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The Lord Bishop of Oxford: My Lords, I, too, am grateful to the noble Baroness, Lady D'Souza, for initiating this debate on such a crucial subject. Like some other of your Lordships, my particular concern has arisen from the Government's decision to deal with the problem of deporting foreign nationals who are suspected of involvement in terrorism by securing diplomatic assurances from nations that are known to practise torture. On 20 July the Home Secretary announced that agreement had been reached in principle with Jordan, and it is believed that similar understandings are being negotiated with Algeria and Egypt, amongst others. All three countries have ratified the convention, but all are known to practice tortureas is demonstrated in the recent findings of Amnesty, Human Rights Watch and the US State Department.
As the noble Baroness, Lady Williams of Crosby, also stressed, there is widespread agreement among international lawyers and human rights observers that diplomatic assurances provide no effective safeguard against the torture or degradation of those who are returned. The very fact that assurances are sought demonstrated that a risk is recognised to exist, and that there are no adequate means of monitoring or enforcing the assurances that may be given. There is also a track record of a failure to comply. For example, in May 2005 the Swedish government was found to be in breach of its Article 3 obligations when it relied on diplomatic assurances from the Egyptian government about an asylum seeker who was returned and subsequently tortured. It is worrying that the 2005 memorandum of agreement between the UK and Jordan provides no mechanism for enforcement where either government renege on their obligations.
In addition, serious doubts exist about the viability of monitoring arrangements. The UK-Jordan memorandum provides that anyone arrested, detained or imprisoned within three years of being returned will be entitled to prompt and regular visits from a representative of an independent body nominated jointly by the two governments. However, the international committee of the Red Cross has refused to act as a monitor in Egypt, because it regarded access arrangements as unsatisfactory. Recently, both Amnesty and the Egyptian national council for human rights have refused to work with the British Government.
The Government argue that other governments can be trusted to honour diplomatic assurances. In the light of past behaviour, and the absence of adequate monitoring and enforcement procedures, this sounds very hollow indeed. Professor Robert Goldman, the UN independent expert on the protection of human rights and fundamental freedoms while countering terrorism, Professor Manfred Nowak, the UN special rapporteur on torture, and Alvaro Gil-Robles, the Council of Europe's commissioner for human rights, all maintain that such assurances cannot be relied upon to secure protection from torture and ill-treatment. The Government really need to provide more convincing arguments than they have so far adduced for disagreeing with these weighty judgments.
"Torture is one of the worst human rights abuses. As torture is outlawed under general international law as well as specific human rights treaties, when governments condone it, they risk losing their legitimacy and provoking terrorism".
Torture brutalises those who practice it, morally corrupts those who control or permit it, and contaminates those who directly or indirectly condone
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it. Furthermore, as has been argued, the unreliability of so-called information gained by torture has been repeatedly demonstrated.
Civilisation is fragile. When it is endangered all our efforts should be redoubled to protect the values and conduct which are its substance. The struggle is about hearts and minds. We must refuse to be diverted. Those who claim to be on our side but practice torture are not just wrong but guilty of treachery. They aid and abet the forces we seek to overcome. They give succour to those who want to win new recruits for extremist action. To prevail, civilisation demands a constant commitment to principles based upon respect for the dignity and integrity of people everywhere. Torture is itself terrorism. Terrorism will never be defeated by the deployment of terrorism in any form.
The Joint Committee on Human Rights, of which I am a member, is embarking on an enquiry into UK performance against the requirements of the United Nations Convention. This will have to cover two things, amongst others. First, the returning of people to countries where there is a danger of their being tortured. As the noble Baroness, Lady Park of Monmouth, has pointed out, Article 3 of the UN Convention is quite specific.
The Government have been doing a great deal to secure formal agreements with some likely destination countries that anybody returned will not be tortured. As has been argued, the question arises as to why such an agreement is necessary. It is, of course, because the danger exists. But if it does, and torture is endemic to the system of such countries, how much confidence can there be that any agreement will be honoured?
