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Baroness Murphy: My Lords, I join other noble Lords in thanking the noble Baroness, Lady D'Souza, for raising this important debate tonight. I hesitated in putting my name forward for the debate, since I am no expert in this matter. The issues I want to discuss may be rather obvious ones.
I am moved to speak because as a young psychiatrist in the 1980s, I heard at first hand the stories of refugees tortured under the Pinochet regime in Chile; stories of horror that were etched on my dreams for months and will never be forgotten. Torture is not just a painful, frightening and degrading episode. The consequences last many years; the depression, fear, loss of self-worth and even more serious psychiatric consequences for victims often last lifelong. This has been so often said by the Medical Foundation for Torture Victims, whose work I want to praise. It has done so much valuable work to restore broken bodies and minds.
In order to carry out torture, the perpetrators have to be trained to believe that the objects of their torture are less than human, not like us, unworthy to be treated as members of the human race. We know how frighteningly easy it is to create the conditions in which people feel like that about others. I have known good peoplenursesto do the most barbaric acts to patients under the right circumstancesor the wrong circumstances. I know how easy it is to slip down that slippery slope.
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I shall now address the reliability of the utilitarian arguments about the use of torture. Gisli Gudjonsson, the Professor of Forensic Psychology at the Institute of Psychiatry, has carried out extensive research in police interviewing in cases of false or disputed confessions in the UK. In over half the cases he reviewed, the psychological vulnerability of the person being interviewed led to a false confessionunder ordinary police questioning rather than under coercive or oppressive interviewing. It is not only people with learning disabilities or who are frankly mentally ill who make false confessions. We know well that suggestible, impulsive and submissive people who would be considered psychologically robust will agree to all kinds of things put to them, even when the long-term implications for them could be catastrophic.
How much more likely then is it that improper, oppressive questioning, and the threat or reality of torture, would produce evidence of no value whatever? It is not in doubt that that kind of evidence is frequently on offer from overseas sources. Even when evidence can be accepted, though unreliable, with other corroborating evidence, it really is never enough to justify the impact that it has on the perpetrators.
I read earlier this year Professor Mirko Bagaric at the Deakin Law School defending the official use of torture, even of innocent individuals, in the face of possible terrorist acts if the information would save lives. Alan Dershowitz at Harvard has written very much in the same vein, although he says that he prefers judges and presidents to make the decision and that it should not be perpetrated by "low-level people". He suggests that sterilised needles under the nail could be acceptableI am glad that he said they should be sterilised. That was written by him on websites pertaining to his department.
The ends do not justify the means. We degrade our own humanity in the process of doing so. For that reason, I join with the noble Baroness, Lady D'Souza, and others who have spoken, in saying that we must not condone, under any circumstances, returning people to regimes where we know that they are likely to be tortured. Indeed, we should impress on our friends among the international community that we will not condone their torture either.
Baroness Kennedy of The Shaws: My Lords, next week our highest court will begin hearing one of the most important cases of our times. The judges in the House of Lords are to examine the issue of torture and are being asked to determine whether the Home Secretary can use as evidence material that may be the product of torture.
The political pendulum has already swung to unimaginable places, but this is a place beyond imagining. While torture is universally condemned, here we are in the 21st century still debating the acceptability and usefulness of torture and its products in certain circumstances. We talk about ticking bombs, a hypothesis that is never grounded in any real case.
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I am always cautious about any form of national boastfulness but, as we thrash around in search of the values that lie at the heart of being British, one of the values we can feel proudest of is that it was here that institutional opposition to torture was first formulated. One of the distinguishing features of English common law from its earliest inception was its outright rejection of torture as a method of proof. It is one of the defining characteristics of our law. As such, it is a constitutional principle, and we should feel proud of it.
In Felton's case in 1628, the judges made the position very clear, holding that evidence obtained by torture was inadmissible. They placed an absolute prohibition on torture and any use of the product of torture in the courts. Rendition, howevernot new, I have to tell my friendswas a problem even then. Scotland continued to torture suspects and witnesses for 50 years after England. We used to send detainees up to Edinburgh for a bit of stretching on the rack. Happily, Scottish judges and the people of Scotland railed against the horror of what was happening, and Scotland became the first country to legislate against the use of torture, in the Treason Act 1709.
