Examination of Witness (Questions 100-119)
CLAIRE WARD
MP, MS DEBORAH
GRICE AND
MR GILAD
SEGAL
1 JULY 2009
Q100 Lord Morris of Handsworth: And
you would say that all these difficulties, like time, are higher
than our moral obligation?
Claire Ward: No. I would say that
in themselves they are not simply barriers to legislation; but,
as I have said earlier, I think we also have a duty not simply
to put onto statute legislation that may be there in principle
but which in practice actually gives very little to victims—simply
because the reality of the prosecution, of attempting to get a
successful prosecution, would be incredibly difficult.
Q101 Lord Morris of Handsworth: But
what about the deterrent factor? I might accept from you that
in so far as some of the cases you cannot give redress to the
victims, but what about the deterrent factor for future torturers?
Claire Ward: Future torturers
would be covered by the 2001 Act, and therefore that is the deterrent.
We already have that deterrent in place. So I would hope that
anybody thinking about committing genocide now would recognise
just how serious the legislation is, not just in the UK but internationally;
but I do understand—
Q102 Lord Morris of Handsworth: You
are not suggesting that the legislation will solve all these constraints
that the Government cites now?
Claire Ward: Legislation in itself
will not solve all of those problems. There are obviously lots
of other things that governments can and should do. That is why
we are working with other countries, through other departments
and with the FCO. All of those things are taking place in any
event. In terms of the legislation, it cannot be all.
Q103 Lord Morris of Handsworth: If
you accept that legislation cannot be the be all and end all,
you are coming back to the point of whether or not you have the
will to act or the moral imperative to act.
Claire Ward: I think we have already
made it clear that we have a moral view on this, which is why
we have introduced the 2001 Act and why we have done so many other
things. Our moral position on this is quite clear. The issue is
do we make changes perhaps that make things retrospective? Do
we make changes that change the terms in which somebody can be
prosecuted? Do we do all of those things?
Chairman: Or do we make changes that
say to all these murdering people, the war criminals, the torturers,
the genocidaires, "Don't come here because, if you do, you
will be arrested"? Is there a deterrent impact with all this
as well?
Earl of Onslow: " ... but you may
come shopping in Bond Street."
Q104 Chairman: If you changed the
law right, they would not come shopping in Bond Street; they would
not come to Harley Street for their treatment; they would not
come here on holiday; they would not come here to go to university.
Is that not what we want? We do not want these people in this
country, do we?
Claire Ward: We do not want people
in this country who may be guilty of these things, but we have
done a lot of the things around it; whether that be the 2001 Act,
the work we are doing with the UK Borders Agency. Obviously, as
I have already said, we are considering the other issues that
have been raised as part of our ongoing deliberations. I am well
aware that the legislation in the Coroners and Justice Bill is
going through the House of Lords. And there are opportunities
to continue this discussion over the coming weeks.
Q105 Chairman: If General Mladic
suddenly turned up at Heathrow and went shopping in Bond Street—you
may have an international arrest warrant, but put that to one
side—you would not be able to charge him with genocide,
would you?
Claire Ward: I cannot comment
on what the circumstances of that would be. That would not be
a position I could comment on.
Q106 Earl of Onslow: Given that there
are already several exceptions to the state immunity rule for
things far less egregious than torture, why does the Government
not support an exception for torture?
Claire Ward: I did not quite catch
that.
Chairman: We are going on to the Torture
(Damages) Bill, in which I ought to declare an interest as having
one coming up on Friday.
Q107 Earl of Onslow: I should have
said that before. JUSTICE have said, "It is plain that the
state immunity rule is hardly unqualified ... a number of exceptions
already exist ... the question is whether torture is sufficiently
serious to qualify as an exception, alongside claims for employment
and interests in moveable and immoveable property". Given
that there are already several exceptions to the state immunity
rule for things far less egregious than torture, why does the
Government not support an exception for torture?
