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Lord Kingsland: My Lords, I, too, thank the noble Baroness, Lady D'Souza, and congratulate her on initiating the debate. I hope that the noble Baroness feels its high quality fully justifies her in taking the initiative.

The noble and learned Lord, Lord Archer of Sandwell, encapsulated the issue most succinctly. He said that the problem is not that the United Kingdom Government practised torture or would ever entertain its practice on their territory or that over which they had control. As the noble Baroness, Lady Kennedy of The Shaws, pointed out, torture has been repugnant to the British tradition for centuries—thank heaven. The problem is rather, as the noble and learned Lord went on to say, whether the Government are turning their back on torture practised by others.

Three main illustrations of the circumstances in which the Government might be doing just that have emerged from today's debate. The first was introduced by the noble Lord, Lord Judd, but elaborated on by the noble Baroness, Lady Kennedy of The Shaws. It is the acceptance in English legal procedure, in the context of SIAC hearings, of evidence from foreign intelligence sources which has been obtained by torture, provided that there had been no participation by a British agent. That matter will soon come before their Lordships' House, but I respectfully share the view expressed by the noble Baroness and the noble Lord, Lord Judd, in no uncertain terms. One hopes that such a practice will cease either by a decision of their Lordships' House or by the Government taking a different view on the matter.
 
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The second issue was graphically illustrated by my noble friend Lady Park of Monmouth; that concerns the circumstances in which asylum seekers are sent back to countries which are suspected of having, or are known to have, torture, among other methods, on their investigative agendas. I have been astonished that the Government have continued to allow the deportation of Zimbabwean nationals to Zimbabwe. There have, of course, been nationals of other countries similarly deported in circumstances where all the public evidence seemed to suggest a serious danger that they would be tortured. I hope that the noble and learned Lord will be able to comment on that.

Finally, and perhaps most importantly, is the deportation of nationals, properly considered undesirable, on security-related lines. The dilemma was skilfully illustrated by the noble Lord, Lord Lester of Herne Hill, and others, such as the right reverend Prelate, have discussed the real dilemma the Government face in addressing this matter. Let us not disguise the fact that the Government have a serious problem here. We all earnestly hope that arrangements can be made which will fulfil the criteria suggested by the noble Lord, Lord Lester, and the right reverend Prelate; but if they cannot be, we must face up to the fact that under Article 3 of the convention we have obligations which are unqualified.

Perhaps ultimately the best way of solving these problems is to have a definition of terrorism in our own country which will enable us to prosecute people in those circumstances and reduce the desirability of deportation to a minimum.

8.22 pm

Lord Falconer of Thoroton: My Lords, it has been a powerful, effective and moving debate. I join every other speaker in congratulating the noble Baroness, Lady D'Souza, on securing it. I respect and revere the work she has done over a long time for the victims of torture. We as a Government, a state and a nation unreservedly condemn the use of torture. We continue to work with our international partners, including the United Nations and the Organisation for Security and Co-operation on Europe, to combat torture wherever and whenever it occurs.

Torture is an affront to human dignity, a denial of the right to respect, which is the inalienable birthright of every human being. It is a crime which degrades the victim and debases and corrupts the torturer. It corrodes every political system in which it is used, substituting fear for trust and servility for dignity. It lasts for years and it damages the will and the coherence of any community in which it is practised. Any country which tortures and degrades offers values to the rest of the world which are completely unacceptable. There is no doubt, too, that terrorism can be dealt with while respecting human rights, including the right not to be tortured. We condemn it without ambiguity.

We continue to oppose and condemn the use of torture all across the world. But we go a lot further than that. We are among the leaders of those taking
 
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practical action to secure its eradication worldwide. For example, in December 2003 we ratified the convention's optional protocol. The protocol seeks to establish an international preventive system of regular visits to places of detention in signatory states. We were the third country in the world to ratify the protocol, and in June 2004 we launched a worldwide campaign to encourage other countries to join us. We are pleased that 13 countries have now ratified the protocol. Twenty ratifications are needed to bring it into force, and we are hopeful that that will happen in 2006.

The noble Baroness, Lady D'Souza, mentioned Section 134 of the Criminal Justice Act 1988—enacted at the time the United Kingdom ratified the convention—which makes it a criminal offence for a public official or person acting in an official capacity to commit torture or cruel, inhuman or degrading treatment or punishment, whatever his nationality and wherever in the world he commits the offence. The penalty for this offence is imprisonment for life. It does not, as I have said, restrict itself simply to this country. As the noble Baroness, Lady D'Souza, pointed out, the first prosecution under Section 134 was brought to a conclusion in July this year with the conviction of a former Afghan warlord in this country. My noble and learned friend the Attorney-General gave his consent to the prosecution. Again, we are leading the world. It is believed that this is the first time anywhere in the world that a foreign national has been tried on charges relating to torture of victims who are also foreign nationals. It was an historic development in the jurisprudence relating to torture, and one of which this country can justifiably be proud.

