Examination of Witness (Questions 120-133)
CLAIRE WARD
MP, MS DEBORAH
GRICE AND
MR GILAD
SEGAL
1 JULY 2009
Q120 Lord Dubs: The Ministry of Justice
has said that provision in the Bill for awards of aggravated and
exemplary damages goes "against settled Government policy
that there should be no statutory extension of the availability
of exemplary damages in civil proceedings". I know that we
have been arguing about any damages in civil proceedings
but, if we can get over that hurdle, why does the Government think
there should be exemplary damages for some of the instances of
torture that we have already talked about?
Claire Ward: I have to say, with
respect, I am afraid we cannot actually get over the hurdle, which
is that we do not accept that there should be the provision to
apply for any damages. Therefore, the debate about whether or
not they are aggravated damages or exemplary damages is, in a
sense, kind of irrelevant—because we do not accept the premise
of it in the first place.
Q121 Lord Dubs: I expected that answer.
However, going back to civil actions against foreign states for
torture, that is done in the United States for example. You have
said that there are a lot of difficulties about that happening
here. How do Americans get over these difficulties? How do they
enforce their judgments?
Claire Ward: Perhaps I could ask
one of the officials to tell you a little bit more about the United
States' position.
Q122 Lord Dubs: Americans appear
to be doing it and they do not seem to have the difficulties that
you are suggesting we might have here.
Claire Ward: Except that my understanding
is that they do have the difficulties, because it is not quite
as wide as you might suggest in terms of their powers.
Mr Segal: I am not really in a
position to comment on how other states practically have enforced
their own law but, on the wider issue of other states, there is
as yet no evidence that states generally recognise or give effect
to an international obligation to exercise universal civil jurisdiction
over claims arising from alleged torture. It is right that the
US courts—and it is also right to point out, controversially—have
been prepared to exercise extraterritorial jurisdiction in civil
proceedings under the Act that one of the Committee members mentioned.
It is worth pointing out that that is specifically against individuals
who are alleged to have committed torture and not against states.
Moreover, the International Court of Justice has itself expressed
some scepticism as to the exercise of such jurisdiction by states
generally. Those are also relevant factors to highlight for the
Committee, therefore.
Q123 Lord Dubs: Could I say in more
general terms, Minister, that you did say the Government was looking
at all this. I hope that we have been helpful to you in what we
have said, in that you can go back to the department and tell
them that the present position is so difficult that there will
have to be changes. I hope that we have been very helpful in that
process.
Claire Ward: I can assure you
that the Committee has of course been helpful in their contribution
to this whole debate. The Government is looking at this. As I
have already stated, the Justice Secretary has had a series of
meetings, just as I have had meetings too with stakeholders, with
the all-party parliamentary group, and we understand the serious
issues that are being raised. The Justice Secretary has said that
there have been some very strong arguments put forward. We are
considering the points.
Q124 Chairman: Let me put this to
you on the Article 14 point. You trained as a personal injury
lawyer, I know. I practised as a personal injury lawyer, as you
know. What does "an enforceable right to fair and adequate
compensation" mean to you as a personal injury lawyer? Because
I know what it means to me.
Claire Ward: With all due respect,
I trained but I did not practise very long as a personal injury
lawyer; so I certainly would not want to give any kind of legal
advice these days on the matter. Essentially, we are providing
some form of compensation, in a sense, to the victim; the compensation
being that they are in a position to be able to take action for
criminal activity.
Q125 Chairman: That is not compensation.
Claire Ward: It may not be a pecuniary
or financial compensation.
Q126 Chairman: If it said "hold
the torturer to account criminally", that is one thing; but
"compensation" means only one thing, in the Oxford
English Dictionary or in personal injury law or in any other
law in general, does it not?
Claire Ward: We are allowing for
the victim to be able to get some redress in this matter.
Q127 Chairman: It does not say "redress";
it says "compensation".
Claire Ward: I believe that compensation
to be essentially a form of redress.
Q128 Chairman: It says, "obtains
redress and has an enforceable right to frame adequate
compensation". Not "or"—"and".
Claire Ward: As I think has already
been stated, there are some serious practical difficulties to
allowing us to be able to do that, one of which is that, essentially,
by extending our jurisdiction we would be doing so, the Government
believes, in contravention of the international position at the
moment. Therefore, we are not in a position to do so unilaterally.
Q129 Chairman: Can I ask another
question around the background to all this? In the case of Jones
v Saudi Arabia the then Secretary of State for Constitutional
Affairs intervened to persuade the House of Lords that state immunity
in respect of civil proceedings and torture covered not only the
state itself but also civil proceedings against his officials.
We know it is a matter of public record that the Government came
under pressure from Saudi Arabia to discontinue the SFO's investigation
into Aerospace, did the UK Government receive any communication
from the Saudi Government concerning the Jones litigation?
Claire Ward: I am afraid I could
not comment on an individual case, I am not in a position to do
so.
Q130 Chairman: Would you like to
investigate and write to me on that point?
Claire Ward: We could certainly—
Q131 Earl of Onslow: When you say
you cannot comment, is that because you do not know or because
you are not allowed to say?
Claire Ward: I just am not in
a position to comment.
Q132 Chairman: Will you write to
me on this point?
Claire Ward: I will write to you
with as much information as I am in a position to give.
Q133 Chairman: Thank you. I think
that is the end of the session. There is a lot for you to think
about.
Claire Ward: Thank you very much.
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