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I recognise the difficulties and frustrations that affect those who have been victims of torture and I am passionate in my determination to ensure that they have the access to justice that they have a right to expect. It must be of concern, however, that a court judgment passed in this country will not necessarily lead to a resolution for those victims of torture, particularly among rogue states that are likely to be most disposed
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Some may argue that affording the courts the opportunity to become involved in passing judgment on the actions of foreign jurisdictions will weaken our strategic relationships with certain foreign Governments. I reject that suggestion. Torture is unacceptable in any country and anything that highlights those who fail to take the necessary action to eradicate it in their respective jurisdictions should be progressed. An example of how this might facilitate that development is clear from the Bill. Foreign states that wish to avoid the humiliating prospect of being sued in our civil courts need only provide their own domestic legal arrangements to afford torture survivors the opportunity to challenge their treatment within those countries’ legal systems.
My final point concerns the dreadful issue of complicity that is implied through the action of rendition. We need to be sure that all future concerns about rendition flights are asserted strongly and in the public domain. However, given the stance that we all take on torture, we have to acknowledge that rendition leading to torture is unacceptable. I would like to see a higher threshold for rendition to third countries and, particularly on the part of the United States, for it to reflect more closely international norms, which go beyond a matter of mere belief that the suspect will not be tortured. These differences of practice and definition are at the root of international concern and their satisfactory resolution would mean that, rather than permanent suspicion and occasional revelations, real trust might be restored for the future.
I wish the Bill well and look forward to taking an active interest during its passage.
10.36 am
Lord Thomas of Gresford: My Lords, I congratulate the noble and learned Lord, Lord Archer of Sandwell, on bringing forward this Bill. I pay tribute to him for his long career in defending human rights, which is much appreciated by those on these Benches. I also congratulate REDRESS, which backed the Bill. The noble Baroness, Lady D’Souza, is at the forefront of its activities but I am pleased to see at least three or four other patrons of that organisation in your Lordships' House today. Their continuing interest in this most important topic is very heartening.
As the noble and learned Lord, Lord Archer, said, we have accepted criminal responsibility in this country under Section 134 of the Criminal Justice Act 1988. In many civil jurisdictions, where civil law appertains, there is, coupled with criminal responsibility, a right for reparation so that in many common law countries and, indeed, in many civil jurisdictions throughout the world, there is the possibility of obtaining precisely the remedy for the individual victim that the Bill advances. It is perhaps one area where we can say that the common law has fallen behind, because the judgment of the House of Lords felt it necessary to put the principle of state immunity before that of dealing with torture.
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The problem can be illustrated in this way. Supposing an Iraqi civilian were to sue the British Government in an Iraqi court; one wonders whether the British Government would bother to turn up to contest that case. If the individual were successful, his case not having been challenged in an Iraqi court, would he then have a right to turn to British assets to recover an award that was made to him by that court? I put the reverse side so that it can be appreciated just how important it is that we in this country provide such a remedy but that we see it in the international context.
Turning to the Bill, as the noble Lord, Lord Sheikh, said a moment ago, torture is adequately defined in Clause 5. I am pleased to see that it covers those who are complicit in torture and not just those who actually carry out the act of torture. That has been a matter of concern to some favourable critics of the Bill who seek to strengthen it. I believe that the definition in Clause 5 covers the position.
Clause 1(2) deals with the forum conveniens point, to which the noble and learned Lord, Lord Archer, referred. One of the fears that there may be in government circles, which may not give their full, wholehearted support to the Bill, is that the courts of this country would be clogged by people who had been in Guantanamo and who were suing the United States Government for torture that had been committed on them in that disgraceful prison. There is a remedy to be obtained in United States courts, and it would not take a moment for the court in this country to stay such an action, because the forum conveniens would undoubtedly be the United States.
