The Detainee Inquiry, headed by Rt. Hon. Sir Peter Gibson, was supposed to have investigated the allegations of complicity in torture and "extraordinary rendition", by the British government, especially its secret intelligence agencies.
However the Detainee Inquiry has been shut down before it even got started formally, even after 18 months delay, supposedly because of the suspiciously lengthy and ineffective Metropolitan Police Service and Crown Prosecution Service investigations into old allegations and the effect of the "smoking gun" documentary evidence discovered in Libya last autumn.
In order to probe exactly how potential witnesses and whistleblowers to the Detainee Inquiry might be protected from vengeful secret bureaucrats, Spy Blog requested, under the Freedom of Information Act 2000, the full, detailed text of the latest draft(s) (or the final version) of the promised undertakings from the Attorney General and the Cabinet Secretary and the heads of the intelligence services.
Attorney General's Office disclosure
Download the original (.pdf) letter from Spy Blog
Text of the letter:
Attorney General's Office
20 Victoria Street
020 7271 2412
Solicitor to the Detainee Inquiry
35 Great Smith Street
London SW1A 3BQ
3rd November 2011
Dear Solicitor, [handwritten]
UNDERTAKING AS TO THE USE OF EVIDENCE
The Attorney General, in consultation with the Director of Public Prosecutions, has agreed to provide an undertaking to witnesses to the Inquiry as to the use that may be made by prosecuting authorities of the evidence they give to the Inquiry.
The Attorney General has agreed to provide the following undertaking:
This is an undertaking in respect of any person who provides evidence to the Inquiry
'Evidence' includes oral evidence, any written statement made by that person preparatory to giving evidence to the Inquiry or during the course of his or her testimony to the Inquiry, and any document or information produced to the Inquiry solely by that person.
No evidence a person may give before the Inquiry, nor any evidence as defined above, will be used against that person in any criminal proceedings, save that this undertaking does not apply to:
a. prosecution for any offence arising from the provision, by that witness, of false evidence to this Inquiry, or for any offence arising from the witness'
involvement in having conspired with or procured others to give false evidence; or
b. Any witness who gives evidence in relation to matters occurring after a relevant period of detention or alleged rendition, who shall only be protected by this undertaking to the extent that those matters are themselves relevant to treatment during the period of detention or alleged rendition.
It Is further undertaken that in any criminal proceedings against any person who provides evidence to the Inquiry in relation to a matter within its terms of reference, no reliance will be placed on evidence which is obtained during an investigation as a result of the provision by that person of such evidence to the Inquiry.
This undertaking does not preclude the use of information and/or evidence identified independently of the evidence provided by that person to the Inquiry."
The Attorney General is content that you publish this undertaking in any form you consider appropriate.
The Detainee Inquiry is not a Tribunal or Court of Law (despite being chaired by a retired senior Judge) and it was not set up as an inquiry under the Inquiries Act 2005 and so it has no legal power to compel any witnesses to give evidence,
How can it can enforce any prosecutions for giving, or conspiring to give it any "false evidence", which the Attorney General's undertaking explicitly does not give immunity for ?.
Despite receiving this letter last November, the Detainee Inquiry has not published it on their website: http://www.detaineeinquiry.org.uk
Cabinet Office disclosure
The Cabinet Office has disclosed this letter from the (now retired) Cabinet Secretary, head of the civil service the recently enobled Lord Gus O'Donnell:
The Cabinet Office have provided a bit of background information:
To provide some context, this letter was sent by the Cabinet Secretary in contemplation of the formal launch of the Detainee Inquiry. Since that inquiry (chaired by Sir Peter Gibson) is now in the process of being wound up, and will not hear oral evidence, the undertakings in this letter will not now have any practical effect. Similar undertakings may, however, be provided for any future inquiry which may take place, following the conclusion of ongoing
police investigations (see the Lord Chancellor's statement to Parliament on 18 January 2012 which you referenced in your request).
The Cabinet Secretary's letter says (para 2, first bullet), "the Attorney General has provided an undertaking...". That statement was not strictly accurate. The Inquiry would have requested the Attorney General's undertaking only at the time of its formal launch.
It is sad to see the use of the Section 23: Information Supplied by, or Related to, Bodies Dealing with Security Matters exemption.
There cannot be any national security risk in disclosing memos which probably just quote the Cabinet Secretary's letter and agree to abide by the "overarching principles" which it sets out - these are not the "detailed guidance for staff called as witnesses".
