Examination of Witness (Questions 40-57)
MR KEVIN
LAUE
1 JULY 2009
Q40 Baroness Prashar: Mr Laue, can I
welcome you to the Committee? I am Usha Prashar; I am chairing
this meeting until the Chairman arrives because he is sitting
in the House of Commons. It would be very helpful if you would
begin by telling us what you actually do; what is the remit of
REDRESS?
Mr Laue: Certainly. Thank you
very much, Chairman. The Redress Trust is a registered charity
and non-governmental organisation. It is an international human
rights organisation. Our mandate is to seek reparation for torture
survivors. We were formed 17 years ago, in 1992; so we work with
survivors or victims of torture and try to obtain justice for
them in various forms.
Q41 Baroness Prashar: Is there anything
that you want to say by way of introduction before we start asking
you questions?
Mr Laue: Just to say that fairly
obviously the Redress Trust supports the Torture (Damages) Bill
and we have worked fairly closely with those involved with it.
Q42 Baroness Prashar: Thank you very
much. I will start. The government has said that it does not have
an international mandate to adopt universal civil jurisdiction
regarding torture, and that it would breach our obligations under
international law to do so. How do you respond to that?
Mr Laue: If I may rephrase the
issue somewhat perhaps it would be helpful, rather than asking
whether there is a mandate. We would suggest that the question
should be: is the UK required to give immunity? In other words,
is it under an obligation to bar civil claims against foreign
torturers? Our position on that is that there is no such obligation
to prevent litigants bringing cases in UK courts. In fact, we
would say that there are good reasons for saying that the Torture
(Damages) Bill should be passed to allow civil claims to be brought
in the UK, for several reasons. It is a basic principle of international
law now that all victims of serious or gross human rights violations
have the right to access to justice. So at present with the status
quo this access is denied to people who were tortured abroad if
they wish to litigate through the UK courts. We would also say
that the whole issue of state immunity is already one where there
are exceptions to what used to be the absolute rule or the absolute
bar to suing a foreign state. Therefore, the Torture (Damages)
Bill is looking to create a further exception. It is not really
all that radical, as the government might want to suggest. A third
point we would refer to is the Torture Convention itself—the
United Nations Convention Against Torture. Article 14 obliges
states to allow reparation proceedings to be brought, to make
reparation. Of course, it has been said by some that Article 14
puts an obligation on the torturing state and not on, in this
case, the UK, for torture that was committed abroad. This may
or may not be right but the point is that it does not prohibit
the UK allowing its courts to be used. It is clearly at the very
least permissible. As has been said I think in other contexts
we can perhaps look at it as the floor and not the ceiling of
this issue. So in summary we would say that universal jurisdiction
for a civil claim is not prohibited. We would also in fact like
to pose the question to the government: if the government accepts
that there are positive obligations towards torture survivors,
which there clearly are if you look at the Torture Convention
as a whole—a number of positive obligations—then why
does it want to prohibit this further route, because the effect
of continuing to have this bar is actually to grant impunity in
many cases? So that is a rather long answer but the point I am
trying to stress is that we think that the onus is on the government
to be more forthcoming. How they want to deal with this problem
is a real one, if they want to continue the status quo.
Baroness Prashar: That is very helpful.
Q43 Mr Sharma: In the Second Reading
debate the Shadow Lord Chancellor, Lord Kingsland, said that the
passing of the Bill would not necessarily enable private actions
in UK courts, as the Bill intends, because of international law
on state immunity. Do you agree?
Mr Laue: If I may answer this
way? The point he was making was that if this Bill is passed and
a litigant therefore is not prevented by the State Immunity Act
the defendant state could still say that under international law
the state being accused and litigated against is entitled to immunity.
Our answer to that is that may be an argument that is raised at
the time and the court would then have to decide whether international
law allowed a state that bar. What this Bill is doing is dealing
with domestic legislation, which currently the House of Lords
has said to mean that there is no exception for torture. If I
can also refer to what Lord Woolf said in that same debate, in
answer I believe to the point that the minister had raised, that
if the State Immunity Act had been passed after the Torture Convention—if
the historical chronology had been the other way around—it
might well have been that the State Immunity Act would have had
an exception for torture. International law develops—it
is not static—and we would certainly hope—and we think
there are strong arguments—that once this domestic bar is
dealt with the courts would be open to an argument that international
law has moved on.