The principled opposition to torture is deep in the bowels of the UK legal systems. The reason for the rule against torture and its products is the outrage to civilised values that torture necessarily involves. Once exceptions to the law prohibiting torture are created, those exceptions will be abused. Once you give legitimacy to torture, you open the space for more torture.
"By using torture or . . . the fruits of torture, the state weakens its case against terrorists, by adopting their methods, and it loses the moral high ground an open democratic society enjoys . . . Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand".
Our signing of international conventions does not just impose a duty to refrain from torture, but creates an obligation to condemn and deter torture and to suppress all its manifestations, which means also using it for evidence in our courts, even if it is happening somewhere else. Our own Lord Justice Neuberger, dissenting in the Appeal Court judgment, said:
The Government's position, however, is that they refuse to rule out accepting evidence suspected of being obtained by torture, as long as our agents have not been involved in it. Even worse than that, the real
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rub is that we will not ask foreign intelligence sources the million-dollar question of whether torture was used to secure the information we are using in our courts. I understand that the policy is "don't ask, don't tell", and I would like to hear from the Minister whether indeed it is. If so, it is a pathetic and shameful avoidance of our moral responsibility. If we are able to say that we did not knowingly use torture, because we did not bother to ask, those are weasel words.
If we really want to change our commitments, the Government will have to go to Parliament. If we want to use the fruits of torture as evidence, we should legislate to do so, and it should be for the democratically elected legislature, after full and informed debate, to spell out that purpose. I do not believe the people of Britain want us to connive in torture, and I hope Parliament would find it an absolutely disgraceful prospect. I find it hard to imagine it is a legacy of which Mr Blair would be proud.
Lord Avebury: My Lords, two themes have dominated this debate. First, the use of evidence obtained by torture, which is prohibited by the convention in all circumstances, whether in the form of confession or against third parties, and in non-criminal as well as in criminal proceedings. The Government must ensure that our law is brought into line with that principle if the Judicial Committee fails to do that next week. The distinction drawn by the Court of Appeal between SIAC and criminal proceedings is spurious, as the noble Lord, Lord Judd, points out, and it would be alarming if any courts were entitled to ignore the convention.
If the Government win the case of "A" before the House of Lords, that is not the end of the matter. The JCHR will be reporting on the implementation of the convention by the UK. The case of "A" itself could go to Strasbourg, and the Committee Against Torture would review the position. The proposals to combat terrorism would come under even more hostile scrutiny in both Houses of Parliament.
Secondly, there is the UK's reliance on diplomatic assurances that terror suspects sent back to countries such as Algeria would not be tortured there, in the absence of effective post-return monitoring arrangements and appropriate due-process guarantees, as mentioned by my noble friend Lady Williams. It is said the Government are considering a belt-and-braces approach of watering down the Human Rights Act, so that, whatever is said in Strasbourg about these matters, we can deport people to countries where they can be tortured. I would like to know from the noble and learned Lord the Lord Chancellor whether there is any intention to amend the Act.
The right reverend Prelate has referred to the agreement with Jordan, that deportees we send back there should not be tortured,. This agreement provides for monitoring by the representative of an independent body to be agreed by the UK and Jordan. As he said, this has proved impossible in the case of Egypt, and it
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is unlikely that the task will be any easier in Jordan. If it does turn out to be possible to establish effective systems of monitoring in either country, however, there is still no effective remedy, as he pointed out, when the agreement is breached. All we can do is give six months' notice of termination of the agreement, with no mechanism for enforcement.
It would be a serious error of judgment, of which we have been given due warning, if Britain were to deport people to Algeria, or indeed to any of the other countries that have been mentioned, unless and until arrangements are made for monitoring the agreement that are watertight and subject, I would propose, to approval from the special rapporteur on torture, or some similar international authority.
Finally, the Committee does not agree with the opinion we expressed when giving evidence, that the convention did not apply in full to territory where our forces were in de facto control, as in Iraq and Afghanistan. They say we should publish the result of all investigations into alleged misconduct by members of our forces in both countries. It is particularly important, since we are there ostensibly to restore the human rights of Iraqis and Afghans, that we act promptly, transparently and in full conformity with human rights instruments that we have signed, when any allegations of misconduct come to our attention.
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