"A returned person who is arrested or detained will be brought promptly before a judge or other officer authorised by law to exercise judicial power in order that the lawfulness of his detention may be decided".
Secondly, there is the use of material in the proceedings of SIAC, or indeed elsewhere, of information which had been secured under torture. The Government clearly have a responsibility to establish, beyond doubt, whether torture has been used. SIAC has accepted that as long as no British agent has been involved it can be used, even if it has to be regarded with caution. The appeal court has upheld this position. The argument seems to rest on the principle that UNCAT has not yet been incorporated into British law; and also that SIAC is claimed to be more in the realm of civil than criminal law. The matter is now before the Law Lords, and their ruling will be very important in this respect.
"Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made".
At a time when the paramount importance of the international rule of law could not be more obvious, it is surely essential that not just the letter but the spirit of conventions to which we are a party should be observed. Otherwise, the credibility of international law is seriously damaged, and that is counterproductive in the battle for hearts and minds. If we do not intend to abide by conventions or treaties, we should not enter into them. There is a great deal at stake for the future of the global community.
The noble Baroness, Lady D'Souza, is warmly to be thanked for having brought this critically significant issue before the House today. We must be vigilant, as self-generating erosion of the values that we seek to defend could all too easily become a dangerous avalanche.
By that, he apparently meant that the rules within international human rights law, including the UN Convention Against Torture and the Human Rights Act, need changing. That impression was sadly strengthened when the Lord Chancellor appeared to warn British judges that they might have to be instructed by Act of Parliament on how to interpret and apply the prohibition against torture in Article 3 of the convention more restrictively than the Grand Chamber of the European Court had done in the Chahal case, by giving greater weight to national security.
What the Prime Minister finds objectionable in the court's ruling is that even if someone is a threat to national security he must not be deported to a country where there is a substantial risk that he will be subjected to torture. That ruling, as has been said, is reinforced by Article 3 of the UN Convention Against Torture. Mr Blair said:
In my view, it is quite inconceivable that the Strasbourg court or the English courts would now interpret Article 3 more narrowly, or would overlook the binding obligations in the Convention Against Torture. That is confirmed by the magnificent recent unanimous judgment of the Supreme Court of New Zealand, which rejected the obnoxious balancing test. The Government's intervention in a pending Dutch case before the European court to try to reverse or limit Chahal is an exercise in forensic futility, which in my view is doomed to failure.
There is of course a dilemma that no one else has yet mentioned, and which human rights NGOs need to face up to. What is to be done with a really evil, dangerous, subversive person who cannot be tried in this country, and about whom there are reasonable grounds for suspecting that they are a threat to national security, and where they are alleged to have committed serious crimes in a most unpleasant country that has a record of torture? What is to be
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done with such a person? If such a person remains here, they are to remain under house arrest, or indefinite detention, or something else of that kind. If they are sent to that country, they will face torture.
For that reason, I commend the Home Secretary for seeking binding international agreements, as we do with the United States in respect of the death penalty, provided that those international agreements contain specific assurances, in clear terms, with strong and continuing independent monitoring, as has been said by other noble Lords. If that can be achieved, as it has been in the United States with local state prosecutors in respect of the death penalty, in principle the courts, looking at the facts of each case independently, would give full faith and credit to agreements of that kind. The problem is whether one can really negotiate a memorandum of understanding with safeguards.
Finally, I hope that the Law Lords will soon decide that the Convention Against Torture can be interpreted and applied as though it had been incorporated by legislation in this country to forbid the use in British courts of evidence tainted by torture abroad. I also hopethis may seem ludicrousthat the Government will decide eventually to incorporate the UN Convention Against Torture and the International Covenant on Civil and Political Rights, as have done the other major countries of the European Union and the Council of Europe, into our domestic law, so that our judges do not have to seek to fill the gap by some creative judicial lawmaking.
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