Q44 Mr Sharma: The US allows civil
actions against torturers. How does it work there? And have there
been many successful cases?
Mr Laue: The US position is considerably
different to the UK position. If I could just briefly mention
the key laws there? There is what is called the Alien Torts Claims
Act, which is an old piece of legislation going back to 1789.
What it allowed and allows is for aliens, non-US citizens, to
bring claims in the US for a civil action under their law of tort,
for claims arising from a violation of the Law of Nations or a
Treaty of the US. So that has been used by individuals in the
US, aliens in the US to bring claims. In practice it has meant
that individual perpetrators who have been found within the US
or have some connection with the US, and defendants have been
successfully sued, yes. The other important piece of legislation
is a much more recent one—the Torture Victims Protection
Act—and what that did—and it has been amended but
it was first passed in the 1990s—was that it extended that
right to US citizens. So in summary, both foreigners and US citizens
can actually bring claims based on torture, certainly against
individual perpetrators. When one looks at the position of foreign
states it is more complex because there the third important piece
of legislation is called the Foreign Sovereigns Immunity Act and
this does actually bring to bear this principle of state immunity,
certainly for heads of states. The only real exception is that
arising from the fourth piece of legislation, which is much more
recent, called the Anti Terrorism and Effective Death Penalty
Act. The Committee may have heard of the states that sponsor terrorism;
there is a published list of states which the US administration
regards as sponsoring terrorism. So if you are an alien or a US
citizen and you have been a victim of torture by one of those
listed states then you can actually sue that state and the normal
immunity which a state has falls away. So it is considerably different
to our position.
Q45 Earl of Onslow: Has there been
any case of somebody suing North Korea, or whoever it may be—and
I am taking their name as I suspect they are on the list?
Mr Laue: I am not aware of any
cases which have actually been brought by individuals but we could
research and we could report further on that.
Q46 Lord Dubs: Civil law jurisdictions,
like France and Germany, allow compensation to follow criminal
prosecutions. How does this work in practice?
Mr Laue: If I can point out firstly
that there is no state immunity type bar on the continent in the
civil law jurisdictions. Basically what happens is that an individual
complainant or victim of a crime—if I could just talk generally—would
bring a complaint to the police against a perpetrator, an accused
person, and in the course of those criminal proceedings the claim
for compensation would be appended. So what it means is that in
practice it is dependent upon the individual victim; and if he
or she wishes to lodge a criminal complaint and then to claim
damages as well, then that is possible.
Q47 Lord Dubs: Could we do that?
Mr Laue: No, because we have the
strict division between criminal cases and civil law.
Q48 Lord Dubs: I meant could we do
it if we changed our procedures? Would it be sensible to do it
here?
Mr Laue: I think that would be
such a radical change to our traditional separation of criminal
and civil. What is interesting is—as I mentioned and I imagine
the Committee knows—there is universal jurisdiction for
the crime of torture so there is an anomalous position in fact.
A torturer can be prosecuted under our law for the crime of torture
if he comes within the jurisdiction, but you cannot bring a civil
claim because of the state immunity barrier.
Q49 John Austin: Can I turn to the
issue of exemplary damages, which the government has said that
the extension of exemplary damages in civil proceedings is contrary
to government policy. How important is it that exemplary damages
are available?
Mr Laue: The way the Bill is framed
at the moment, as you correctly pointed out, in the fact that
it refers to words that exemplary and aggravated damages being
available, could be amended. We recognise that the policy is that
exemplary damages are really more a criminal sanction and should
be dealt with in that way. We would say that aggravated damages,
nevertheless, should remain.
Q50 John Austin: That would be compensation
for humiliation—
Mr Laue: That is right; for mental—
Q51 John Austin: But the exemplary
would be punitive.
Mr Laue: That is correct. We see
the argument that the punitive aspect may not be appropriate.
So if this Bill went to Parliament that could be amended.
Q52 John Austin: You think you might
live with the government policy?
Mr Laue: Yes.
Q53 Earl of Onslow: There is a limit
in the Bill of six years for bringing proceedings "beginning
with the date when it first became reasonably practical for the
person concerned to bring an action." Amnesty International
thinks that that six-year limit is unnecessary; what is your view
on that?