As expected by Spy Blog, the Cabinet Office letter and "overarching principles" seem suitable for protecting witnesses who are current or former intelligence agency staff members who espouse the official line e.g. by treating evidence given within the Terms of Reference of the Detainee Inquiry, as having been given "lawful authority" for the purposes of the Official Secrets Act 1989 section 7 Authorised disclosures
However the letter does not really provide the necessary guarantees for any whistleblowers who might contradict their current or former bosses.
Neither is it clear what whistleblower guarantees the vast array of private military contractors, defence industry suppliers and sub-contractors etc. who are not civil servants, but who will fear that their security clearances and government contracts could be at risk if they make allegations, or provide evidence which contradicts the official intelligence agency briefing positions, which those agencies might have provided to the Detainee Inquiry or which they might do so to a future inquiry.
As regards undertakings by the heads of the intelligence agencies, I neither confirm nor deny whether the relevant information is held by the Cabinet Office, with reference to the provision at section 23(5) of the Act. Section 23 is absolute and does not require that the balance of public interest is considered.
Download the disclosed (.pdf) document from Spy Blog:
The text of Sir Gus O'Donnell's letter:
Telephone 020 7276 0101
Sir Gus O'Donnell GCB
Cabinet Secretary and
Head of the Civil Service
21 November 2011
DETAINEE INQUIRY: UNDERTAKING TO GOVERNMENT WITNESSES
As the Prime Minister made clear in his public letter of 6 July 2010 to Sir Peter Gibson (copy attached), staff in departments and agencies are expected to co-operate fully with the Detainee Inquiry, including any requests to give written and oral evidence to it. A formal launch date for the Inquiry has yet to be set, pending the outcome of the related police investigations, but as you know the Government is keen for it to be able to start work as soon as it is possible to do so.
2. I attach great importance to Crown servants engaging with the Inquiry, if asked, in a full and frank way. As Heads of the departments and agencies most likely to receive formal requests from the Inquiry for staff to give evidence, I would ask you to impress on any of your staff called to give evidence the importance of their doing so and potential value of their contribution. It would also be helpful if you could set out the following overarching principles:
• the Attorney General has provided an undertaking that no evidence a person may give before the Inquiry will be used against that person in any criminal proceedings, although this will not apply to prosecution for any offence arising from the provision by a witness of false evidence to the Inquiry or for any offence arising from a witness' involvement in having conspired with or procured others to give false evidence;
• evidence which a person gives to the Inquiry could involve disclosure of information or documents protected under the Official Secrets Acts (OSA). Provided that disclosures concern information relevant to the Inquiry's Terms of Reference and, as regards oral evidence, are made in accordance with advice on whether information can be dealt with in public or private, such disclosures will be regarded as having "lawful authority" for the purposes of the OSA;
• nothing which an employee provides to the Inquiry by way of evidence, whether orally or in writing, will result or be used in subsequent disciplinary proceedings against that employee except where the conduct to which the evidence relates amounts to gross misconduct, or where it is assessed by the employee's home department or agency that he/she has deliberately misled the Inquiry;
• as regards civil proceedings, in line with normal practice the government will provide legal advice and representation where a serving or former official faces civil legal action as a result of actions carried out in the course of their government employment, provided it is satisfied that they were not acting outside the scope of their employment.
3. It will, of course, be important to ensure that these principles are applied consistently for all staff invited to give evidence to the Inquiry. Cabinet Office officials will be working with yours to develop detailed guidance for staff called as witnesses, incorporating these principles.
I am copying this letter to PUS/MoJ, the Treasury Solicitor, Sir Peter Ricketts, Oliver Robbins and Dominic Wilson.
PUS/MoJ = Sir Suma Chakrabarti, KCB, Permanent Under Secretary at the Ministry of Justice
Oliver Robbins is Deputy National Security Adviser, Intelligence Security and Resilience under Sir Peter Ricketts, sitting on the National Security Council.
Dominic Wilson is the Director, Strategy and Resources, at the Ministry of Defence.
What exactly constitutes "gross misconduct" by a "serving or former official" of the intelligence agencies ?
Even actual personal participation in torture or murder is "not acting outside the scope of their employment" provided that it happens outside of the British Isles and has been signed off by a Ministerial Authorisation under the Intelligence Services Act 1994 section 7 Authorisation of acts outside the British Islands..