That does not necessarily apply everywhere. It could be that a person who had been tortured in a state, with the entire complicity of that state, could never have an adequate remedy, and indeed he would risk his life to go to court in the state where he had been tortured to obtain that remedy. For that purpose, this provision is rightly in place. Amnesty International has a valid criticism in its suggestion that the argument of forum conveniens or forum non conveniens should rest with the defendant state; it would be for the state to prove that the forum chosen was not correct. Maybe that is implicit in the clause as drafted, but it could be made rather more explicit.
The limitation period is six years from the time when it first became reasonably practicable for the person concerned to bring an action. Again, Amnesty has suggested that the burden should be on a defendant state to establish that the limitation period has begun to run; in other words, to say when the six-year period began. It could be argued, frankly, that where torture is concerned there should be no limitation period.
Clause 5(5) deals with acts or omissions that do not constitute torture,
- “if the pain or suffering that is inflicted thereby arises only as a result of sanctions which are held lawful under international law”.
The Baha Musa case is a case study of just such a situation. I declare an interest, as having defended one of the officers charged with neglect in the court martial in that case. It emerged that it was certainly agreed by authority that the shock of capture of an Iraqi person
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Although it is no doubt proper in international law for a captured prisoner to be interrogated, that case demonstrated that it is very easy to slip into something that is much worse and where, outside the way in which the command has permitted activity to occur, further ill treatment occurs. It was never clear in that case, for example, whether hooding was permissible. It had been banned in Northern Ireland; but was it permitted in Iraq? The higher command did not seem to know. The question of whether stress positions were acceptable also entered into it. It can, and did, degenerate to worse than that, where the unfortunate Baha Musa died with 93 marks of injury on his body. I congratulate the Government on finally acceding to the campaign by the solicitor, Mr Shiner, on behalf of Baha Musa’s family, and instigating a public inquiry under a High Court judge, as was announced earlier this week. Let us not, when we are talking about torture, think that it is something that does not affect us. It can be something that we can be concerned about in this country.
The principle behind the Bill is clear cut: that reparation to the victim of torture should come far beyond the arid doctrine of state immunity, which may have commercial advantages and, for all I know, may have diplomatic advantages; and that human rights must be asserted ahead of arid doctrines of that nature.
10.46 am
Lord Judd: My Lords, I, too, start by paying a warm tribute to my noble and learned friend Lord Archer of Sandwell. He was a respected and distinguished law officer in a previous Government of whom I was a part. His outstanding legal ability and integrity have always been clear. As the noble Lord, Lord Thomas of Gresford, said, he has had a lifelong commitment to justice in its fullest sense and to human rights irrespective of national boundaries. He is a challenging, practical humanitarian.
The nature of torture cannot be overemphasised. It is so easy to retreat into arid, academic discussions about torture in a disembodied form. The physical, psychological and emotional damage can be unspeakable, and it can remain with the victim for life. Like other noble Lords, I imagine, I have received a good deal of briefing material from people concerned about the issues raised by the Bill. I do no disservice to the quality of all those representations if I pick out one that struck me very forcefully, which came from Redress, Fair Trials International and Liberty. It uses the example of the case of a mainstream British citizen to spell out the point. I hope that I will be forgiven if I quote from the briefing:
“Les Walker, from Liverpool, was imprisoned in Saudi Arabia in February 2001 for more than 900 days without recourse to any legal remedy. For four months he was kept in total isolation and he was systematically tortured over 10 weeks. He was sentenced to serve 18 years in prison after a secret trial ... Prior to his detention, Les worked as a project manager in Saudi
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That is an example of a Briton, but his story could be repeated even more tellingly countless times across the world.
Financial redress will bring some compensation but, more importantly, the public recognition of solidarity with the victim and, I hope, a deterrent to future use of torture will be the outcomes. There can be no doubt that the victims of torture deserve all possible support. However, while financial compensation can be an important part of this—although, as my noble friend has emphasised, there will always be the question of whether the judgments of a court will be enforced—it can never make good what has happened to the individual.
I wish to pay a strong tribute to the non-governmental organisations and individuals who have worked with victims of torture. It is a highly sensitive and demanding task. They, too, deserve all possible support. Unfortunately, too often, they do not get it.