Claire Ward: Because it is a general
principle of international law that one state is not subject to
the jurisdiction of another, except in certain circumstances.
Therefore we have not taken that position, simply to unilaterally
assume jurisdiction over this area.
Q108 Earl of Onslow: My brief here
tells me that there are some exceptions already. The Ministry
of Justice tells us that. If the rule is absolute, I would understand,
but it is not absolute.
Claire Ward: What are the exceptions?
Q109 Earl of Onslow: It says here,
and I am cribbing, " ... sufficiently serious to qualify
as an exception, alongside claims for employment and interests
in moveable and immoveable property". There is a footnote
which says "JUSTICE... Torture (Damages) Bill Briefing for
House of Lords Second Reading".
Claire Ward: We are finding it
quite difficult to hear you.
Q110 Chairman: Let me put it to you
quite simply. Here we have jurisdiction which allows civil claims
against foreign governments if there is an employment dispute
or, if there is an argument about property, whether it is moveable
property or buildings. We can sue them for that, but we cannot
sue them for compensation as a torture victim. Does that not say
something rather peculiar about our priorities?
Claire Ward: What it says is,
when the UN adopted the 2004 Convention, it considered whether
or not jurisdiction should be on criminal grounds or on civil.
My understanding is that it determined that criminal, yes, but
not to extend it to civil.
Q111 Earl of Onslow: Does that apply
in France, where this clear distinction does not apply?
Claire Ward: I cannot speak for
France, I am afraid.
Earl of Onslow: The point is that other
states do not make that distinction.
Q112 Chairman: The United States
Torture Victim Protection Act 1992.
Claire Ward: They may well have
decided—
Q113 Chairman: France, Germany, Italy,
Spain.
Claire Ward: They have decided
to take that action. That is not in the normal round of what is
done within the international community.
Q114 Earl of Onslow: So you could?
Her Majesty's present advisers could, if they wanted to?
Mr Segal: As things stand, a unilateral
assumption of jurisdiction, as required by the relevant Bill,
would raise an issue about our obligations, both our treaty obligations
and under international law; because the UN Convention on Torture
which was negotiated did not include an international civil cause
of action, albeit that was considered. The option was discussed
but not pursued.
Q115 Earl of Onslow: The Chairman
has already given you a long list of countries that do give this
exception to state immunity; so why cannot we?
Claire Ward: There are also some
fundamental difficulties in providing for civil action on this.
Q116 Chairman: Let me read you Article
14 of the 1985 UN Convention Against Torture. "Each State
Party shall ensure in its legal system that the victim of an act
of torture obtains redress and has an enforceable right to fair
and adequate compensation including the means for as full rehabilitation
as possible." Compensation, to me, sounds very much like
a civil remedy.
Claire Ward: We provide for the
criminal remedy, in terms of criminal jurisdiction, not for civil.
Q117 Chairman: Compensation is not
a criminal jurisdiction.
Claire Ward: We also could not
guarantee enforcement of it. If we were to allow civil jurisdiction
for a civil action to be taken in respect of somebody alleged
to have been a torturer, we could not enforce that action.
Earl of Onslow: Minister, you cannot
guarantee anything in this life. People will go on disobeying
the law; people will do torts to other people; and nobody can
be guaranteed a permanent piece of justice, because it is not
possible in humanity. It is no reason not to try.
Q118 Chairman: The point about it
surely is this. If we do not have a problem allowing people to
recover damages in a property dispute or an employment dispute—we
do not have a problem with that, because we allow it to happen—what
is the difference between that and somebody getting an award for
damages for torture? It is exactly the same process to recover
the compensation.
Claire Ward: I would suggest that
it is probably rather more difficult—
Q119 Chairman: It is the same process.
Claire Ward: But rather more difficult
in respect of somebody who has been found guilty of torture, whether
that person is an individual, whether they are acting on behalf
of the state. The state would retain immunity. That would be much
more difficult to enforce.
Chairman: We will beg to differ on that
one.
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