The noble Baroness, Lady D'Souza, has also mentioned proceedings brought against UK servicemen. We will not tolerate improper treatment of persons held in detention by UK officials overseas. Where there are serious allegations of abuse by British forces against detainees, they are thoroughly investigated. Where evidence has been found, individuals have been prosecuted. For example, British servicemen accused of mistreatment of Iraqi civilians at a humanitarian aid distribution centre near Basra in May 2003 were tried and convicted by court martial in February.

The noble Baroness, Lady D'Souza, asked why prosecution was not brought under Section 134. That was a decision of the Army Prosecuting Authority in consultation with my noble and learned friend the Attorney-General. There was no doubt about the extent to which we deprecated what had happened, and proceedings were brought.

As the noble Lord, Lord Kingsland, rightly identifies, there are dilemmas that any country faces, and the first issue that we have to address is that of how we deal with terrorism of an international sort. Like all governments, we are faced with difficult practical decisions in which we need to balance the rights of our
 
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citizens and the rights of citizens of other countries under the most intense pressure to protect public safety and national security. In facing the dangers posed by international terrorism we have to ensure that those charged with protecting our security have all the tools they legitimately require: legal powers, and human and other resources. In adapting our legal tools to face new threats, we will ensure that we do so in a way that reflects our values of democracy and tolerance, and ensures our continued support for the rule of law, including our obligations under the convention and other treaties that guarantee human rights.

It is vital that we act against those who threaten our national security. The Home Secretary—as the noble Lord, Lord Avebury, said—has decided to deport 23 detainees on grounds of national security. Each is being detained pending the making of a deportation order and the outcome of any appeal. The detainees have a right of appeal to the Special Immigration Appeals Commission. We will not deport people unless we are in a position to satisfy the courts that their removal would be consistent with the United Kingdom's international obligations. The Government would not extradite a person where there is a real risk of the death penalty being imposed. Similarly, we would not remove a person under immigration powers in the knowledge that this would lead to treatment contrary to Article 3.

We are determined, however, to pursue deportation action against those who have no right to remain in the United Kingdom, while ensuring full compliance with our international obligations. Where necessary, our approach includes entering into discussions with foreign governments in order to ensure the proper treatment of those who are deported. Noble Lords have rightly referred—including the noble Lord, Lord Judd, the right reverend Prelate the Bishop of Oxford and the noble Lords, Lord Avebury and Lord Lester of Herne Hill—to the fact that memorandums of understanding are being sought with certain countries to which deportations are contemplated. It will be for the Special Immigration Appeals Commission to determine whether those memorandums of understanding give sufficient protection to the relevant deportees. We should trust our courts to address these issues in a sensible way in accordance with the terms of Article 3.

I also submit that noble Lords should not deprecate seeking these memorandums of understanding, because they could provide protection and improve the human rights conduct of those countries with which they are made. We should not be in any way embarrassed in seeking those memorandums of understanding, and people should not say that they are ineffective until they have seen what they say.

On the interpretation of Article 3 of the European Convention on Human Rights, prior to the judgment of Chahal v United Kingdom, to which the noble Lord, Lord Lester, referred, the European Court of Human Rights had already established that Article 3 prevented extradition or removal where there were substantial grounds for believing that the person would face a real
 
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risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving state.

However, passages in the court's earlier judgment in Soering v United Kingdom referred to the "fair balance" to be struck between individual rights and the interests of the wider community. Soering was decided seven years earlier in 1989. Soering was not itself concerned with national security. However, these passages were relied on by the United Kingdom in Chahal to argue that Article 3 did not prevent expulsion where this was required on national security grounds. This argument was also supported by the exceptions in Articles 32 and 33 of the refugee convention.

The court in Chahal rejected this argument by a majority of 12 to 7. The dissenting judges held that the removing state was entitled to strike a fair balance between the nature of the threat to national security and the potential risk of ill-treatment in the receiving state. We think that the view of the minority was the right one, but I make it clear that we accept whatever conclusion is reached in relation to Article 3.

The second issue rightly identified by the noble Lord, Lord Kingsland, is the use of torture evidence in relation to court proceedings in this country. I make it clear that we would never use torture evidence in relation to criminal proceedings. As noble Lords have rightly identified, the problem arises in respect of SIAC. The dilemma that faces countries is what happens when intelligence is received on which they act, and that act could then be subject to judicial review. Are they entitled to put before the court all the material they have relied on? In many cases, although my noble friend Lady Kennedy of The Shaws says that the ticking time bomb never arises, there will be occasions when there is a legitimate threat identified by a foreign intelligence where the precise source is not known. Should the country act in relation to it? In many circumstances I think they must.

I make it clear that in the case of A, which is going to the House of Lords next week, the Court of Appeal found that there was no evidence that the material relied on had been obtained as a result of torture, but it addressed the issue. The difficulty for any state is whether it should sit by and ignore the evidence it has. That is the dilemma, and that is the dilemma which the House of Lords will address next week. It is the dilemma which the Court of Appeal decided by a majority of two to one that it could understand; that, given material where there was a threat that people might be killed or maimed, they would have to act in relation to it.

It is an incredibly difficult dilemma. Noble Lords should be sympathetic to the problems of a government who are not remotely involved in torture itself but feel an obligation to protect people from being tortured.
 
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