All those involved in relevant social policy and its implementation at the face-to-face level of the individual and all those involved in the administration of our legal and immigration systems should be helped to understand and have constantly in mind the physical and mental realities of the effect of torture. All need to be alert to detect victims who may not easily speak out about their experiences. Clearly, the Home Office, police, immigration authorities, the Ministry of Justice, the Prison Service, work and pensions, housing administrators, education authorities and local authorities have lead responsibilities in this respect. How our society treats victims is one of the tests of our genuine commitment to the values that we constantly profess as fundamental to our society.
This Bill is focused. The present situation in which recompense can be sought only in a country where torture has happened is unacceptable. What standards can really be expected of the legal and governmental systems in countries where torture is condoned or even endemic? In this context, there is a great deal of perhaps wilfully self-deceptive thinking on the parts of Governments who strike intergovernmental deals supposedly guaranteeing that no torture will be applied to those who are compelled under security policy to return to their country of origin. One cannot help occasionally wondering how much real experience of such countries those involved in these deals have had. Significantly, such deals, by seeking
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Successful cases brought under this Bill would be not only a significant boost to the victim—although implementation of the findings would remain a challenge—but bring accumulating public pressure on the Governments and legal systems at fault. Even where an accused Government are able to sustain a case that the torturer was acting independently of state authority, the very occasion of the court proceedings will bring pressure to tighten up on and eliminate such vile practices.
I have one anxiety about the Bill. We must all constantly beware, lest we inadvertently drift into a culture of de facto acceptance of the existence of torture and a hapless concentration on ameliorating its adverse effects upon the victims—although that is vital. Similarly, the Bill must not inadvertently play into the wishful argument that such things happen only abroad or at the hands of those who serve foreign Governments. Our values and standards within the authority of the United Kingdom must always be exemplary and a high-priority commitment. It is, therefore, disturbing that there have recently been too many indications that we need desperately to reassert those values and standards. What has been, in effect, ambivalence about the use of torture by other states to obtain so-called evidence of use to us is a matter of deep concern.
The greatest challenge is relentlessly to push forward to ensure that sadistic and cruel practice, with all its terrible effects on its victims, coupled with the brutalisation of its practitioners and of the values of their wider community, is globally abolished. Not to recommit ourselves to that struggle demeans us all; it undermines as the core value of our society a commitment to respect the inherent dignity of the individual for the sacrosanct nature of life and for the body as a vehicle for that life.
There has arguably been a weakening of resolve in parts of the world, from which I wish I could say with confidence that we in the United Kingdom have been totally immune. There has been—I must use the word again—ambivalence, let alone appalling official endorsement of waterboarding, so-called soft torture, backed up by totally illegal rendition and the sinister overt or, indeed, covert deals with other Governments and their public servants on interrogation techniques.
Post-Second World War statesmen and stateswomen had it right. With the vivid and grim experience of that war and what led up to it, they spelt it out. Torture is a barbaric and grave crime against civilisation which should be eliminated worldwide. I warmly support this Bill and hope that we shall all rededicate ourselves to this even greater challenge.
10.58 am
Lord Ramsbotham: My Lords, I congratulate the noble and learned Lord, Lord Archer of Sandwell, on his initiative in bringing forward this Bill and, perhaps I may humbly say, on the way that he presented it to the House. I particularly welcomed his remark that the Bill should send a signal on where this country stands
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As the noble and learned Lord, Lord Archer, said, the principle of diplomatic immunity spelt out in the State Immunity Act 1978 is not aimed at protecting torturers. The aim of the Bill is very much to ensure that the victims of torture should have access to justice.
