confessed to being a Taliban fighter. He was freed in 2014 and denies being an insurgent or preparing bombs.
Last year, the court of appeal ruled that Mohammed had been held illegally by British forces and denied access to a lawyer. At the time, the army was part of Isaf, the International Security Assistance Force, whose regulations required that any transfer to Afghan authorities take place within 96 hours.
Giving their judgment, the three senior judges – the lord chief justice, Lord Thomas, Lord Lloyd Jones and Lord Beaston – expressed “significant reservations in respect of the correctness of the decision extending the ECHR [the European convention on human rights] to the battlefield”. But they were bound, they said, by the precedents of previous cases.
Since then, relations between law firms bringing claims on behalf of detained Afghan and Iraqi suspects and the Ministry of Defence have degenerated into open recrimination.
Two of the law firms, Leigh Day and Public Interest Lawyers, have been referred by the government to the Solicitors Regulation Authority over alleged malpractice in handling claims. They deny any wrongdoing.
The prime minister, Theresa May, announced at the Conservative party conference this month that, in future, the government would derogate from the ECHR in future conflicts to prevent an “industry of vexatious claims” against soldiers. The decision was greeted with dismay by civil liberties groups.
The Labour MP Harriet Harman, the chair of parliament’s joint committee on human rights, has written to the defence secretary, Michael Fallon, seeking a full explanation of May’s decision and asking whether it is justified.
In the supreme court case this week, Mohammed is represented by lawyers from Leigh Day. A spokesperson for the firm said: “We are hopeful that the supreme court will recognise the fundamental importance of the rule of law especially in situations of internal armed conflict where instilling law and order is the primary objective of the British forces.”
Responding to the decision last summer, the then defence minister, Penny Mordaunt, said: “The notion that dangerous insurgents cannot be detained for more than a few hours is ludicrous. Our armed forces must be able to detain enemies who attempt to maim and kill UK service personnel and civilians. If the law does not allow that then the law must change.”
In a separate development, human rights groups have expressed alarm over changes to the oversight of regulations outlawing complicity in torture. The investigatory powers bill (IP) will, it is alleged, alter the statutory status of what is formally known as the “consolidated guidance to intelligence officers and service personnel on the detention and interviewing of detainees overseas, and on the passing and receipt of intelligence relating to detainees”.
Under the bill, the position of the intelligence services commissioner, who monitored the “consolidated guidance”, is being abolished. The guidance is not mentioned in the bill.
A spokesman for the human rights group Reprieve said: “It is alarming that the government is watering down oversight of its flagship anti-torture policy. The IP bill unravels measures taken by the previous prime minister to put oversight of UK torture policy on a legal footing. The [outgoing] intelligence services commissioner [Sir Mark Waller] has expressed concern over the absence of any reference to the torture policy – known as the ‘consolidated guidance’ – from the IP bill.
“Along with the government’s U-turn on its pledge to hold an independent, judge-led inquiry into rendition, this move shows that ministers are slipping back on the promises they made to ensure Britain would never again become complicit in torture.”
The issue was raised by the Liberal Democrat peer Lady Hamwee in a debate on the IP bill in the House of Lords last week. Replying for the government, the justice minister Lord Keen said monitoring would continue.
“The government have already made it clear that the new investigatory powers commissioner will bring together the existing responsibilities of the intelligence services commissioner, the interception of communications commissioner and the chief surveillance commissioner,” Keen said.
“That includes oversight of the consolidated guidance on the detention and interviewing of detainees. In addition, the investigatory powers commissioner will have a bigger budget and a dedicated staff of commissioners and inspectors, as well as independent legal advisers, to ensure that the highest levels of independent scrutiny are maintained.”
The supreme court is still due to deliver its long-awaited judgment on the rendition and torture claim of Abdel Hakim Belhaj, and his wife, Fatima Bouchar, which it heard last November.
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