Mr Laue: We can see precisely
what Amnesty is saying and in principle they are making a valid
point—a victim or a survivor of torture should not be bound
by limitations. On the other hand, as we have set out in our written
submission, there are a number of things in the Bill which have
been put there to try and allay fears of opening what is called
the floodgates of having too many claims. So this is a compromise;
it is saying that it should not be open-ended—it could be
but we accept it is politic to limit it—but we would want
to extend the traditional period or the basic period of three
years for personal injury to six years, so doubling it but not
making it open-ended, to really narrow the ambit of it.
Q54 Lord Morris of Handsworth: Do
you accept that it would be controversial and potentially detrimental
to the UK's interests to seize foreign assets in enforcement of
a judgment against another state?
Mr Laue: Can I answer that one
in this way? If you are looking at this particular Bill it does
not deal with that; it is simply to have a further exception to
the State Immunity Act, to allow a litigant to litigate, where
he or she has been tortured abroad, in the UK courts. The question
of an enforcement, which is what your question raises, is another
issue which would need to be dealt with. The question of foreign
policy and of having problems with other states, yes, one has
to acknowledge that that could upset another government. As it
is, the State Immunity Act, even with commercial claims there
are fairly complicated procedures involved, whereby you cannot
simply seize another state's assets, even where it is arising
from a contract. So these things would have to be faced. If foreign
states argued that they were going to take some sort of retaliatory
action then that would need to be dealt with. This happens. In
the Pinochet case, for example—and I think this is referred
to in our submission—the Chilean Government said that this
was going to lead to a diplomatic crisis of some kind. States
do that. But we would say that the UK should be taking a lead
on developing access to justice. So we recognise that the question
of enforcement is an issue but this Bill does not deal with that
directly or even indirectly—it is simply allowing people
to get to court and to bring a claim. If they obtain a judgment,
if that happens I think a fair question is then: is it all a waste
of time?
Q55 Lord Morris of Handsworth: Unenforceable.
Mr Laue: We are not saying that
it is unenforceable; we are saying that there would be difficulties
which would need to be dealt with. There is value in being able
to get it to court. For example, one can speculate but possibly
a state that is being sued would be embarrassed and would want
to settle the case to actually avoid it being aired in public.
If, however, it was completely obdurate then the mere fact that
a torture survivor has had his or her day in court and has obtained
vindication can in itself be a partial victory. It is by no means,
in that sense an all or nothing. There are cases outside of this
issue where people get a judgment and maybe have problems in enforcing
it if the defendant is a man of straw, and so on. But it does
not mean that it is a waste of time. That is our position.
Q56 Earl of Onslow: Lord Kingsland
in the Second Reading talks about the "range of difficulties
connected with the appearance of the defendant and how the defendant
is represented, and a raft of evidential issues which will have
to be confronted and overcome before the Bill can have, if it
were to become law, operational effect." Considering all
the evidential difficulties involved in cases against foreign
people and countries for torture, how do you think the litigation
process will work? For instance, when a state defends an action
it perhaps may not be able to bring the witness concerned because
the witness concerned is somebody who may have been holding and
wielding the thumbscrews so he might get slotted when he got here.
How do we get around that?
Mr Laue: REDRESS is here to campaign
for plaintiffs, for survivors, for victims of torture. I accept
that even in ordinary litigation there are rules and procedures
which govern the production of evidence from abroad and those
would apply. There are ways around this. Evidence can be taken
on commission; if a defendant state or individual wanted to defend
him or herself in a civil claim this could be done—there
are ways and means of doing that by video link, possibly. I would
answer though in a similar way to the answer I gave to Lord Morris,
that the Torture (Damages) Bill does not seek to deal with all
of these issues. They are or they would be matters which would
need to be dealt with in litigation—we accept that and it
cannot be run away from. But the purpose of the Bill is much more
modest; it is simply to remove this barrier which prevents any
of these further issues ever becoming relevant. It is a first
step. But we do not believe that things like the production of
evidence by either side are insurmountable if a litigant is allowed
into court. It could be difficult in some cases but not impossible.
Q57 Baroness Prashar: Thank you very
much indeed, Mr Laue; that is all from us. Thank you very much
for your time this afternoon.
Mr Laue: Thank you for inviting
us.
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