Therefore, I contend that it would ill become a Government who have declared their aim of rebalancing the scales of justice in favour of victims not to accept the Bill and, in doing so, to deny justice for those who seek sanctuary in this country from injustice, including torture, when the fact that they come here to seek sanctuary should be taken as a mark of their belief in what this country stands for. Yet the evidence shows that not only are they currently denied justice but in many ways they are treated disgracefully. We do not know how many people are affected, but I should like to quote some of the interim findings from the commission’s report and then comment on the response that we have had to them. There were two key conclusions, one of which was:
“The Commission has found that the UK asylum system is improved and improving, but ... The system still denies sanctuary to some who genuinely need it and ought to be entitled to it ... and is marred by inhumanity in its treatment of the vulnerable”.
- “a ‘culture of disbelief’ persists among decision-makers ... The adversarial nature of the asylum process stacks the odds against [asylum seekers], especially those who are emotionally vulnerable ... Some of those seeking sanctuary, particularly women, children and torture survivors, have additional vulnerabilities that are not being appropriately addressed”.
The report goes on to explain in some detail:
“Asylum seekers who may have been victims of torture are an additional category of people the Home Office states should only be detained in exceptional circumstances. However, research has shown that victims of torture are detained even in cases where the Home Office has prior information obtained during an asylum interview of an applicant’s past torture. Critics believe that instead of providing special care for torture victims, the Home Office may be subjecting them to the very conditions that are likely to hinder recovery. In addition there is concern that the practice of detention discourages applications from asylum seekers who have experienced torture in their own countries and that the experience of being detained in the UK forces them to relive a painful past”.
The commission then goes on to talk about being,
- “frequently dismayed by the apparent stance of the Home Office in assuming that ... clients are lying to gain asylum. Sometimes they look for inconsistencies as proof of this but we know from our understanding of the nature of trauma that memories can easily become fragmented, particularly when under pressure”.
Finally, in summing up the treatment of torture survivors in the asylum system, the report states that they are frequently not identified and that they are being fast-tracked. It refers to,
- “a lack of understanding among Border and Immigration Agency decision-makers of the reasons why a torture survivor might fail to disclose their experiences”,
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- “the lack of recognition and understanding that expert medical reports may be slow to arrive, or be altogether absent”.
Although those findings may appear to be some distance from the Bill, I have drawn attention to them because I believe that, rather than being looked at in isolation, the Bill should be looked at in the context of this country’s behaviour towards those who seek sanctuary here and particularly towards those who come here having been victims of torture. The commission was therefore extremely distressed—I can put it no stronger than that—at the immediate response to the report by the Minister in the Home Office who, on “The World at One”, said that he had not read it but he rejected every word in it. Had he bothered to read it, he would have seen that those consulted over the long period of 18 months included three former Home Secretaries, the Border and Immigration Agency, the chairman of the all-party group in this House and a vast number of other experts. We were interested in the fact that, despite all the mention of torture and torture victims in the report, the official response from the United Kingdom border agencies to the commission included absolutely no mention at all of the word “torture” or the treatment of any of those who had suffered it.
Yesterday, as the noble Lord, Lord Thomas, pointed out, the Ministry of Defence announced a public inquiry into what one can only say were regrettable incidents involving the British Army in Iraq. I, for one, welcome that. There are many former soldiers who I know do not share that view, but on public inquiries I have always taken the line that if you have nothing to hide, you have nothing to fear. In many ways, I think that the Ministry of Defence will come out the stronger for the fact that it has allowed a public inquiry into this issue. In that same spirit, I say to the Government that they have nothing to fear from sending a signal to the world that those who inflict torture have nowhere to hide from the long arm of the law, particularly in this great country of ours.
11.06 am
Lord Elystan-Morgan: My Lords, I, too, extend my warmest and sincerest congratulations to the noble and learned Lord, Lord Archer, on initiating and drafting the Bill and on the most splendid way in which he presented his case this morning.
Victor Hugo, in 1874, said that torture had virtually been abolished the world over. That was a supremely optimistic remark but most certainly there had been a diminishing curve of popularity in the incidence and use of torture. Even in Greek and Roman times, there were critics and, in the 18th century, Beccaria condemned torture in his monumental work on crime and punishment. The liberal thinkers of France in the latter part of the18th century did likewise.
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