A debate in the House of Commons saw MPs criticise home secretary Sajid Javid for his decision to hand evidence on two alleged members of the “Beatles” cell to the US, without the normal assurances they would not be executed.
The mother of one of the men is attempting to launch a judicial review into the decision, which her lawyers called “unprecedented and unjustified” in the High Court this week.
Labour MP Chris Bryant accused the government of reversing its position “secretly” after posing an urgent question on the matter.
“The US government barked and the UK cowed,” he said. “The government got the collywobbles. Jeff Sessions huffed and puffed and blew the home secretary down. The prime minister decided to kowtow to Trump, and the government changed the policy secretly without telling this House.”
The UK received hundreds of “mutual legal assistance” requests from other countries, as they attempt to gather or exchange information on criminals.
But the government usually demands assurances that the death penalty will not be used in exchange for handing it over.
Ben Wallace, the security minister, said assurances had been waived on two previous occasions since 2001 but refused to provide further details “due to the potential to harm ongoing criminal investigations or future prosecutions”.
Afzal Khan, the Labour MP for Manchester Gorton, noted the government had restated its “absolute opposition” to capital punishment on the World Day Against the Death Penalty earlier this week.
“Does the minister agree that making exceptions undermines our own credibility on human rights issues around the world?” he asked.
Chi Onwurah, the Labour MP for Newcastle-upon-Tyne Central said it was of “essential importance not to outsource our moral and ethical base by helping in the execution of the death penalty” and undermine the democratic values Isis seeks to destroy.
Mr Wallace said the UK’s “overseas security and justice assistance guidance” allows assurances to be waived in exceptional circumstances.
“The options before this government, our security forces and our citizens do not include a magic wand to get people miraculously into a UK court or provide evidence that matches the statute book that we happen to have,” Mr Wallace told MPs.
“The strong reasons that, we would say, mean that the rights of those individuals detained are better served by a judicial trial in the United States are that they have a better chance of proper representation in a court of law than if they were left in detention by non-state actors in a war zone in north Syria, sent to Guantanamo Bay – something that the government opposes fully – or allowed to go back into the battlefield and wreak murder and death in the same way that they have been accused of doing in the past. Those were the options on the table.”
Lawyers representing El Sheikh’s mother told the Lord Chief Justice, Lord Burnett, and Mr Justice Garnham that the “unprecedented and unjustified” decision was taken against advice from government departments.
Edward Fitzgerald QC said it was influenced by the “anticipated outrage” of members of the Trump administration if the UK demanded assurances that the pair would not face the death penalty.
“This country should not facilitate the imposition in another country of a punishment which we ourselves recognise as inhuman and unlawful,” he told the Administrative Court in London.”
He said that Mr Javid “took those steps in large part because of the anticipated outrage of certain political appointees in the Trump administration if the UK insisted on death penalty assurances.”
He added: “We submit that the anticipated outrage of those US officials was not a proper consideration as a matter of law.”
Mr Fitzgerald accused the home secretary of “giving up” on asking for assurances following a meeting with US attorney general Jeff Sessions in May, and performing an about-turn that was “both unreasonable and unlawful”.
The court heard that Mr Sessions had expressed indignation at the prospect of having his “hands tied” by the UK while it refused to prosecute the pair, and suggested they could be detained at Guantanamo Bay instead.
A briefing by the British ambassador in Washington warned that continued demands for a guarantee against execution prompted fears that senior members of Donald Trump’s administration would “wind the president up to complain to the PM and potentially, to hold a grudge” that could damage bilateral relations.
Patrick Grady, the Scottish National Party MP for Glasgow North, asked: “What is the point of the special relationship if we cannot speak clearly and honestly to what is supposed to be our closest ally?”
Yasmin Qureshi, the Labour MP for Bolton South East, added: “We either believe in the death penalty or we do not.”
Judges will announce their decision on whether to grant permission for a judicial review on the decision at a later date.
El Sheikh and Kotey, who remain in Syrian Democratic Forces detention, were allegedly members of a cell dubbed “The Beatles” that killed a series of hostages including James Foley, Alan Henning and other British and American victims.
Made Specially Designated Global Terrorists by the US, captives have told of their brutality, which included waterboarding, electric shocks, mock executions and crucifixions.
Executioner Mohammed Emwazi, who became known as “Jihadi John”, was killed in a drone strike, while the remaining “Beatle”, Aine Davis, is imprisoned in Turkey.
Kurdish leaders have called for hundreds of captured Isis fighters to be repatriated to their countries of origin, but the UK and other nations have been stripping militants’ citizenship and taking measures to prevent their return, and there are concerns that they could be freed if the stalemate continues.
The Independent has launched its #FinalSay campaign to demand that voters are given a voice on the final Brexit deal.